Sri M Mahesh, Visakhapatnam v. The ITO, Ward-1(1), Visakhapatnam

ITA 283/VIZ/2010 | 2003-2004
Pronouncement Date: 30-12-2010 | Result: Allowed

Appeal Details

RSA Number 28325314 RSA 2010
Assessee PAN ADPPM7522H
Bench Visakhapatnam
Appeal Number ITA 283/VIZ/2010
Duration Of Justice 7 month(s) 23 day(s)
Appellant Sri M Mahesh, Visakhapatnam
Respondent The ITO, Ward-1(1), Visakhapatnam
Appeal Type Income Tax Appeal
Pronouncement Date 30-12-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 30-12-2010
Date Of Final Hearing 27-12-2010
Next Hearing Date 27-12-2010
Assessment Year 2003-2004
Appeal Filed On 07-05-2010
Judgment Text
ITA 283/VIZ/2010 M MAHESH VSKP IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV JUDICIAL MEMBER AND SHRI BR BASKARAN ACCOUNTANT MEMBER ITA NO. 283 /VIZAG/ 20 10 ASSESSMENT YEAR : 2003 - 04 SRI M. MAHESH VISA KHAPATNAM ITO WARD - 1(1) VISAKHAPATNAM (APPELLANT) VS. (RESPONDENT) PAN NO.ADPPM 7522H APPELLANT BY: SHRI C.V.S. MURTHY CA RESPONDENT BY: SHRI D.S. SUNDER SINGH SR. AR ORDER PER SHRI S.K. YADAV JUDICIAL MEMBER : - THIS APPEAL IS PREFERRED BY T HE ASSESSEE AGAINST THE ORDER OF THE CIT(A) CONFIRMING THE PENALTY LEVIED U/S 271(1)(C) OF THE I.T. ACT. 2. THE FACTS BORNE OUT FROM THE RECORD ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER HAS NOTED CERTAIN CASH CREDITS IN T HE NAME OF SOME PERSONS AND THE BANK DEPOSITS IN THE BANK. THE ASSESSEE HAS FURNISHED THE EXPLANATIONS WITH REGARD TO THE SOURCE OF DEPOSITS AND THE A.O. PARTLY ACCEPTED THE SAME. HE HOWEVER MADE THE ADDITIONS OF UNEXPLAINED CASH CREDIT OF RS.5 LAKHS IN THE NAME OF MRS. R.K. RUKMINI AND RS.5 18 000/ - AS UNEXPLAINED DEPOSITS IN BANK ON DIFFERENT DATES. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A) ON BOTH THE ISSUES . W ITH REGARD TO THE DEPOSITS I N THE NAME OF MRS. R.K. RUKMINI T HE ADDITION WAS CON FIRMED BY THE CIT(A) AND WITH REGARD TO THE UNEXPLAINED CREDIT WITH THE BANK THE CIT(A) PARTLY ACCEPTED THE EXPLANATION OF THE ASSESSEE AND RESTRICTED THE ADDITION TO RS.2 18 000/ - . THE ADDITION OF RS.5 LAKHS IN THE NAME OF MRS. R.K. RUKMINI WAS CHALLENGE D IN APPEAL BEFORE THE TRIBUNAL AND FINALLY TRIBUNAL DELETED THE ADDITIONS. THE ORDER OF THE TRIBUNAL IS ALSO PLACED ON RECORD. ITA 283/VIZ/2010 M MAHESH VSKP 2 3. ON CONFIRMATION OF THESE ADDITIONS BY THE CIT(A) THE A.O. INITIATED THE PENALTY U/S 271(1)(C) WHICH WAS CONFIRMED BY THE C IT(A). NOW THE ASSESSEE IS BEFORE US WITH THE SUBMISSION THAT PENALTY WITH REGARD TO THE ADDITION MADE ON ACCOUNT OF UNEXPLAINED CASH CREDIT IN THE NAME OF R.K. RUKMINI CANNOT BE SUSTAINED AS THE ADDITION HAS BEEN DELETED BY THE TRIBUNAL. SO FAR AS DEPOS ITS IN THE BANK ACCOUNT OF RS.2 18 000 / - IS CONCERNED THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT HE HAS FURNISHED THE EXPLANATIONS BEFORE THE LOWER AUTHORITIES. BUT THEY HAVE PARTLY ACCEPTED THE CLAIM OF THE ASSESSEES AND OUT OF TOTAL ADDITION O F RS.5 18 000/ - A RELIEF OF RS.3 LAKHS WAS GRANTED BY THE CIT(A). THEREFORE THE ADDITION SUSTAINED BY THE CIT(A) WAS ONLY FOR THE NON - ACCEPTANCE OF THE EXPLANATIONS FURNISHED BY THE ASSESSEES. THE LD. COUNSEL FOR THE ASSESSEE FURTHER CONTENDED THAT IT IS A SETTLED POSITION OF LAW THAT FOR NON - ACCEPTANCE OF THE EXPLANATION OF THE ASSESSEE AN ADDITION CAN BE SUSTAINED BUT PENALTY U/S 271(1)(C) SHOULD NOT BE LEVIED UNLESS AND UNTIL THE ASSESSING OFFICER IS ABLE TO PROVE THAT THE EXPLANATION FURNISHED BY T HE ASSESSEE IS TOTALLY FALSE AND THE ASSESSEE IS GUILTY OF CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS. IN THE INSTANT CASE THE A.O. HAS MADE VARIOUS ADDITIONS U/S 68 AND DURING THE APPELLATE PRO CEEDINGS ALL ADDITIONS EXCEPT AN ADDITION OF RS.2 18 000/ - WERE DELETED. THEREFORE IT IS A CASE OF MERE NON - ACCEPTANCE OF THE EXPLANATION OF THE ASSESSEES FOR WHICH PENALTY U/S 271(1)(C) SHOULD NOT BE LEVIED. 4. THE LD. D.R. PLACED A RELIANCE UPON THE ORDER OF THE CIT(A). 5. HAVING CAREFULLY EXAMINED THE ORDER OF THE LOWER AUTHORITIES IN THE LIGHT OF RIVAL SUBMISSIONS WE FIND THAT THESE ADDITIONS WERE MADE U/S 68 IN THE HANDS OF THE ASSESSEES BUT DURING THE COURSE OF APPELLATE PROCEEDINGS MOST OF THE ADDITIONS WERE DELETED AFTER HAVING SATISF IED WITH THE EXPLANATIONS FURNISHED BY THE ASSESSEES. BUT THE BANK DEPOSITS WITH RESPECT TO RS.2 18 000/ - THE EXPLANATIONS FURNISHED BY THE ASSESSEES WAS NOT ACCEPTED BY THE LOWER AUTHORITIES. THEREFORE THE ADDITIONS WERE MADE ON ACCOUNT OF NON - ACCEPTA NCE OF THE EXPLANATIONS OF THE ASSESSEES BUT THAT DOES NOT MEAN THAT ASSESSEE IS GUILTY OF CONCEALMENT OF INCOME OR FURNISHED INACCURATE PARTICULARS. IN ORDER TO BRING THE ASSESSEE WITHIN THE 4 CORNER OF ITA 283/VIZ/2010 M MAHESH VSKP 3 PROVISIONS OF SECTION 271(1)(C) OF THE ACT THE ONU S IS UPON THE A.O. TO BRING SOME MATERIAL ON RECORD TO ESTABLISH THAT THE ASSESSEE HAS EITHER CONCEALED THE INCOME OR HAS FURNISHED THE INACCURATE PARTICULARS. SINCE IN THE INSTANT CASE THE ADDITION OF RS.2 18 000/ - ON ACCOUNT OF UNEXPLAINED BANK DEPOSITS WAS MADE FOR NON - ACCEPTANCE OF THE ACCEPTANCE OF EXPLANATIONS OF THE ASSESSEES WE ARE OF THE VIEW FOR THESE REASONS ONLY ADDITION CAN BE MADE BUT PENALTY U/S 271(1)(C) SHOULD NOT BE LEVIED. WE THEREFORE DO NOT FIND ANY MERIT IN THE PENALTY LEVIED U/S 27 1(1)(C). ACCORDINGLY WE SET ASIDE THE ORDER OF THE CIT(A) AND DELETE THE PENALTY. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON 30.12 .20 10 SD/ - SD/ - (BR BASKARAN) (SUNIL KUMAR YADAV) ACCOUNTANT M EMBER JUDICIAL MEMBER VG/SPS VISAKHAPATNAM DATED 30 TH DECEMBER 20 10 COPY TO 1 M. MAHESH DR.NO.27 - 4 - 50/1 MAIN ROAD VISAKHAPATNAM 2 ITO WARD - 1(1) VISAKHAPATNAM 3 THE CI T VISAKHAPATNAM 4 THE CIT (A) VISAKHAPATNAM 5 THE DR ITAT VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM