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Income Tax Appellate Tribunal, SURAT BENCH, SURAT
Before: SHRI SANDEEP GOSAIN, Honble & SHRI O.P.MEENA, Honble
सुनवाईकीतारीख/ Date of hearing: 04.02.2020 उ�घोषणाक�तार�ख/Pronouncement on: 07.02.2020 आदेश /O R D E R
PER SANDEEP GOSAIN, JM:
This appeal by the Assessee is directed against the order of Ld.Commissioner of Income Tax(Appeals)-V, Surat dated 03.09.2013 for the assessment year 2008-09.
Grounds raised
by the assessee read as under: "1. On the facts and in circumstances of the case as well as law on the subject, the learned Commissioner of Income-tax (Appeals) has erred in confirming the action of assessing officer in levying penalty of Rs.7,14,662/- u/s 271(1)(c) of the I.T.Act, 1961.
2. It is therefore prayed that above penalty levied by assessing officer and confirmed by Commissioner of Income-tax (Appeals) may please be deleted.
Shri Rajeshkumar R. Lohia Vs. ITO, Ward-9(3), Surat / A.Y. 2008-09 Page 2 of 10
3. Appellant craves leave to add, alter or delete any ground(s) either before or in the course of hearing of the appeal.”
Brief facts of the case are that during the assessment proceedings, the ld.Assessing Officer(AO) found that assessee was maintaining bank account at ICICI Bank, which was not reflected. It was further noticed that assessee had made total cash deposits of Rs.21,56,035/- and on being not satisfied with the reply of the assessee, the said cash amount deposit of Rs.21,56,035/- was treated as unexplained investment u/s.69 of the Income Tax Act and accordingly penalty proceedings were also initiated and penalty was levied.
Being aggrieved with the order of the ld.AO regarding imposition of penalty the assessee also preferred the appeal before the ld.CIT(A), and the ld.CIT(A) dismissed the same and upheld the order of the imposition of penalty.
Being aggrieved with the order of ld.CIT(A), the assessee preferred appeal before this Tribunal on the grounds mentioned hereinabove.
The solitary ground raised
by the assessee relates to challenging the order of the ld.CIT(A) in confirming the action of ld.AO in levying penalty of Rs.7,14,662/- u/s.271(1)(c) of the Income Tax Act. The ld.Authorised Representative(AR) reiterated the same arguments as was raised by him before the ld.CIT(A). It was submitted that the Shri Rajeshkumar R. Lohia Vs. ITO, Ward-9(3), Surat / A.Y. 2008
09. Page 3 of 10 assessee had deposited cash in ICICI Bank, out of sales provided of Art Silk Cloth. It was further submitted that assessee has withdrawn money from the said bank for payment of purchase of Art Silk Cloth. Although assessee had not maintained any books of accounts, therefore, he requested to treat the above account, as detailed business account and club the income from retail business u/s.44AF of the Income Tax Act. The ld.AR also drawn our attention to the month wise pattern of deposit and withdrawals in the ICICI Bank Account which has been reproduced by him in his written submissions and submitted that the entire table of withdrawal and cash deposits goes to prove that the assessee was into business activities. The assessee also relied upon the decision of the Co-ordinate Bench of ITAT Ahmedabad Bench in the case of S.K.Sharma vs. ITO in wherein under identical facts and circumstances of the case, the contention of the appellant that deposits represents turnover of the Art Silk Cloth has been accepted and the profit from the same was estimated @8% of the turnover. The ld.Authorised Representative(AR) also relied upon the decision of Co-ordinate bench in the case of Shri Ojas Ashokbhai Mehta vs. ITO in ITA No.296 & 297/Ahd/2013 for A.Y. 2008-09.
On the other hand, the ld.Departmental Representative(DR) relied upon the order passed by the Revenue Authorities.
We have heard counsels of both the parties and we have also perused the material placed on record, judgments cited by the parties Shri Rajeshkumar R. Lohia Vs. ITO, Ward-9(3), Surat / A.Y. 2008-09 Page 4 of 10 and the orders passed by the Revenue Authorities. From the records, we find noticed that assessee has placed on record a table which shows month wise pattern of deposits and withdrawals in ICICI Bank and the same is reproduce below:
A.Y. – 2008-09 Month Withdrawal Cash deposit
APRIL 300216 68124 MAY 256919 143245 JUNE 161407 150783 JULY 97046 121768 AUGUST 285031 127693 SEPTEMBER 103307 202709 OCTOBER 456293 267839 NOVEMBER 191529 88349 DECEMBER 239131 265307 JANUARY 248216 170724 FEBRUARY 531716 279700 MARCH 401371 271267 TOTAL 3272182 2157508
From the above table it reflects that assessee had been continuously making the withdrawals and also making cash deposits in the said bank which goes to show that assessee was into business activities. Apart from that we have also considered the reply filed by the assessee before the ld.AO wherein he had contended that the assessee had deposited cash, out of the sales proceeds of Art Silk Cloth and also withdrawn money from the said bank account for payment of purchase of Art Silk Cloth. Although it is an admitted fact that assessee was not maintaining any books of accounts, therefore he had requested to treat the above account as retail business account and club the income from retail business u/s.44AF of the Income Tax Act.
Shri Rajeshkumar R. Lohia Vs. ITO, Ward-9(3), Surat / A.Y. 2008-09 Page 5 of 10 We have also considered the decision cited by the assessee in the case of Shri Ojas Ashokbhai Mehta vs. ITO in which in para 4 it is held “We have considered the rival submissions and perused the material available on record. We find that in the case of Muralilal Ratanlal Agarwal vs. ACIT (supra), the facts as noted by the tribunal were that a search and seizure action was taken wherein one bank account was found. On being confronted, the assessee admitted that it is his benami bank account and also admitted that all the transactions reflected in this bank account belonged to him. The assessee declared Rs.5.50 lacs on this account but the A.O. noted that a sum of Rs.60,000/- was introduced by the assessee as seed money and he worked out the peak at Rs.14,45,702/- total Rs.15,05,702/- and after deducting Rs.5.50 lacs, he made addition of Rs.955,702/-. For this, he imposed a penalty of Rs.507,300/- u/s 271(1)(c) of I T Act since, the addition was upheld by learned CIT (A). Under these facts, penalty was deleted by the tribunal. In the present case also, an addition of Rs.22,72,788/- was made on the basis of peak of undisclosed bank account and a further addition of Rs.248,208/- was made in respect of alleged income after the peak date for the same bank account. In that case, the undisclosed bank account was found after search but in the present case, the same was found on the basis of AIR. The total credit in this bank account was of Rs.139.69 lacs but the addition is made on the basis of peak working and some estimated income after peak date. From the above analysis, it comes out that the facts in the present case are similar if not identical Shri Rajeshkumar R. Lohia Vs. ITO, Ward-9(3), Surat / A.Y. 2008-09 Page 6 of 10 with the facts in the case of Murarilal Ratanlal Agarwal vs. ACIT (Supra.). since penalty was deleted by the tribunal in that case and facts are similar in the present case, we find no reason to take a contrary view in the present case. Hence, by respectfully following this tribunal decision, we delete the penalty and in Murarilal Ratanlal Agarwal Vs. ACIT it was held as “We have heard the rival submissions and perused the material on record. We find that the Assessee had disclosed income of Rs.5,50,000/- based on the peak credit worked out from the bank account found during the course of search. The peak credit as worked out by the Assessee was not found correct by Assessing Officer and he worked out peak credit of Rs.15,05,702/- and on the enhanced peak credit u/s.271(1)(c) was levied by Assessing Officer. The addition made by the Assessing Officer is on estimation basis and is not based on any tangible material on record. It is a settled law that penalty cannot be levied merely on estimation of income. Further the explanation given by Assessee has not been found to be false. In view of aforesaid facts, we are of the view that no penalty can be levied in the present case. Thus the penalty is deleted and in CIT vs. Lallubhai Jogibhai Patel it was held as “Penalty under s. 271(1) (c) – Concealment – Unexplained investment in car-Addition to income sustained to the extent of Rs. 56,000 – Assessee admitted that he had purchased the car for Rs.31,000 only- Therefore, admittedly, there was concealment to the tune of Rs.31,000- As regards the amount which was in excess of Rs.31,000, Tribunal held that it was a mere estimate made by the ITO while fixing the cost of the Shri Rajeshkumar R. Lohia Vs. ITO, Ward-9(3), Surat / A.Y. 2008-09 Page 7 of 10 car-Said finding cannot be said to be perverse or unreasonable- Therefore, Tribunal was justified in confirming the penalty only in respect of addition of Rs.31,000 and cancelling the balance of penalty and in the case of CIT vs. Raj Bans Sing it was held as “Penalty under s. 271(1)(c)-Concealment-Assessment at higher figure-Declared income from truck enhanced in assessment-Findings recorded by Tribunal that it is a case of estimate of income in the absence of any books of account and that the assessee has not deliberately concealed the income-Penalty under s.271(1)(c) not leviable and in the case of CIT Vs. Valimkbhai H. Patel it was held as “Penalty under s. 271(1)(c) –Concealment-Claim for estimated loss of stock-Assessee carrying on business of manufacturing sale claimed loss of stock on account of cyclone and rain-AO revalued the stock and made substantial addition-On appeal CIT(A) directed the AO to value the stock at the rate declared by the assessee-Thus, one estimate was substituted by another estimate –CIT(a) held that merely because assessee could not substantiate his claim in terms of quantity, penalty under s. 271(1)(c) cannot be imposed –Tribunal also held that penalty was not leviable, though for different reasons-No interference warranted in view of findings of fact recorded by CIT(A) and Tribunal.
After having gone through the facts of the present case and also considering the judgments as mentioned above, we are of the view that the Co-ordinate Bench has already held that in case addition is made on the basis of peak working and on the same estimated income is Shri Rajeshkumar R. Lohia Vs. ITO, Ward-9(3), Surat / A.Y. 2008-09 Page 8 of 10 assessed, then, in that eventuality, no penalty is leviable and moreover once the assessee himself has submitted that the above account be treated as retail business account and club the income from retail business u/s.44AF of the Act. Then, obviously the additions at the most could be made on the basis of estimation. And, therefore, in that circumstance, no penalty is leviable. The decision of the Hon'ble Ahmedabad Bench in the case of Sarwan Kumar Sharma vs. ITO in and also in view of decision of Hon'ble Gujarat High Court in the case of CIT Vs. President Industries – 158 CTR 372 wherein it was held as “Hon'ble ITAT has also observed the revenue has its means to find out the nature of transactions transacted in bank account but revenue failed to make such exercise and simply presumed the fact to its convenience that the entire cash deposit represents income of assessee. In the instant case also revenue has failed to make any such enquiry and as stated earlier no corresponding unaccounted asset belonging to assessee has been found and therefore, following the ratio of ITAT Ahmedabad Bench in above case the explanation of assessee is required to be treated as bonafide and consequently no penalty u/s 271(1)(c) can be imposed in view of explanation to section 271(1)(c) of the Act and we have also considered that merely because additions have been made & the same is confirmed in first appeal, it does not at all mean that penalty for concealment of income is automatically required to be imposed. Explanation 1 to section 271(1)(c) only raises rebuttable presumption, which can be discharged by assessee on balance of Shri Rajeshkumar R. Lohia Vs. ITO, Ward-9(3), Surat / A.Y. 2008-09 Page 9 of 10 probability. The penalty can be justified only if assessee fails to offer an explanation or his explanation is found to be false. If these circumstances are not present, the penalty can be avoided if assessee is able to substantiate his explanation. Reliance can be placed on latest Mumbai ITAT decision in the case of M/s VIP Industries Ltd. – wherein it is categorically held that confirmation of addition cannot per se lead to confirmation of penalty. It is further held that necessary elements for attracting the explanation 1 to section 271(1)(c) are three fold i.e.. (i) the person fails to offer an explanation or (ii) he offers an explanation which is found by authorities to be false or (iii) the person offers and explanation which he is not able to substantiate and fails to prove that such explanation is bona fide and that all the facts relating to the same have been disclosed. If the case falls in any of such categories in that case only the amount in question can be said to represent concealed income on which penalty can be imposed.
3. Respectfully following the aforesaid decision of the Co-ordinate Bench and decision of Hon'ble Gujarat High Court decision CIT Vs. President Industries – 158 CTR 372 (supra), we are of the considered opinion that present penalty does not survive hence it is directed to be deleted, thus direct the AO to allow the same to the assessee and grounds of appeal is allowed in favour of the assessee.
11. In the result, ground no.1 of the assessee is allowed.
Shri Rajeshkumar R. Lohia Vs. ITO, Ward-9(3), Surat / A.Y. 2008-09 Page 10 of 10
Ground No.2 & 3 are general in nature which needs no adjudication, therefore, dismissed as not pressed.
In the result, appeal of the assessee is partly allowed.
Order pronounced in the open court on 07-02-2020. 10.