ACIT, CHENNAI V. Shri R. Palanivelu, CHENNAI

MA 210/CHNY/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 5078 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-12-2016
• Appeal Filed By: Department
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 02-08-2016
• Court: TRIBUNAL
• Department Lawyers: SUPRIYO PAL
• Keywords: Unexplained cash credit; Rectification of order

Judgement Text

, , IN THE INCOME - TAX APPELLATE TRIBUNAL B BENCH, CHENNAI , . , BEFORE SHRI CHANDRA POOJARI , ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY , JUDICIAL MEMBER M.P. NO. 2 10/MDS/2016 [IN I.T.A.NO. 322 /MDS/2015 ] ASSESSMENT YEAR :201 0 - 1 1 THE ASSISTANT COMMISSIONER OF INCOME TAX, NON CORPORATE CIRCLE 8(1), CHENNAI 600 034. VS. SHRI R. PALANIVELU, NO. 11, DHANALAKSHMI STREET, JANAKI NAGAR, VALASAR AVAKKAM, CHENNAI 87. [PAN: AAKPP6980E] ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI SUPRIYO PAL, JCIT / RESPONDENT BY : NONE / DATE OF HEARING : 3 0.0 9 .2016 / DATE OF P RONOUNCEMENT : 05 . 1 2 .201 6 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : THIS MISCELLANEOUS PETITION IS FILED BY THE REVENUE SEEKING RECTIFICATION OF MISTAKE IN ORDER OF THE TRIBUNAL PASSED IN I.T.A. NO. 322 /MDS/2015 FOR THE ASSESSMENT YEAR 201 0 - 1 1 VIDE ORDER DATED 26.04.2016 . BY REFERRING TO THE PETITION, THE LD. DR HAS SUBMITTED THAT WHILE ADJUDICATING THE ISSUE RAISED BY THE REVENUE WITH REGARD TO PENALTY LEVIED ON ACCOUNT OF ADDITION TOWARDS UNEXPLAINED CREDITORS, M.P . NO . 210 /M/ 1 6 2 THE TRIBUNAL HAS CONCLUDED THAT THER E IS NO ILLEGALITY IN INITIATING PENALTY PROCEEDINGS. HOWEVER, AT PARA 12 IN LAST SENTENCE, IT WAS MENTIONED THAT IN VIEW OF THE ABOVE, WE CONFIRM THE ORDER PASSED BY THE LD. CIT(A) WITH REGARD TO UNCONFIRMED CREDITS . THUS, THERE IS A MISTAKE APPARENT ON RECORD, WHICH REQUIRES TO BE RECTIFIED. WITH REGARD TO PENALTY LEVIED ON ACCOUNT OF DISALLOWANCE OF CLAIM ON VEHICLE MAINTENANCE, THE TRIBUNAL HAS FINALLY DIRECTED THE ASSESSING OFFICER TO DELETE .7,54,375/ - INSTEAD OF PENALTY LEVIED OF .2,23,319/ - . ACC ORDINGLY, THE LD. DR HAS PRAYED THAT THE ABOVE MISTAKE APPARENT ON RECORD MAY BE RECTIFIED. 2. DESPITE ISSUANCE OF NOTICE, NONE APPEARED ON BEHALF OF THE ASSESSEE. HENCE WE PROCEEDED TO DECIDE THE PETITION AFTER HEARING TO THE LD. DR. 3. WE HAVE HEAR D THE LD. DR AND ALSO GONE THROUGH THE ORDER OF THE TRIBUNAL AND FIND THAT BY OVERSIGHT, IN THE LAST SENTENCE AT PARA 12, IT HAS BEEN MENTIONED AS IN VIEW OF THE ABOVE, WE CONFIRM THE ORDER PASSED BY THE LD. CIT(A) WITH REGARD TO UNCONFIRMED CREDITS , WHE REAS, THE TRIBUNAL, AT PARA 12 HAS OBSERVED AS UNDER: 12. IN THE PRESENT CASE, THE ASSESSEE HAS MADE AN ERRONEOUS CLAIM OF DEDUCTION, WHICH INDEED POINTED OUT BY THE ASSESSING OFFICER DURING THE M.P . NO . 210 /M/ 1 6 3 COURSE OF ASSESSMENT PROCEEDINGS AND THE ASSESSEE HAS NOT FU RNISHED THE ADDRESSES OF THE SUNDRY CREDITORS AND MOREOVER, HE HAS NOT FILED CONFIRMATION FROM TWO CREDITORS. THEREFORE, THE CLAIM WAS ADDED BACK TO THE RETURNED INCOME OF THE ASSESSEE. , THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF MAK DATA P. LTD., VS. CIT (SUPRA) RELIED ON BY THE DEPARTMENT IN THE GROUNDS OF APPEAL SQUARELY APPLIES TO THE FACTS OF THE PRESENT CASE IN HAND, WHEREIN, THE HON BLE SUPREME COURT HAS OBSERVED THAT THE EXPLANATION 1 TO SECTION 271(1)(C) OF THE ACT RAISES A PRESUMPTIO N OF CONCEALMENT, WHEN A DIFFERENCE IS NOTICED BY THE ASSESSING OFFICER BETWEEN THE REPORTED AND ASSESSED INCOME. THE BURDEN IS THEN ON THE ASSESSEE TO SHOW OTHERWISE, BY COGENT AND RELIABLE EVIDENCE. WHEN THE INITIAL ONUS PLACED BY THE EXPLANATION, HAS BE EN DISCHARGED BY HIM, THE ONUS SHIFTS TO THE DEPARTMENT TO SHOW THAT THE AMOUNT IN QUESTION CONSTITUTED INCOME AND NOT OTHERWISE. ADMISSION OF ADDITION DOES NOT RELEASE THE ASSESSEE FROM THE MISCHIEF OF PENAL PROCEEDINGS. ACCORDINGLY, WE FIND THAT THERE IS NO ILLEGALITY IN INITIATING PENALTY PROCEEDINGS. IN VIEW OF THE ABOVE, WE CONFIRM THE ORDER PASSED BY THE LD. CIT(A) WITH REGARD TO UNCONFIRMED CREDITS. IT IS EVIDENT FROM THE ABOVE PARA THAT THE TRIBUNAL HAS OBSERVED THAT WHEN A DIFFERENCE IS NOTICED B Y THE ASSESSING OFFICER BETWEEN THE REPORTED AND ASSESSED INCOME, THE BURDEN IS THEN ON THE ASSESSEE TO SHOW OTHERWISE, BY COGENT AND RELIABLE EVIDENCE. ACCORDINGLY, THE TRIBUNAL HAS OBSERVED THAT THERE IS NO ILLEGALITY IN INITIATING PENALTY PROCEEDINGS. W HILE CONCLUDING, IT SHOULD HAVE BEEN MENTIONED THAT - IN VIEW OF THE ABOVE, WE REVERSE THE ORDER PASSED BY THE LD. CIT(A) WITH REGARD TO UNCONFIRMED CREDITS; INSTEAD, IT HAS BEEN MENTIONED AS IN VIEW OF THE ABOVE, WE CONFIRM THE ORDER PASSED BY THE LD. CIT (A) WITH REGARD TO UNCONFIRMED CREDITS , WHICH IS A MISTAKE APPARENT ON RECORD. THEREFORE, WE RECTIFY THE MISTAKE AND IT SHOULD BE READ AS IN VIEW OF THE ABOVE, WE M.P . NO . 210 /M/ 1 6 4 REVERSE THE ORDER PASSED BY THE LD. CIT(A) WITH REGARD TO UNCONFIRMED CREDITS FOR ALL PURPO SES. 4. IT IS A FACT THAT ADDITION OF .7,54,375/ - WAS MADE ON ACCOUNT OF NON - FURNISHING OF BILLS AND VOUCHERS FOR VEHICLE MAINTENANCE. HOWEVER, WHILE DIRECTING THE ASSESSING OFFICER TO DELETE THE PENALTY, THE FIGURE WAS MENTIONED AS .7,54,375/ - AS AGAINST THE ACTUAL PENALTY LEVIED FOR THE DI SALLOWANCE MADE. ACCORDINGLY, THE MISTAKE APPARENT ON RECORD IS HEREBY RECTIFIED AND THUS, IT SHOULD BE READ AS THUS, WE DIRECT THE ASSESSING OFFICER TO DELETE THE PENALTY LEVIED TO THE EXTENT OF .2,23,319 / - , WHICH IS SUPPOSED TO BE THE ACTUAL PENALTY L EVIED BY THE ASSESSING OFFICER. THE ABOVE RECTIFICATIONS MADE SHALL BE EFFECTIVE FROM THE ORIGINAL DATE OF ORDER OF THE TRIBUNAL I.E., 26.04.2016. 5 . IN THE RESULT, THE M.P. FILED BY THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED ON THE 05 TH DECEMBER , 201 6 AT CHENNAI. SD/ - SD/ - ( CHANDRA POOJARI ) ACCOUNTANT MEMBER ( DUVVURU RL REDDY ) JUDICIAL MEMBER CHENNAI, DATED, THE 05 . 1 2 .201 6 VM/ - M.P . NO . 210 /M/ 1 6 5 / COPY TO: 1. / APPELLANT , 2. / RESPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.