Shri Ashwinbhai B.Pokia, Surat V. The ACIT.Circle-9, Surat

MA 38/SRT/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 0013 (ITAT-SURAT)
• Duration Of Justice: 2 year(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-12-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 03-12-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGLA
• Assessee Lawyers: RASESH SHAH
• Keywords: Unexplained cash credit; Bogus loan; Revised return; Set aside
• Section: 271(1)(c); 274; 251; 192; 254(2); 119

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM MA NO.38/SRT/2018 [ARISING OUT OF ITA NO.1011/AHD/2014] ASSESSMENT YEAR: (2004-05) (VIRTUAL COURT HEARING) ASHWINBHAI B. POKIYA, 61, SAIFY SOCIETY, L.H. ROAD, SURAT-395006. VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-9, SURAT. ./ ./ PAN/GIR NO.: ACKPP5049C (ASSESSEE) (RESPONDENT) ASSESSEE BY : SHRI RASESH SHAH CA RESPONDENT BY : MS ANUPAMA SINGLA SR. DR / DATE OF HEARING : 06/11/2020 /DATE OF PRONOUNCEMENT : 18/12/2020 / O R D E R PER DR. A. L. SAINI, ACCOUNTANT MEMBER: BY WAY OF THE CAPTIONED APPLICATION, THE ASSESSEE HAS SOUGHT TO POINT OUT THAT A MISTAKE APPARENT FROM RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE INCOME TAX ACT, 1961( IN SHORT THE ACT) HAS CREPT IN THE ORDER OF THE TRIBUNAL DATED 31.07.2018. 2. THE CASE OF THE ASSESSEE IN THIS MISCELLANEOUS APPLICATION IS THAT TRIBUNAL HAS LEVIED PENALTY U/S. 271(1)(C) OF THE ACT TO THE TUNE OF RS.7,72,888/-, ON THE BASIS OF THE FINDING GIVEN IN THE QUANTUM PROCEEDINGS, HOWEVER, IT IS WELL SETTLED THAT THE FINDING IN THE QUANTUM PROCEEDINGS ARE NOT CONCLUSIVE AND PENALTY PROCEEDINGS ARE DISTINCT FROM QUANTUM PROCEEDINGS THEREFORE PENALTY U/S. 271(1)(C) OF THE ACT SHOULD NOT BE LEVIED MERELY BASED ON QUANTUM PROCEEDINGS. 3. THE TRIBUNAL HAS LEVIED THE PENALTY IN RESPECT OF THE FOLLOWING LOANS RECEIVED BY THE ASSESSEE: PAGE | 2 MA 38/SRT/2018 AY. 2004-05 ASHWIN B. POKIYA SR. NO. NAME OF THE PARTY DISCLOSED AT THE TIME OF THE SURVEY AND INCLUDED IN THE REVISED RETURN DISCLOSED AT THE TIME OF THE SURVEY AND NOT INCLUDED IN THE REVISED RETURN ADDITIONS MADE BY THE ASSESSING OFFICER - OTHERS 1. ANITA JAIN 5,59,110 2. RAGHUVEER KHANDELWAL 3,62,336 3. BALWANTSINGH CHAUHAN 2,05,816 4. SATISH PATHAK 2,33,195 5. RAMANAND SHARMA 1,96,529 6. BANTY BHUTWALA 4,23,367 7, BHAGWANDAS CHAUDHARY 2,47,049 8. DURLABH SIDDHPURA 49,692 9. KARSHANHAI VARDORIA 52,991 TOTAL 11,27,262 11,00,140 1,02,683 4. WITH HELP OF THE ABOVE CHART, SHRI RASHESH SHAH, LEARNED COUNSEL FOR THE ASSESSEE CONTENDS THAT PENALTY IS NOT LEVIABLE FOR THE CASH CREDIT AS NO EVIDENCE WAS GATHERED IN THE COURSE OF SURVEY THAT ASSESSEE RECEIVED THE BOGUS LOANS AND ADDITION WAS MADE MERELY ON THE BASIS OF STATEMENT OF THAT THIRD PARTY I.E. SHRI JAYANTIBHAI LAKHANI. ASSESSEE FILED THE CONFIRMATION AND OTHER DETAILS IN THE COMPILATION WHICH WAS FILED BEFORE TRIBUNAL AND SAME DETAILS WERE ALSO FILED BEFORE THE ASSESSING OFFICER. THE LD COUNSEL CONTENDS THAT PENALTY SHOULD NOT BE LEVIED IN VIEW OF DECISION OF THE HONOURABLE GUJARAT HIGH COURT IN CASE OF C1T VS. SHANKERLAL NEBHUMAL UTTAMCHANDANI - 311 ITR 0327 (GUJ.), PUNJAB & PAGE | 3 MA 38/SRT/2018 AY. 2004-05 ASHWIN B. POKIYA HARYANA IN CASE OF CIT VS. HUKUM CHAND HARI PRAKASH - 119 TAXMANN 0822 (P&H) (HC) & CIT VS. SURESH CHANDRA MITAL - 251 ITR 9 (SC). THE ASSESSEE ALSO RELIED ON THE DECISION OF CIT VS. SAS PHARMACEUTICALS - 355 ITR 0259 (DEL.)(HC) WHEREIN IT WAS HELD THAT THERE IS NO CONCEALMENT WHEN THE INCOME WAS DISCLOSED IN THE COURSE OF SURVEY. THE COPIES OF THESE DECISIONS WERE FILED AT THE TIME OF THE SURVEY. 5. THE LD COUNSEL FURTHER ARGUES THAT THE ASSESSING OFFICER HAS NOT LEVIED THE PENALTY FOR CONCEALMENT OF INCOME BUT HE LEVIED PENALTY FOR FURNISHING INACCURATE PARTICULARS OF INCOME THEREFORE ASSESSING OFFICER WAS WRONG IN INVOKING THE EXPLANATION 1 TO SECTION 271(1)(C) OF THE ACT AND UNDER SUCH CIRCUMSTANCES THE PENALTY IS NOT LEVIABLE ON UNEXPLAINED CASH CREDIT IN VIEW OF THE DECISION OF HON'BLE GUJARAT HIGH COURT IN CASE OF NATIONAL TEXTILES VS. CIT - 249 ITR 0125 (GUJ.) AND CIT VS. JALARAM OIL MILLS - 253 ITR 192 (GUJ.). IF IT IS UNDERSTOOD THAT THE PENALTY WAS LEVIED FOR CONCEALING THE PARTICULARS OF INCOME AND FURNISHING THE INACCURATE PARTICULARS OF INCOME, THIS CANNOT BE DONE IN VIEW OF THE DECISION OF THE HONOURABLE GUJARAT HIGH COURT IN THE CASE OF SNITA TRANSPORT PVT. LTD. VS. ACIT- 42 TAXMANN.COM 54(GUJ.). ASSESSEE ALSO RELIED ON THE DECISION OF CIT VS. VIRGO MARKETING PVT. LTD. - 171 TAXMAN 156 (DEL.) WHERE IT WAS HELD THAT 'WHERE FROM A READING OF ASSESSMENT ORDER, IT WAS NOT CLEAR AS TO WHY ASSESSING OFFICER CHOSE TO INITIATE PENALTY PROCEEDINGS AGAINST ASSESSEE AND UNDER WHICH PART OF SECTION 271(1)(C), PENALTY IMPOSED UNDER SECTION 271(1)(C) WAS TO BE SET ASIDE. IN ASSESSEE`S CASE THE ASSESSMENT ORDER IS NOT CLEAR ON THIS COUNT. 6. LD COUNSEL CONTENDS THAT TRIBUNAL HAS NOT ADJUDICATED THE FOLLOWING ADDITIONAL GROUND OF THE ASSESSEE: 'ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED ASSESSING AND ID. CIT(A) HAS ERRED IN CONFIRMING THE PENALTY WHEN ASSESSING OFFICER HAD NOT SPECIFIED IN THE NOTICE U/S. 271(1)(C) R.W.S. 274 WHETHER THE PENALTY WAS LEVIABLE FOR CONCEALMENT OF INCOME OR FOR FURNISHING INACCURATE PARTICULARS THEREOF. FOR THIS ADDITIONAL GROUND, ASSESSEE RELIED ON THE FOLLOWING DECISIONS: A. T. ASHOK PAI VS. CIT [2007] 292 ITR 11 (SC) PAGE | 4 MA 38/SRT/2018 AY. 2004-05 ASHWIN B. POKIYA B. MANU ENGINEERING WORKS REPORTED IN [1980] 122 ITR 306 (GUJ)(HC) C. PCIT VS. SMT. BAISETTY REVATHI. ITA NO. 684 OF 2016 (AP.)(HC) D. CITV/S. SAMSON PERINCHERY - TAX APPEAL NO. 1154 OF 2014 (BOM.)(HC) E. CIT V/S. MANJUNATHA COTTON AND GINNING FACTORY & ORS. - 359 ITR 0565 (KAR.)(HC) F. CIT VS. SSA'S EMERALD MEADOWS - SLP NO. 11485/2016 (SC) G. CIT VS. SSA'S EMERALD MEADOWS - ITA NO. 380 OF 2015 (KARN.)(HC) H. SHRI VASANTLAL PRANSHANKAR RAWAL VS. ITO-ITANO.1139/AHD/2016/A.Y.11-12.(SURAT)(TRIB.) 7. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE VEHEMENTLY SUBMITTED THAT THERE IS NO APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL. THE LD COUNSEL ONLY DID THE INTERPRETATION OF VARIOUS CASE LAWS. THE TRIBUNAL HAS CONSIDERED ALL THE ISSUES INCLUDING ISSUES CONTAINED IN THE ADDITIONAL GROUND RAISED BY THE ASSESSEE. THEREFORE, TO EXAMINE THE CASE LAWS IN THE ORDER OF THE ITAT IS NOT AN APPARENT MISTAKE, IT IS JUST REVIEW OF THE ORDER OF THE TRIBUNAL AND THEREFORE THE ORDER OF THE TRIBUNAL SHOULD NOT BE RECALLED. 8. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE NOTE THAT IN QUANTUM PROCEEDINGS IN ASSESSEE`S OWN CASE IN ITA NO.614/AHD/2008, FOR A.Y.2004-05, THE TRIBUNAL HAS DISMISSED THE APPEAL OF THE ASSESSEE AND CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. THE TRIBUNAL HAS CONSIDERED THE CASE LAWS RELIED BY THE ASSESSEE AND CONFIRMED THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT. THE TRIBUNAL HAS ALSO CONSIDERED THAT SINCE IN QUANTUM PROCEEDINGS THE ASSESSEE`S APPEAL WAS DISMISSED AND ADDITIONS SUSTAINED BY THE LD CIT(A), HAS BEEN CONFIRMED. WE NOTE THAT LD COUNSEL SUBMITTED VARIOUS CASE LAWS RELATING TO PENALTY UNDER SECTION 271(1)(C) OF THE ACT WHICH RELATES TO INTERPRETATION OF LEGAL ISSUE VIS--VIS FACTS. TO EXAMINE THE LEGAL INTERPRETATION AND TO EXAMINE THE FINDING OF THE TRIBUNAL IS NOTHING BUT REVIEW OF ITS OWN ORDER, WHICH IS NOT PERMITTED UNDER THE ACT. POWER TO RECTIFY AN ORDER, UNDER SECTION 254(2) OF THE ACT IS EXTREMELY LIMITED AND IT DOES NOT EXTEND TO CORRECTING ERRORS OF LAW, OR RE-APPRECIATING FACTUAL FINDINGS. THE PLAIN MEANING OF THE WORD 'APPARENT' IS THAT IT MUST BE SOMETHING WHICH APPEARS TO BE EX-FACIE AND INCAPABLE OF ARGUMENT AND DEBATE. UNDER SECTION 254(2) OF THE ACT, THE TRIBUNAL HAS JURISDICTION ONLY TO RECTIFY MISTAKES APPARENT FROM RECORD THAT ARE BROUGHT TO ITS PAGE | 5 MA 38/SRT/2018 AY. 2004-05 ASHWIN B. POKIYA NOTICE, IT CANNOT GO INTO THE MERITS OF THE APPEAL AGAIN. THEREFORE, WE DISMISS THE MISCELLANEOUS APPLICATION OF THE ASSESSEE. 9. IN THE RESULT, THE MISCELLANEOUS APPLICATION (IN MA.38/SRT/2018 FOR AY.2004-05) OF THE ASSESSEE IS DISMISSED. ORDER IS PRONOUNCED ON 18/12/2020, AS PER RULE 34 OF INCOME TAX APPELLATE TRIBUNAL, RULE 1963. SD/- SD/- (PAWAN SINGH) (DR. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER LWJR /SURAT / DATE: 18/12/2020 SAMANTA, PS COPY OF THE ORDER FORWARDED TO 1. THE ASSESSEE 2. THE RESPONDENT 3. THE CIT(A) 4. PR.CIT 5. DR/AR, ITAT, SURAT 6. GUARD FILE BY ORDER // TRUE COPY // ASSISTANT REGISTRAR/SR. PS/PS ITAT, SURAT