VISHNU PRAKASH GOYAL HUF, Jaipur V. ITO, Jaipur

MA 166/JPR/2016

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 5565 (ITAT-JAIPUR)
• Duration Of Justice: 10 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-10-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 09-11-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P R MEENA CIT DHK
• Keywords: Onus to prove

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH HKKXPUN] YS[KK LNL; ,OA JH DQY HKKJR] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM AND SHRI KUL BHARAT, JM M.A. NO. 166/JP/2016 ARISING OUT IF ITA NO. 112/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2006-07. SHRI VISHNU PRAKASH GOYAL HUF, D70, BRIJ VILLA, RESIDENCY ROAD, C SCHEME, JAIPUR. CUKE VS. THE ITO, WARD 6(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAAHV 6805 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI P.R. MEENA ( ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 01.09.2017. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 04/10/2017. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THIS MISCELLANEOUS APPLICATION NO. 166/JP/2016 ARI SING OUT OF ITA NO. 112/JP/2014 PERTAINING TO A.Y. 2006-07 IS FILED BY THE ASSESSEE SEEKING RECTIFICATION OF THE TRIBUNALS ORDER DATED 14.09.2016 PASSED IN ITA NO. 112/JP/2014. 2. LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUB MISSIONS AS MADE IN THE MISCELLANEOUS APPLICATION. THE SUBMISSIONS OF THE ASSESSEE IN APPLICATION ARE REPRODUCED AS UNDER:- 2. IN THIS CASE, THE LOWER AUTHORITIES HAVE LEVIE D THE PENALTY ON 25% OF THE DISALLOWANCE MADE IN RESPECT OF PURCHASES MADE FROM THREE PARTIES, WHO WERE STATED TO BE NOT FOUND AT THEIR GIVEN ADDRESS. IN COURSE OF HEARING, THE APPLICANT HAS CONTENDED THAT THE THREE PARTIES FROM WHOM IT MADE THE PURCHASES OF EMERALD TUMBLE SHAPE IS LINKED TO EXPO RT SALE AND ITS RATE OF 2 M.A. NO. 166/JP/2016. SHRI VISHNU PRAKASH GOYAL HUF, JAIPUR. PURCHASE IS AT THE SAME RATE OR AT A LOWER RATE COM PARED TO THE PURCHASES OF SAME ITEM FROM OTHER PARTIES. IT WAS ALSO STATED TH AT, THE ASSESSEE BY LETTER DATED 22.11.2008 REPRODUCED AT PAGE 3 OF THE ASSESS MENT ORDER, HAS CATEGORICALLY STATED THAT THE PARTIES ARE TRACEABLE AT THE GIVEN ADDRESS AND REQUEST WAS MADE TO DEPUTE THE INSPECTOR AGAIN BUT NO INQUIRY WAS MADE THEREAFTER EITHER IN QUANTUM PROCEEDINGS OR IN PENA LTY PROCEEDINGS. THE DISALLOWANCE SO MADE IN THUS ON ESTIMATION AND IN V IEW OF THE DECISION OF JAIPUR & MUMBAI 1TAT ON SIMILAR FACTS, PENALTY IS N OT LIABLE. 3. THE HONBLE ITAT WHILE DECIDING THIS ISSUE AGAI NST THE ASSESSEE, OBSERVED THAT SEPARATE INQUIRIES ARE NOT REQUIRED T O BE CONDUCTED BY THE A.O. AT THE STAGE OF PENALTY AS THE ASSESSEE HAS FAILED TO DISCHARGE THE INITIAL ONUS OF PROVING THE GENUINENESS OF THE PARTIES FROM WHOM THE SAID THREE BILL WERE ISSUED AND THAT NO SEPARATE PROCEEDINGS ARE REQUIRE D AT THE STAGE OF DETERMINING THE PENALTY AGAINST THE ASSESSEE IN THE PENALTY PROCEEDINGS. IN THIS CONNECTION REFERENCE WAS MADE TO THE DECISION OF HONBLE DELHI HC REPORTED AT 67 TAXMAN.COM 344. 4. THE HONBLE ITAT HAS RELIED ON THE DECISION OF DELHI HC FOR THE PROPOSITION THAT SEPARATE INQUIRES ARE NOT REQUIRED TO BE CONDUCTED BY THE A.O. AT THE STAGE OF PENALTY AS THE ASSESSEE HAS FA ILED TO DISCHARGE THE INITIAL ONUS OF PROVING THE GENUINENESS OF THESE THREE PART IES. THIS DECISION IS NEITHER REFERRED BY THE ASSESSEE NOR REFERRED BY TH E DEPARTMENTAL REPRESENTATIVE. THEREFORE, THE ORDER OF HONBLE ITA T BASED ON THIS DECISION WHICH IS NOT ARGUED BEFORE IT IS A MISTAKE APPARENT ON RECORD AS HELD BY HONBLE JAIPUR TRIBUNAL IN CASE OF LATE SMT. RADHA DEVI AGARWAL VS. ITO ORDER DT. 08.07.2011 IN MA NO. 16/JP/11 ARISING OUT OF ITA NO. 465/JP/10 (COPY ENCLOSED) AND BY THIRD MEMBER DECISION IN CAS E OF DEEPAK DALELA (2014) 161 DTR 0718 (JD) (TM). 5. IN CASE OF DELHI HC RELIED BY HONBLE ITAT THE FACT ARE DIFFERENT FROM 3 M.A. NO. 166/JP/2016. SHRI VISHNU PRAKASH GOYAL HUF, JAIPUR. THE ASSESSEES CASE IN AS MUCH AS, THE A.O. IN THE ASSESSMENT PROCEEDINGS OFFERED ON OPPORTUNITY TO CROSS EXAMINE THE CONCERN ED PERSON BUT ASSESSEE EXPRESSED ITS INABILITY TO CROSS EXAMINE. FURTHER, IN THIS CASE, THE STATEMENT OF OTHER PARTIES WAS ALSO RECORDED WHICH ESTABLISHED T HAT PAYMENT OF COMMISSION MADE IS BOGUS. IN THE PRESENT CASE, A.O. HAS NOT RECORDED STATEMENT OF ANY OF THESE PARTIES IN SPITE OF THE A SSERTION OF THE ASSESSEE THAT THESE PARTIES ARE AVAILABLE AT THE ADDRESS GIVEN. H ENCE THE FACTS OF THE ASSESSEES CASE ARE ENTIRELY DIFFERENT THEN THE FAC TS OF DECISION OF DELHI HC RELIED BY HONBLE ITAT. THEREFORE, RELYING ON THIS DECISION WITHOUT GIVING AN OPPORTUNITY TO THE ASSESSEE IS A MISTAKE APPARENT O N RECORD. 6. HONBLE ITAT AT PARA 9 OF THE ORDER, HAS HELD THAT SEPARATE INQUIRIES OF THE PROCEEDINGS WERE NOT REQUIRED TO BE CONDUCTE D BY THE A.O. AT THE STAGE OF PENALTY PROCEEDINGS. IN HOLDING SO, IT HAS NOT CONSIDERED THE DECISION OF SUPREME COURT IN CASE OF T. ASHOK PAI VS. CIT 29 2 ITR 001 1 WHERE IT WAS HELD THAT THE BURDEN OF PROOF IN PENALTY PROCEEDING S VARIES FROM THAT IN THE ASSESSMENT PROCEEDING, A FINDING IN AN ASSESSMENT P ROCEEDING THAT A PARTICULAR RECEIPT IS INCOME CANNOT AUTOMATICALLY B E ADOPTED, THOUGH A FINDING IN THE ASSESSMENT PROCEEDING CONSTITUTES GOOD EVIDE NCE IN THE PENALTY PROCEEDING. IN THE PENALTY PROCEEDINGS, THUS, THE A UTHORITIES MUST CONSIDER THE MATTER AFRESH AS THE QUESTION HAS TO BE CONSIDE RED FROM A DIFFERENT ANGLE. THUS, PENALTY PROCEEDINGS ARE SEPARATE FROM ASSESSM ENT PROCEEDINGS AND PENALTY CANNOT BE LEVIED SOLELY ON THE BASIS OF REA SONS GIVEN IN THE ASSESSMENT PROCEEDINGS IN AS MUCH AS FINDINGS GIVEN IN ASSESSMENT PROCEEDINGS ARE NOT CONCLUSIVE. SIMILAR FINDING IS GIVEN BY THE SUPREME COURT IN THE CASE OF CIT V. KHODAY ESWARA & SONS (1972) 8 3 ITR 369, CIT V. ANWAR ALI (1970) 76 ITR 696 AND ANANTHARAM VEERASINGHAIAH & CO. VS. (1980) CIT 123 ITR 457. THEREFORE, NON CONSIDERATION OF THESE JUDGMENTS OF APEX COURT IS A MISTAKE APPARENT ON RECORD. 4 M.A. NO. 166/JP/2016. SHRI VISHNU PRAKASH GOYAL HUF, JAIPUR. 7. IT IS SUBMITTED THAT. HONBLE ITAT WHILE CONFI RMING THE LEVY OF PENALTY, HAS NOT GIVEN ANY FINDING ON THE OTHER ARG UMENTS OF THE APPELLANT. IT IS A FACT ON RECORD THAT BOTH THE A.O. AND CIT(A) H AVE HELD THAT PURCHASES AS PER THE BILLS ISSUED BY THESE THREE PARTIES HAVE BE EN MADE AND THAT THE SAME WAS EXPORTED. THE ASSESSEE HAS DEMONSTRATED FROM TH E PAPERS FILED IN THE PAPER BOOK THAT THE ITEMS PURCHASED AS PER THESE BI LLS STOOD EXPORTED. IT IS ALSO DEMONSTRATED THAT THE RATE AT WHICH PURCHASES WERE MADE FROM THESE THREE PARTIES ARE AT SAME RATE OR AT LOWER RATE WHE N COMPARED WITH THE RATE WHERE PURCHASES ARE ACCEPTED BY THE A.O. THESE FACT S PROVE THAT PURCHASES WERE MADE AND THERE IS NO INFLATION IN THE PURCHASE S SO MADE BUT THE LOWER AUTHORITIES ON ESTIMATION DISALLOWED 25% OF THE PUR CHASES ON THE GROUND THAT THE PARTIES COULD NOT BE VERIFIED. NON CONSIDERATIO N OF THESE VITAL FACTS WHILE CONFIRMING THE LEVY OF PENALTY IS A MISTAKE APPAREN T ON RECORD. 3. LD. DEPARTMENTAL REPRESENTATIVES OPPOSED THE SUB MISSIONS AND SUBMITTED THAT, THERE IS NO MISTAKE APPARENT FROM RECORD. BY WAY OF THE PRESENT APPLICATION THE ASSESSEE IS SEEKING THE REVIEW OF THE ORDER. 4. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDER SOUGHT TO BE RECTIFIED. THERE IS NO DISPUTE WITH REGARD TO THE FACT THAT THE SCOPE OF SECTION 254(2) OF THE ACT IS TO THE EXTENT OF ANY MISTAKE APPARENT FROM RECORD. THE TRIBUNAL CANNOT RE-APPR ECIATE THE LAW AND THE FACTS IN THE GARB OF RECTIFYING THE MISTAKE. IF THERE IS AN Y NON-APPRECIATION OF FACT IN A PARTICULAR MANNER WHICH AS PER ASSESSEE SHOULD HAVE BEEN DONE, WOULD NOT CONSTITUTE A MISTAKE. THE GRIEVANCE OF THE ASSESSE E IS THAT THE TRIBUNAL HAS CONSIDERED THOSE DECISIONS WHICH WERE NOT CITED DUR ING THE COURSE OF HEARING. SECTION 254(2) OF THE ACT DOES NOT PERMIT THE TRIBU NAL TO REVIEW ITS ORDER. THE RE- 5 M.A. NO. 166/JP/2016. SHRI VISHNU PRAKASH GOYAL HUF, JAIPUR. APPRECIATION OF FACTS, WITHOUT ANY APPARENT FACTUAL ERROR IN THE NATURE OF FACTS AND FIGURES WOULD NOT FALL IN THE REALM OF RECTIFICATIO N UNDER SECTION 254(2) OF THE ACT. HENCE, THE PRESENT APPLICATION IS BEYOND THE SCOPE OF THE SECTION 254(2) OF THE ACT. THEREFORE, SAME IS HEREBY DISMISSED. 5. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON WEDNESDAY , THE 04 TH DAY OF OCTOBER 2017. SD/- SD/- ( HKKXPUN ( DQY HKKJR ) ( BHAGCHAND) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 04/10/2017. POOJA/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SHRI VISHNU PRAKASH GOYAL HUF, JA IPUR. 2. THE RESPONDENT THE ITO, WARD 6(2), JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (MA NO. 166/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR