Shri Shailesh J.Jogani, Surat v. The ACIT.,Circle-6,, Surat

ITA 4035/AHD/2008 | 2004-2005
Pronouncement Date: 09-09-2011 | Result: Allowed

Appeal Details

RSA Number 403520514 RSA 2008
Assessee PAN AEBPJ3548M
Bench Ahmedabad
Appeal Number ITA 4035/AHD/2008
Duration Of Justice 2 year(s) 8 month(s) 24 day(s)
Appellant Shri Shailesh J.Jogani, Surat
Respondent The ACIT.,Circle-6,, Surat
Appeal Type Income Tax Appeal
Pronouncement Date 09-09-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 09-09-2011
Date Of Final Hearing 01-09-2011
Next Hearing Date 01-09-2011
Assessment Year 2004-2005
Appeal Filed On 15-12-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD BEFORE SHRI MUKUL KUMAR SHRAWAT JUDICIAL MEMBER AND SHRI A. K. GARODIA ACCOUNTANT MEMBER I.T.A. NO.4035 / AHD/2008 (ASSESSMENT YEAR 2004-05) SHRI SHAILESH J JOGANI 304 RIKHAV CHAMBERS MAHIDHRPURA SURAT VS. ACIT CIRCLE 6 SURAT PAN/GIR NO. : AEBPJ3548M (APPELLANT) .. (RESPONDENT) APPELLANT BY: NONE RESPONDENT BY: SHRI D C SHARMA SR. DR DATE OF HEARING: 01.09.2011 DATE OF PRONOUNCEMENT: 09.09.2011 O R D E R PER SHRI A. K. GARODIA AM:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A) IV SURAT DATED 25.09.2008 FOR THE ASSESSME NT YEAR 2004-05. VARIOUS GROUNDS ARE RAISED BY THE ASSESSEE BUT THE ONLY GRIEVANCE OF THE ASSESSEE IS REGARDING CONFIRMATION OF PENALTY IMPOS ED BY THE A.O. OF RS.30 000/- U/S 271(1(C). 2. NONE APPEARED ON BEHALF OF THE ASSESSEE IN SPITE OF NOTICE WHICH HAS BEEN DULY SERVED ON THE ASSESSEE BY THE DEPARTM ENT AS PER THE ACKNOWLEDGEMENT AVAILABLE ON RECORD AND HENCE WE P ROCEED TO DECIDE THIS APPEAL OF THE ASSESSEE EX-PARTE QUA THE ASSESS EE. LD. D.R. OF THE REVENUE SUPPORTED THE ORDERS OF AUTHORITIES BELOW. 3. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD. D. R. OF THE REVENUE AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BEL OW. WE FIND THAT IT IS I.T.A.NO. 4035 /AHD/2008 2 NOTED BY THE A.O. IN THE ASSESSMENT ORDER THAT THE ASSESSEE HAS DEPOSITED THE CASH OF RS.1 LACS ON 25.03.2004 IN HIS VAISYA B ANK ACCOUNT. IT WAS THE EXPLANATION OF THE ASSESSEE THAT HE HAS WITHDRA WN RS.1 LACS FORM THE PARTNERSHIP FIRM S. JOGANI & CO. AND THE MONEY HAS BEEN DEPOSITED IN THE VAISYA BANK ACCOUNT. THE A.O. DID NOT ACCEPT THE E XPLANATION ON THIS BASIS THAT THE RELEVANT WITHDRAWAL WAS ON 29.01.200 4 AND THE CLAIM REGARDING CASH DEPOSIT IN BANK IS ON 25.03.2004 I.E . AFTER A LAPSE OF TIME OF ABOUT 3 MONTHS. THE A.O. MADE ADDITION OF THIS CASH DEPOSIT BY HOLDING THAT IT IS OUT OF THE UNDISCLOSED INCOME. I N THE QUANTUM PROCEEDINGS THE ADDITION WAS CONFIRMED BY THE LD. CIT(A) AS HAS BEEN NOTED BY THE A.O. IN THE PENALTY ORDER BUT THIS FAC T IS NOT AVAILABLE BEFORE US AS TO WHETHER ANY FURTHER APPEAL IN THE QUANTUM PROCEEDINGS WAS FILED BY THE ASSESSEE BEFORE THE TRIBUNAL OR NOT. IN THE MEANTIME THE A.O. INITIATED PENALTY PROCEEDINGS AND IMPOSED PENALTY O F RS.30 000/- U/S 271(1)(C). AGAINST THE PENALTY ORDER ALSO THE ASS ESSEE WAS IN APPEAL BEFORE CIT(A) BUT WITHOUT SUCCESS. 4. AFTER CONSIDERING THE ENTIRE FACT OF THE PRESENT CASE WE FEEL THAT ALTHOUGH THE ADDITION HAS BEEN CONFIRMED BY LD. CIT (A) AND IT APPEARS THAT THE ASSESSEE HAS NOT CARRIED THE MATTER IN FUR THER APPEAL BEFORE THE TRIBUNAL IN QUANTUM PROCEEDINGS BUT CONSIDERING TH E FACTS OF THE PRESENT CASE WE FEEL THAT PENALTY IN THE PRESENT CASE IS N OT JUSTIFIED. WE FEEL THAT AS REGARDING THE SOURCE OF CASH DEPOSITED IN THE BA NK ON 25.3.2004 AN EXPLANATION HAS BEEN FURNISHED BY THE ASSESSEE THAT THE SAME IS OUT OF CASH WITHDRAWN FROM THE FIRM ON 29.01.2004. BECAUS E OF TIME GAP OF AROUND 2 MONTHS THIS EXPLANATION OF THE ASSESSEE W AS NOT ACCEPTED BY THE AUTHORITIES BELOW IN QUANTUM PROCEEDINGS AND IN PEN ALTY PROCEEDINGS BUT WE FEEL THAT FOR IMPOSITION OF PENALTY MERE NOT AC CEPTING THE EXPLANATION OF THE ASSESSEE IS NOT SUFFICIENT AND SOMETHING ADD ITIONAL HAS TO BE I.T.A.NO. 4035 /AHD/2008 3 BROUGHT OUT ON RECORD. NOTHING HAS BEEN BROUGHT OU T ON RECORD BY THE REVENUE TO SHOW THAT THE CASH WITHDRAWN BY THE ASSE SSEE FROM THE FIRM ON 29.01.2004 WAS PUT TO SOME OTHER USE BY THE ASSESSE E WHETHER PARTLY OR FULLY. THE REVENUE HAS REJECTED THE EXPLANATION OF THE ASSESSEE ON THIS BASIS THAT IF THE ASSESSEE WAS HAVING CASH OF RS.1 LACS ON 29.1.2004 THEN WHY HE HAS AGAIN WITHDRAWN RS.10 000/- ON 31.01.200 4 INSTEAD OF USING THE CASH ALREADY LYING WITH HIM. IN OUR CONSIDERED OPINION THIS IS NOT ALWAYS TRUE. SOMETIMES A PERSON WITHDRAWS A LARGE AMOUNT FOR SOME SPECIFIC PURPOSE AND HE HOLD THIS AMOUNT TILL SUCH PURPOSES IS FULFILLED OR TILL THERE IS NO SCOPE OF FULFILLMENT OF THE SAID P URPOSE. IN THIS VIEW OF THE MATER THE EXPLANATION OF THE ASSESSEE APPEARS TO B E REASONABLE AT LEAST FOR THE PURPOSE OF DECIDING THE PENALTY ISSUE. CONSIDER ING THIS FACTUAL POSITION WE HOLD THAT IN THE FACTS OF THE PRESENT CASE PENALTY IS NOT JUSTIFIED BECAUSE THE REVENUE COULD NOT ESTABLISH T HE FACTUM OF CONCEALMENT OF INCOME. WHILE HOLDING SO WE ALSO F IND IT RELEVANT THAT IT WAS THE SUBMISSION OF THE ASSESSEE BEFORE THE A.O. IN PENALTY PROCEEDINGS THAT THE A.O. HAS NOT EXAMINED THE CASH BOOK OF THE ASSESSEE TO CHECK WHETHER THE ASSESSEE WAS HAVING CASH BALAN CE AND IN SPITE OF THIS NO FINDING IS GIVEN BY THE A.O. IN THE PENALT Y ORDER THAT HE HAS EXAMINED THE CASH BOOK OF THE ASSESSEE AND ANY DEF ECT WAS FOUND THEREIN. HE HAS SIMPLY STATED IN THE PENALTY ORDER THAT WHAT HAS PREVENTED THE ASSESSEE TO PRODUCE CASH BOOK FOR VERIFICATION BEFORE THE A.O. TO HIS SATISFACTION DURING THE COURSE OF ASSESSMENT PROCEE DINGS. THIS IS BY NOW A SETTLED POSITION OF LAW THAT THE PENALTY PROCEEDI NGS AND ASSESSMENT PROCEEDINGS ARE TWO DISTINCT PROCEEDINGS AND EVEN I F SOME FACTS WEE NOT BROUGHT OUT ON RECORD IN ASSESSMENT PROCEEDINGS TH E SAME CAN BE BROUGHT OUT ON RECORD DURING PENALTY PROCEEDINGS. CONSIDERING THE FACTS I.T.A.NO. 4035 /AHD/2008 4 OF THE PRESENT CASE IN ITS ENTIRETY WE HOLD THAT T HE PENALTY IS NOT JUSTIFIED IN THE PRESENT CASE. WE THEREFORE DELETE THE PEN ALTY. 5. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED . 6. ORDER PRONOUNCED IN THE OPEN COURT ON 09 TH SEP. 2011. SD./- SD./- (MUKUL KUMAR SHRAWAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED : 09.09.2011 SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR AHMEDABAD 6. THE GUARD FILE 1. DATE OF DICTATION 02/09 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER05/09/ 11 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S.06/09 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 09/09/2011 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S. 09/9 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 09.09.2011 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. ..