Income Tax Appellate Tribunal - Ahmedabad
Shri Vikrambhai Ravjibhai Patel,, ... vs The Acit, Anand Circle,, Anand on 28 September, 2018
IN THE INCOME TAX APPELLATE TRIBUNAL
AHMEDABAD "SMC " BENCH
Before: Shri Amarjit Singh, Accountant Member
And Ms. Madhumita Roy, Judicial Member
ITA No. 2679/Ahd/2015
Assessment Year 2008-09
Shri Vikrambhai Ravjibhai The ACIT,
Patel, Anand Circle,
C/o M. V. Patel & Co., At. Vs Anand
Kun jrao, (Respondent)
Anand-388335
PAN: ADO PP8739L
(Appellant)
Reve nue by: Shri Uma Shanka r Prasad, Sr. D. R.
Assessee by: Smt Arti N. Shah, A.R.
Date of hearing : 04-09-2018
Date of pronounce ment : 28-09-2018
आदेश /ORDER
PER : AMARJIT SINGH, ACCOUNTANT MEMBER:-
This assessee's appeal for A.Y. 2008-09, arises from order of the CIT(A)- 4, Vadodara dated 01-06-2015, in proceedings under section 271(1)(c) of the Income Tax Act, 1961; in short "the Act".
2. The solitary ground of appeal raised by the assessee is pertained to levy of penalty u/s. 271(1)(c) of the act. In this case, the assessee has filed return of income on 26th Sep, 2008 declaring income of Rs. 928946/-. The case was subject to scrutiny and assessment u/s. 143(3) of the act was finalized on 26th I.T.A No. 2679/Ahd/2015 A.Y. 2008-09 Page No 2 Shri Vikrambhai Ravjibhai Patel vs. ACIT Nov, 2010 and total income was determined at Rs. 13,55,730/- after making addition of Rs. 740100/- on account of unexplained deposit, Rs. 166800/- on account of offer of income to tax on account of unexplained capital etc., and Rs. 369364/- on account of agricultural income treated as income from unexplained sources. Thereafter, ld. CIT(A) has confirmed the addition of Rs. 405100/- out of addition on account of unexplained deposit of Rs. 740100/-, Rs. 31,800/- out of addition of Rs. 166800/- and Rs. 369364/- being agricultural income treated as income from undisclosed sources. Thereafter, in the penalty proceedings u/s. 271(1)(c) of the act, the assessing officer has held that the assesse has concealed the particulars of income within the meaning of section 271(1)(c) of the act and levied penalty of Rs. 272316/-.
3. The assessee preferred appeal against the penalty levied by the assessing officer. The ld. CIT(A) has partly sustained the penalty levied by the assessing officer. The relevant part of the decision of ld. CIT(A) is reproduced as under:-
"5.4 In this case, penalty has been levied on three issue viz, (i) unexplained deposits of Rs.7,40,100/-, (ii) unexplained deposits, capital etc. of Rs. 1,66,800/- and (iii) Income of Rs.3,69,364/- claimed as agricultural income, but treated as income from undisclosed sources.
5.5 As far as penalty on unexplained deposits of Rs.7,40,100/- is concerned, it was observed by the Assessing Officer during the assessment proceedings that he had taken loans/deposits from (i) Rs. 2,00,000/- from Shri Rajendrabhai Patel, (ii) Rs. 1,35,000/- from Shri Manishbhai Patel and (iii) Rs.4,00,000/- from Smt. Krtiben A. Pate!. The Assessing Officer required the assessee to furnish confirmations of these persons and establish their identity and creditworthiness and prove the genuineness of the transactions. It was found that the assessee had taken a loan of Rs.2,00,000/- from one Shri Rajendra Purushottambhai Patel on 18.12.2007. However, the assessee could only furnish an unsigned confirmation of the creditor and a copy of the relevant bank account. Evidence of identity and creditworthiness of the creditor was never filed. It was also noticed by the assessing officer that there was a cash deposit of Rs. 2,00,000/- in the accounts of Shri Rajendra Purushottambhai Patel on 18.12.2007 i.e. on the date, the transaction from Shri Rajendra Purushottambhai Patel to the assessee was effected. It was also observed that there was no other major transaction through that account. Since the assessee had failed to establish the identity and creditworthiness of the creditors and had also failed to prove the genuineness of the transactions and had failed to produce a signed confirmation of the creditor, the amount was treated as unexplained.and was added.to the total income of the sssassee, . The addition was upheld in appeal by CIT(A). Addition of Rs. 1,35,000/- on account of loan from Shri Manishbhai Pate! was treated as explained by the CIT(A) and therefore, no penalty was levied on this addition. It was further observed by the Assessing Officer that the assessee had taken a deposit of Rs.I.T.A No. 2679/Ahd/2015 A.Y. 2008-09 Page No 3
Shri Vikrambhai Ravjibhai Patel vs. ACIT 4,00,000/- from Smt. Kirtiben A. Patel also during the relevant year. The assessee filed a confirmation of the depositor with a copy of the bank statement and 7712 utara to prove the genuineness of the alleged deposits. However, it was also noticed that there was a credit of Rs. 2,00,000/- in her account on 28.01.2008 and further transfer of Rs. 2,24,547/- on 24.01.2008 i.e. a few days prior to the alleged deposit. It was further observed that in 7/12 utara, the name of the creditor is missing and instead, the name of the assessee was mentioned as agriculturist. On being asked to explain the same, the assessee himself offered a sum of Rs. 2,00,000/- to tax vide his letter dated 26.10.2010. For want of proof of identity and creditworthiness of the creditor, the same was treated as unexplained and was added to the total income of the assessee. The C1T(A) had confirmed the addition of Rs. 2,00,000/- and had directed the Assessing Officer to verify whether the alleged creditor had actually received a sum of Rs. 2,24,547/-, which was allegedly utilized for the advance and conditionally upheld the addition. The assessee has not been able .to. establish during the appellate proceedings that the source of Rs. 2,24,547/- was explained.
5.6 During the course of assessment proceedings,, the assessee, vide his letter dated 26.10.2010 submitted a revised computation of income, wherein unsecured loan of Rs. 5,35,000/- (being Rs. 2,00,000/- in the name of Kirtiben A, Pate!, Rs. 2,00,000/- in the name of R.P.Patel and Rs. 1,35,000/- in the name of M.B. Amatiyar), interest of Rs. 6,808/- on Income-tax refund and Capital Introduction of Rs. 25,000/~ was offered to tax. Interest on I.T. refund and Capital of Rs, 25,000/- were offered to tax after enquiry on these issues by the Assessing Officer. Since deposits in the name of Mrs. Kirtiben A. Patel and R.P.Patel were already treated as unexplained and added to assessee's total income, the balance of Rs. 1,66,800/- was added to assessee's total income. CIT(A) deleted addition of Rs. 1,35,000/- on account of deposit from Shri M.B.Amaliyar and confirmed the balance addition of Rs. 31,8QO/-on account of unexplained Capital Introduction of Rs. 25,000/- and interest of Rs. 6,800/- on S.T. Refund. 5.7 It is clear from the records that the assessee has failed to establish the identity and creditworthiness of the alleged creditors viz. Mrs. Kirtiben A. Patel and R.P.Patel, Examination of the bank accounts of the creditors reveals that there are deposits in their bank accounts, immediately before advancing the sums to the assessee. In view of this, the assessee has failed to establish even the genuineness of the transactions. Even a signed confirmation was not furnished in the case of Mrs. Kirtiben A. Patel. It is obvious that the assessee has failed to discharge the onus cast on him to explain the source of the credits in his bank accounts. Therefore, his explanation in this regard was not found to be satisfactory. Furthermore, the assessee has failed to furnish any explanation as to why the interest on Income-tax Refund also unexplained capital of Rs. 25,000/- which were offered to lax after queries by the Assessing Officer in this regard, were not offered to tax in the Return of Income. Resultantly, it is clear that Explanation 1 to section 271(1)(c) is clearly attracted in this case.
5.8 In CIT vs P.K.Narayanan, 238 SIR 901 (Ker), it was held by Hon'ble Kerala High Court that under Explanation 1 to section 271(1)(c) of the Income-tax Act, presumption will arise in a situation where any addition made by the Assessing Officer is sustained by the Appellate Authority, then the addition will represent concealed income of the assessee and the onus will be on the assessee to rebut the presumption. In view of\ this, any contention that the burden is on the Department to prove the concealment will become untenable.
5.9 In CIT vs K.B.Madhusudan 246 ITR 218 (Ker), it has been held by Hon' ble Supreme Court that if an amount is added or disallowed in computing the total income of the assessee, it is deemed to represent the income in respect of which inaccurate particulars have been filed.
5.10 Appellant contends that the penalty proceedings are quasi-criminal in nature and inference of mens rea is necessary. This view is aiso not tenable in view of the decision I.T.A No. 2679/Ahd/2015 A.Y. 2008-09 Page No 4 Shri Vikrambhai Ravjibhai Patel vs. ACIT of Hon'ble Supreme Court in CIT vs Kalyandas Rastogi, 193 ITR 713 (SC), where Hon'ble Supreme Court held that a penalty imposed for a tax delinquency is a civil obligation remedial and coercive in nature and is far different from penalty for a crime, in this kind of penalty, element of mens rea is not required. In Union of. India vs Dharmendra' Textile Processors [2008] 168 Taxman 65 (SC), Hon'ble Supreme Court reiterated this position and held that penalty u/s 271 (1)(c) is a civil liability and for attracting such civil liability, willful concealment is not an essential ingredient as is case in the matter of prosecution u/s 276C.
5.11 It is noticed that the appellant-assessee has only offered an explanation regarding the source of unexplained credits in his books of accounts but has failed to substantiate it with supporting evidence. In such a situation, Explanation 1 is clearly attracted in this case. In view of this, penalty must obligatorily be imposed in this case in view of CIT -vs Lal Chand Tirath Ram, 225 ITR 675 (Punj), where it was held by Hon'ble High Court that mere offering of an explanation would not absolve the assessee from the liability of penalty. It is necessary for the assessee to (i) offer an explanation and (ii) substantiate it. Furthermore, in CIT vs A.Srinivasa Pai, [2000] 242 ITR 29 (Ker) and CIT vs Geo Sea Foods, 244 STR 44 {Ker}, it has been held that the explanation of the assessee must be an acceptable explanation and if he fails to discharge the burden, the presumption of explanation 1 will be available to the assessing Officer.
5.12 In the case of Radhey Shyam Tibrewal vs CIT, [1984] 16 Taxman 27 (SC), Hon'ble Supreme Court has held that where an assessee, whose books disclosed cash credits in the names of certain creditors failed to produce them before the Assessing Officer, impugned cash credits could be treated as assessee's income from undisclosed sources. 5.13 In view of the above discussion, it is clear that Explanation 1 to section 271(1)(c) is attracted in this case and the appellant is liable for penalty u/s 271 (1 )(c) specially since he has failed to substantiate his claim with regard to unexplained cash credits in his books of accounts. Consequently, the order of the Assessing Officer with respect to the penalty on above accounts is upheld.
5.14 As far as penalty on claimed agricultural income of Rs. 3,69,364/- is concerned, it is not disputed that the assessee had 'not disclosed any agricultural income in the return of income filed for the relevant year. The claim for agricultural income of Rs. 3,69,364/- was, for the first time, made vide his reply dated 8.11.2010. during the assessment proceedings. No evidence in the form of 7/12 and 8/A utara, sales bills of agricultural produce, bills and vouchers for various expenses, etc. was furnished in support of the agricultural income. Since the assessee failed to establish that the income was derived from agricultural activities, the same was added to his total income, by the Assessing Officer, in appeal, CIT(A) also held that the assessee had failed to establish his claim of agricultural income, hence, the addition was upheld. Non-disclosure of this source of income in the return creates doubts about its existence in the absence of any third party evidence regarding agricultural income. To that extent, the assessee has failed to substantiate his claim regarding the source of the income of Rs. 3,69,364/-. Therefore, his explanation in this regard was not found to be satisfactory. Resultantly, levy of penalty u/s 271(1)(c) of the Act on this issue is upheld. The assessee fails on these grounds of appeal."
4. We have heard the rival contentions and perused the material on record. The assessing officer has levied penalty u/s. 271(1)(c) of the act on the following additions made u/s. 143(3) which were also sustained by the ld. CIT(A).
(i) Agricultural income treated as undisclosed source Rs. 3,69,364/-.
(ii) Unexplained deposit from Kirtiben A Patel 4,00000/-
I.T.A No. 2679/Ahd/2015 A.Y. 2008-09 Page No 5
Shri Vikrambhai Ravjibhai Patel vs. ACIT
(iii) Unsecured loan from R. Patel Rs. 2,00000/-
In respect of agricultural income of Rs 3,69,364/-, the assessee submitted in the statement dated 18/11/2010 that he was having agricultural income of Rs.
3,69,364/- but the same was not declared in the return of income. It was stated that he has not filed any evidence like 7/12 and 8/12 sale bill of agricultural product, vouchers bills for expenses etc. During the course of appellate proceedings before us, the asssessee has referred to page number 19,,20,23 to 27 of the paper book relating to documents pertaining to earning of agriculture income like detail of expenditure agricultural records etc submitted before the assessing officer during the course of assessment proceedings. After considering the above facts and material on records , we find that assessee has failed to furnish the part of the detail like bills/vouchers etc in the quantum proceedings in respect of agriculture income for which it is appropriate to disallow the claim of agricultural income but levying of penalty in respect of agricultural income is not appropriate as the assessee had disclosed the material facts but failed to substantiate its claim with appropriate evidences. In respect of unexplained loan of Rs. 4,00000/- from Kirtiben Amritbhai Patel, the assesse filed confirmation of the deposit with copy of IDBI and another bank a/c etc. Further the assessee has offered a part of the deposit of Rs. 2,00000/- from the depositor as his undisclosed income vide letter dated 26/10/2010. In respect of the above loan, we observe that assessee has admitted Rs. 2,00000/- as his undisclosed income pertaining to the loan/deposit obtained from Kirtiben Amitbhai Patel. Therefore, to the extent of Rs. 200000/- it has been proved that assesse has concealed his income and furnished inaccurate particulars of income. However, in respect of remaining deposit of Rs. 2,00000/- from Kiritben Amritbai Patel and Rs. 2,00000/- from Rajendra P Patel, we have noticed that assessing officer has not made any investigation by issuing summons to the depositors to substantiate that assessee has furnished inaccurate particulars of income or concealed the particulars of income. In the light of the above, we sustain the penalty levied by the assessing officer in respect of Rs. 2,00000/- as I.T.A No. 2679/Ahd/2015 A.Y. 2008-09 Page No 6 Shri Vikrambhai Ravjibhai Patel vs. ACIT undisclosed cash credit admitted by the assessee as his undisclosed income as explained supra in this order. Therefore, the penalty levied in respect of agricultural income of Rs. 3,69,364/- and unsecured loan to the extent of Rs.4,00000/ is deleted for the reason stated as supra this order. Therefore, the appeal of the assessee is partly allowed.
5. In the result, the appeal of the assessee is partly allowed.
Order pronounced in the open court on 28 -09-2018
Sd/- Sd/-
(MADHUMITA ROY) (AMARJIT SINGH)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Ahmedabad : Dated 28/09/2018
आदेश क त ल प अ े षत / Copy of Order Forwarded to:-
1. Assessee
2. Revenue
3. Concerned CIT
4. CIT (A)
5. DR, ITAT, Ahmedabad
6. Guard file.
By order/आदेश से,
उप/सहायक पंजीकार
आयकर अपील य अ धकरण,
अहमदाबाद