Shri Harshilbhai J.Deliwala, Surat v. The Income tax Officer,Ward-3(3),, Surat

ITSSA 202/AHD/2010 | 2004-2005
Pronouncement Date: 03-02-2012 | Result: Allowed

Appeal Details

RSA Number 20220516 RSA 2010
Assessee PAN ABGPD9207R
Bench Ahmedabad
Appeal Number ITSSA 202/AHD/2010
Duration Of Justice 1 year(s) 11 month(s) 1 day(s)
Appellant Shri Harshilbhai J.Deliwala, Surat
Respondent The Income tax Officer,Ward-3(3),, Surat
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 03-02-2012
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 03-02-2012
Date Of Final Hearing 10-01-2012
Next Hearing Date 10-01-2012
Assessment Year 2004-2005
Appeal Filed On 02-03-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD A BENCH . .. . . .. . !'# !'# !'# !'# $ $ $ $ . .. . . .. .%&' %&' %&' %&' %( ) %( ) %( ) %( ) % # % # % # % # BEFORE S/SHRI G.C. GUPTA VICE-PRESIDENT AND A. L. GEHLOT ACCOUNTANT MEMBER) IT(SS)A. NO.201 AND 202/AHD/2010 [ASSTT.YEAR : 1999-2000 AND 2004-2005] SHRI HARSHILBHAI J. DELIWALA 4 SHIVANGI BUNGLOWS NR. HOTEL GATEWAY PARLE POINT ATHWALINES SURAT. PAN : ABGPD 9207 R /VS. ITO WARD-3(3) SURAT. ( (( (+ + + + / APPELLANT) ( (( (-.+ -.+ -.+ -.+ / RESPONDENT) /' 0 1 %/ ASSESSEE BY : WRITTEN SUBMISSIONS ) 0 1 %/ REVENUE BY : SHRI G.S.SOURYAVANSHI 3 0 '4(/ DATE OF HEARING : 10 TH JANUARY 2012 5&6 0 '4(/ DATE OF PRONOUNCEMENT : 03-02-2012 %7 / O R D E R PER G.C. GUPTA VICE-PRESIDENT: THESE TWO APPEALS OF THE ASSESSEE FOR A.Y.1999-2000 AND 2004-2005 ARE DIRECT ED AGAINST THE ORDERS OF THE COMMISSIONER OF INCOME-TAX (APPEALS). SINCE IDENTICAL ISSUE IS INVOLVED IN BOTH THE APPEALS THESE ARE BE ING DISPOSED OF WITH THIS CONSOLIDATED ORDER. 2. AT THE TIME OF HEARING NONE APPEARED ON BEHALF OF THE ASSESSEE. HOWEVER THE ASSESSEE HAS FILED WRITTEN SUBMISSIONS FOR CONSIDERATION WHILE DISPOSING OF THE APPEALS. IN THESE FACTS WE ADJUDICATE THESE TWO APPEALS EX PARTE QUA THE ASSESSEE-APPELLANT ON MERITS AFTER CONSIDERIN G THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE AND A LSO AFTER CONSIDERING THE ARGUMENTS OF THE LEARNED DR. IT(SS)A. NO.201 AND 202/AHD/2010 -2- 3. THE ONLY ISSUE IN THESE APPEALS IS REGARDING VAL IDITY OF PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE ACT AMOUNTIN G TO RS.34 500/- FOR A.Y.1999-2000 AND RS.33 900/- FOR A.Y. 2004-2005. THE ASSESSEE HAS SUBMITTED IN ITS WRITTEN SUBMISSIONS THAT IT HAS FI LED CONFIRMATIONS OF THE CREDITORS BEFORE THE AO AT THE TIME OF THE ASSESSME NT ITSELF AND ALSO CONFIRMATION AND AFFIDAVIT OF THE CREDITORS DURING THE COURSE OF PENALTY PROCEEDINGS. HOWEVER THE ASSESSEE TO AVOID LITIG ATION AND BUY PEACE OF MIND HAD SURRENDERED CASH CREDITS OF RS.1 15 000/- FOR A.Y.1999-2000 AND RS.1 13 000/- FOR A.Y.2004-2005 IN THE BLOCK AS SESSMENT OF THE ASSESSEE. THE ASSESSEE HAS SUBMITTED THAT SURRENDE R OF RS.1 15 000/- FOR A.Y.1999-2000 AND RS.1 13 000/- FOR A.Y.2004-2005 W AS MADE BEFORE THE ISSUE OF ANY SPECIFIC NOTICE INTENDING TO MAKE ADDITION ON THAT ISSUE. THE ASSESSEE SUBMITTED THAT NO EVIDENCE WAS FOUND B Y THE DEPARTMENT REGARDING NON-GENUINENESS OF THE CASH CREDITS EVEN DURING THE SEARCH OPERATION. THE ASSESSEE HAS RELIED ON NUMBER OF DE CISIONS IN ANNEXURE-A FILED ALONG WITH ITS WRITTEN SUBMISSIONS BEFORE THE TRIBUNAL. THE LEARNED DR SUBMITTED THAT THE ASSESSEE WAS GUILTY OF CONCEA LMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. SI NCE IT HAS SURRENDERED THE AMOUNT OF DEPOSITS/LOANS WHICH SHOWS THAT THE C ONFIRMATIONS AND AFFIDAVITS OF THE DEPOSITORS WERE BOGUS. HE SUBMIT TED THAT THE SURRENDER WAS AN AFTER-THOUGHT ON THE PART OF THE ASSESSEE. HE RELIED ON THE ORDERS OF THE AO AND THE CIT(A). 4. WE HAVE CONSIDERED SUBMISSIONS OF THE LEARNED DR AND PERUSED THE ORDERS OF THE AO AND THE CIT(A) AS WELL AS CONS IDERED WRITTEN SUBMISSIONS FILED BY THE ASSESSEE. WE FIND THAT TH ERE WAS SEARCH PROCEEDINGS IN THE GROUP CASES OF THE ASSESSEE ON 2 2-12-2004. THE ASSESSEE HAS FILED ITS RETURN OF INCOME IN RESPONSE TO NOTICE UNDER SECTION 153A(A) OF THE ACT. DURING THE COURSE OF THE ASSES SMENT PROCEEDINGS THE IT(SS)A. NO.201 AND 202/AHD/2010 -3- ASSESSEE HAS SURRENDERED A SUM OF RS.1 15 000/- FOR A.Y.1999-2000 AND RS.1 13 000/- FOR A.Y.2004-2005. THE CLAIM OF THE ASSESSEE WAS THAT IT HAS SURRENDERED THE AMOUNT OF CASH CREDITS TO AVOID LITIGATION AND BUY PEACE OF MIND BEFORE THE ISSUE OF ANY SPECIFIC NOTI CE FROM THE DEPARTMENT INTENDING TO MAKE ADDITION ON THAT ISSUE. THESE SU BMISSIONS OF THE ASSESSEE COULD NOT BE CONTROVERTED ON BEHALF OF THE ASSESSEE BEFORE US. THE ASSESSEE HAS FILED CONFIRMATIONS AND AFFIDAVITS OF THE CREDITORS BEFORE THE AO DURING THE COURSE OF PENALTY PROCEEDINGS AND THIS FACT IS NOT DISPUTED BY THE REVENUE. WE FIND THAT NO INCRIMINA TING MATERIAL WAS FOUND REGARDING THE NON-GENUINENESS OF THE CASH CRE DITS IN QUESTION DURING THE COURSE OF SEARCH PROCEEDINGS. THERE IS NO MATERIAL BROUGHT ON RECORD ON BEHALF OF THE REVENUE TO SUGGEST THAT THE CASH CREDITS WERE BOGUS IN NATURE. THE DEPARTMENT HAS NOT RECORDED T HE STATEMENT OF CASH CREDITORS. THE DEPARTMENT HAS DISPUTED THE SUBMISS IONS OF THE ASSESSEE THAT IT HAS FILED CONFIRMATION OF CREDITORS DURING THE COURSE OF ASSESSMENT PROCEEDINGS BUT THE DEPARTMENT HAS NOT QUESTIONED THE CORRECTNESS OF THE CLAIM OF THE ASSESSEE THAT THE CONFIRMATIONS AND AF FIDAVITS OF THE CREDITORS WERE FILED BEFORE THE AO DURING THE COURSE OF THE P ENALTY PROCEEDINGS. THE PENALTY PROCEEDINGS BEING INDEPENDENT IN NATURE THE AO SHOULD HAVE SUMMONED THE CREDITORS AND THEIR STATEMENTS SH OULD HAVE BEEN RECORDED TO VERIFY THE GENUINENESS OR OTHERWISE OF THE CREDIT ENTRIES DURING THE PENALTY PROCEEDINGS. IN THIS CASE THE DEPARTMENT HAS NOT UNDERTAKEN ANY SUCH EXERCISE. MERELY BECAUSE THE A SSESSEE HAS MADE SURRENDER OF INCOME DURING THE COURSE OF ASSESSMENT PROCEEDINGS TO AVOID LITIGATION IT COULD NOT BE SAID THAT THE ASSESSEE CAN BE PENALISED UNDER SECTION 271(1)(C) OF THE ACT WITHOUT ANY FURTHER M ATERIAL ON RECORD TO PROVE THAT THE CREDIT ENTRIES WERE BOGUS. IN THESE FACTS OF THE CASE WE HOLD THAT IT IS NOT A FIT CASE FOR LEVY OF PENALTY UNDER SECTION 271(1)(C) OF IT(SS)A. NO.201 AND 202/AHD/2010 -4- THE ACT AND WE CANCEL THE SAME FOR BOTH THE ASSESSM ENT YEARS BEFORE US AND THE GROUND OF THE APPEALS OF THE ASSESSEE IS AL LOWED. 5. IN THE RESULT BOTH THE APPEALS OF ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( . .. . . .. .%&' %&' %&' %&' /A.L. GEHLOT) %( ) /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !'# !'# !'# !'# /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR ITAT. BY ORDER DR/AR ITAT AHMEDABAD