Avtar Singh Walia, Chamba v. ITO, Banikhet

ITA 167/CHANDI/2015 | 2008-2009
Pronouncement Date: 29-04-2015 | Result: Dismissed

Appeal Details

RSA Number 16721514 RSA 2015
Assessee PAN ANQPS6242R
Bench Chandigarh
Appeal Number ITA 167/CHANDI/2015
Duration Of Justice 2 month(s) 16 day(s)
Appellant Avtar Singh Walia, Chamba
Respondent ITO, Banikhet
Appeal Type Income Tax Appeal
Pronouncement Date 29-04-2015
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 29-04-2015
Assessment Year 2008-2009
Appeal Filed On 12-02-2015
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A CHANDIGARH BEFORE SHRI BHAVNESH SAINI JUDICIAL MEMBER AND SHRI T.R.SOOD ACCOUNTANT MEMBER ITA NO. 167 & 168/CHD/2015 ASSESSMENT YEAR: 2008-09 SHRI AVTAR SINGH WALIA V THE ITO DALHOUSIE CANTT. DALHOUSIE DISTT. CHAMBA (HP). (AT BANIKHET). PAN: ANQPS6242R (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VIJAY ABROL RESPONDENT BY : SHRI S.K. MITTAL DATE OF HEARING : 27.04.2015 DATE OF PRONOUNCEMENT : 29.04.2015 O R D E R PER BHAVNESH SAINI JM BOTH THE APPEALS BY ASSESSEE ARE DIRECTED AGAINST DIFFERENT ORDERS OF LD. CIT(APPEALS) SHIMLA DATED 29.12.2014 FOR ASSESSMENT YEAR 2008-09 CHALLENGING THE CONFIRMATIO N OF THE PENALTY UNDER SECTION 271(1)(C) AND 271A OF THE INC OME TAX ACT. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SEE FILED THE RETURN OF INCOME DECLARING AN INCOME OF RS. 3 02 06 0/- ON 31.03.2009 WHICH WAS ASSESSED AT RS. 5 40 694/- UND ER SECTION 143(3) OF THE ACT VIDE ORDER DATED 09.12.2010. THE ASSESSEE HAD DECLARED NET PROFIT AT RS. 1 48 234/- UNDER SECTION 44AD AS CIVIL CONTRACTOR RS. 42 000/- UNDER SECTION 44AE FOR PLY ING OF TRUCKS RS. 1 97 480/- UNDER SECTION 44AF FROM TOUR AND TRAVEL AND RS. 14 346/- AS INTEREST INCOME. BESIDES THE I NCOME FROM 2 THE ABOVE SOURCES THE ASSESSEE WAS ALSO A LIQUOR C ONTRACTOR AND HAD NOT DISCLOSED THE INCOME FROM THIS SOURCE. WHE N CONFRONTED ASSESSEE INTIMATED THAT IT HAS FILED RE VISED RETURN OF INCOME DECLARING TOTAL INCOME AT RS.5 02 060/- ON 2 6.03.2010. THE ASSESSEE WAS INTIMATED THAT REVISED RETURN WAS NOT A VALID RETURN BY VIRTUE OF SUB-SECTION 5 OF SECTION 139 OF THE ACT AS THE SAME WAS NOT FILED WITHIN THE STATUTORY PERIOD PRES CRIBED. ULTIMATELY THE ASSESSEE ADMITTED THAT THE REVISED RETURN WAS FILED JUST TO AVOID PENALTY PROCEEDINGS UNDER SECTI ON 271(1)(C) OF THE ACT. 3. THE ASSESSING OFFICER MADE ADDITION OF RS. 1 50 000/- ON THIS ACCOUNT. FURTHER THE ASSESSEE DECLARED INTER EST INCOME AT RS. 14 346/-. AS PER BANK DETAILS IT WAS NOTICED THAT ASSESSEE HAD BANK INTEREST OF RS. 42 203/- WITH PUNJAB NATIO NAL BANK DALHOUSIE. BESIDES THIS INTEREST OF RS. 10 777/- FOR TWO MONTHS WAS ALSO TAKEN INTO ACCOUNT AND TOTAL ADDITION UNDE R THIS HEAD WAS MADE AT RS. 38 634/- SINCE THE ASSESSEE DID NOT SHOW THE INCOME FROM LIQUOR BUSINESS INTEREST INCOME FROM T OUR AND TRAVELS AND INTEREST INCOME. THEREFORE PENALTY PR OCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT WERE INITIATED A ND THE ASSESSING OFFICER VIDE SEPARATE ORDER LEVIED THE P ENALTY OF RS. 73 740 UNDER SECTION 271(1)(C) OF THE ACT. 4. THE ASSESSEE CHALLENGED THE PENALTY ORDER BEFORE LD. CIT(APPEALS) AND IT WAS STATED THAT ASSESSEE DISCLO SED ALL THE PARTICULARS OF INCOME IN THE ORIGINAL AND REVISED R ETURN OF INCOME AND ADDITION IS MADE ON ESTIMATE BASIS AND R EVISED RETURN COULD NOT BE FILED DUE TO DOMESTIC REASONS. THE LD. CIT(APPEALS) HOWEVER DID NOT ACCEPT CONTENTION OF THE ASSESSEE 3 BECAUSE THE ASSESSEE HAS NOT DISCLOSED THE INCOME F ROM LIQUOR BUSINESS AND REVISED RETURN WAS FILED BEYOND THE ST ATUTORY PERIOD. THEREFORE PENALTY ORDER WAS CONFIRMED AND APPEAL OF THE ASSESSEE WAS DISMISSED. 5. SIMILARLY ON THE SAME FACTS THE ASSESSING OFFIC ER HELD THAT NET PROFIT OF RS. 1 97 480/- DECLARED FROM BUSINESS OF TOUR AND TRAVELS WAS NOT COVERED UNDER SECTION 44AF OF THE A CT AND THE ASSESSEE WAS REQUIRED TO KEEP AND MAINTAIN THE BOOK S OF ACCOUNT AS PER THE PROVISIONS OF SECTION 44AA OF TH E ACT. SINCE THE ASSESSEE FAILED TO MAINTAIN BOOKS OF ACCOUNT T HEREFORE PENALTY PROCEEDINGS UNDER SECTION 271A WERE INITIAT ED AND IN THE ABSENCE OF ANY EXPLANATION FROM THE SIDE OF ASS ESSEE PENALTY OF RS. 25 000/- WAS LEVIED UNDER SECTION 27 1A OF THE ACT. THE LD. CIT(APPEALS) CONFIRMED THE LEVY OF PE NALTY AND DISMISSED APPEAL OF THE ASSESSEE. 6. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PA RTIES AND PERUSED MATERIAL AVAILABLE ON RECORD. DURING THE C OURSE OF ARGUMENTS LD. COUNSEL FOR THE ASSESSEE ADMITTED TH AT THE INCOME FROM LIQUOR BUSINESS WAS NOT DISCLOSED IN TH E ORIGINAL RETURN OF INCOME. THE ASSESSEE ADMITTEDLY FILED TH E REVISED RETURN BEYOND THE PERIOD OF LIMITATION JUST TO AVOI D THE PENALTY PROCEEDINGS. IT IS WELL SETTLED LAW THAT PENALTY U NDER SECTION 271(1)(C) OF THE ACT IS LEVIABLE IN RESPECT OF CONC EALMENT OF INCOME OR FILING INACCURATE PARTICULARS OF INCOME W ITH REFERENCE TO THE ORIGINAL RETURN OF INCOME. THE ASSESSEE DEL IBERATELY CONCEALED THE INCOME FROM LIQUOR CONTRACT AND HAS N OT DISCLOSED THE INCOME FROM LIQUOR BUSINESS IN THE ORIGINAL RET URN OF INCOME. THEREFORE CLAIM OF ASSESSEE IS WHOLLY INCORRECT TH AT THE ASSESSEE 4 DISCLOSED ALL THE PARTICULARS OF INCOME IN THE ORIG INAL RETURN OF INCOME. SIMILARLY PART OF THE INTEREST WAS NOT DI SCLOSED IN THE RETURN OF INCOME FILED ORIGINALLY. THE REASONS GIV EN BY ASSESSEE FOR FILING THE REVISED RETURN LATE ARE NOT PERMISSI BLE UNDER THE LAW. THEREFORE IT STANDS PROVED THAT ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME FROM LIQUOR BUSINESS AS WELL AS FROM INTEREST INCOME. THEREFORE AUTHORITIES BELOW WERE JUSTIFIED IN LEVYING THE PENALTY AGAINST THE ASSESSEE. 7. THE LD. COUNSEL FOR THE ASSESSEE RELIED UPON DEC ISION OF HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS RAJNISH NATH AGGARWAL 219 CTR 590 (P&H). HOWEVER THE FACTS OF THIS CASE ARE CLEARLY DISTINGUISHABLE FROM THE F ACTS OF THE PRESENT CASE. THE LD. COUNSEL FOR THE ASSESSEE ALSO SUBMITTED THAT ASSESSEE EVEN IF FILED THE REVISED RETURN BE LATEDLY BUT IT WAS VOLUNTARY THEREFORE PENALTY MAY NOT BE LEVIED. THE CONTENTION OF LD. COUNSEL FOR THE ASSESSEE IS REJEC TED. THE HON'BLE SUPREME COURT IN THE CASE OF MAK DATA PVT. LTD. VS CIT 358 ITR 593 HELD THAT THE CONCEPT OF VOLUNTARY SURR ENDER IS NOT APPLICABLE AND THE PENALTY HAS TO BE LEVIED. THERE FORE WE DO NOT FIND ANY MERIT IN THE APPEAL OF THE ASSESSEE WI TH REGARD TO LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. 8. FURTHER IT IS ADMITTED FACT THAT ASSESSEE HAS N OT MAINTAINED ANY BOOKS OF ACCOUNT FOR BUSINESS OF TOU R AND TRAVELS. THE ASSESSEE DECLARED INCOME FROM THIS SO URCE UNDER SECTION 44AF OF THE ACT AND THE AUTHORITIES BELOW H ELD THAT SUCH A BUSINESS IS NOT COVERED BY SECTION 44AF OF THE AC T. THE LD. COUNSEL FOR THE ASSESSEE ALSO ADMITTED DURING THE C OURSE OF ARGUMENTS THAT SECTION 44AF IS NOT APPLICABLE TO SU CH SOURCE OF 5 INCOME. THEREFORE IT STANDS PROVED ON RECORD THAT ASSESSEE FAILED TO KEEP AND MAINTAIN THE BOOKS OF ACCOUNT AS REQUIRED BY SECTION 44AA OF THE ACT. THEREFORE PENALTY WAS CO RRECTLY LEVIED UNDER SECTION 271A OF THE ACT. WE DO NOT FIND ANY MERIT IN THIS APPEAL OF THE ASSESSEE AS WELL. 9. IN THE RESULT BOTH APPEALS OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH APRIL 2015. SD/- SD/- (T.R.SOOD) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29 TH APRIL 2015. POONAM COPY TO: THE APPELLANT THE RESPONDENT THE CIT(A) THE CIT DR ASSISTANT REGISTRAR ITAT CHANDIGARH