Income Tax Appellate Tribunal - Panji
Darshansingh Amritsingh Bindra,, ... vs Income-Tax Officer,, on 27 September, 2017
आयकर अपीऱीय अधिकरण पण
ु े न्यायपीठ "बी" पण
ु े में
IN THE INCOME TAX APPELLATE TRIBUNAL
PUNE BENCH "B", PUNE
सुश्री सुषमा चावऱा, न्याययक सदस्य एवं श्री अयिऱ चतुवेदी, ऱेखा सदस्य के समक्ष
BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM
आयकर अपीऱ सं. / ITA No.1657/PUN/2015
यििाारण वषा / Assessment Year : 2004-05
Jagdishsingh Amritsingh Bindra,
"Amritvilla", Nashik-Pune Road,
Near Bytco College, Nashik Road,
Nashik - 422101 .... अऩीऱाथी/Appellant
PAN: AEJPB4641R
Vs.
The Income Tax Officer (Central),
Nashik .... प्रत्यथी / Respondent
आयकर अपीऱ सं. / ITA No.1660/PUN/2015
यििाारण वषा / Assessment Year : 2004-05
Darshansingh Amritsingh Bindra,
"Amritvilla", Nashik-Pune Road,
Near Bytco College, Nashik Road,
Nashik - 422101 .... अऩीऱाथी/Appellant
PAN: AGKPB9502A
Vs.
The Income Tax Officer (Central),
Nashik .... प्रत्यथी / Respondent
आयकर अपीऱ सं. / ITA No.1659/PUN/2015
यििाारण वषा / Assessment Year : 2001-02
Darshansingh Amritsingh Bindra,
"Amritvilla", Nashik-Pune Road,
Near Bytco College, Nashik Road,
Nashik - 422101 .... अऩीऱाथी/Appellant
PAN: AGKPB9502A
Vs.
The Income Tax Officer (Central),
Nashik .... प्रत्यथी / Respondent
2
ITA Nos.1657 to 1660/PUN/2015
Jagdishsingh A. Bindra & Ors.
आयकर अपीऱ सं. / ITA No.1658/PUN/2015
यििाारण वषा / Assessment Year : 2007-08
Amarjitkaur Montysingh Bindra,
"Amritvilla", Nashik-Pune Road,
Near Bytco College, Nashik Road,
Nashik - 422101 .... अऩीऱाथी/Appellant
PAN: AKUPB5174G
Vs.
The Income Tax Officer (Central)-1,
Nashik .... प्रत्यथी / Respondent
Assessee by : Shri M.K. Kulkarni
Revenue by : Shri Ajay Modi
सन
ु वाई की तारीख / घोषणा की तारीख /
Date of Hearing : 14.09.2017 Date of Pronouncement: 27.09.2017
आदे श / ORDER
PER SUSHMA CHOWLA, JM:
This bunch of appeals relating to connected assessee are filed against separate orders of CIT(A)-13, Pune relating to assessment years 2004-05, 2004- 05, 2001-02 and 2007-08 against respective orders passed / penalty levied under sections 153A r.w.s. 143(3) and 271(1)(c) of the Income-tax Act, 1961 (in short „the Act‟).
2. This bunch of four appeals relating to different assessees were heard together and are being disposed of by this consolidated order for the sake of convenience. First, we shall take the appeals in ITA No.1657/PUN/2015 and ITA No.1660/PUN/2015 relating to two different assessees against orders passed under section 153A r.w.s. 143(3) of the Act. The issue raised in both the appeals 3 ITA Nos.1657 to 1660/PUN/2015 Jagdishsingh A. Bindra & Ors.
is identical and for the sake of adjudication, we make reference to the facts and issue in ITA No.1657/PUN/2015.
3. The assessee in ITA No.1657/PUN/2015 has raised the following ground of appeal:-
1) On the facts and circumstances of the case and in law the Ld. CIT(A) was not justified in maintaining the addition of Rs.9,25,000/- being 50% of Rs.18.50 lakhs being unexplained investment in Viraj Corner holding that such addition was confirmed by Hon'ble Tribunal. The perusal of the Hon'ble Tribunal order in Group matters would reveal that the Tribunal instead of passing final order directed the A.O. to re-compute the income on the basis of directions contained in the order of Tribunal dt.29-08-
2013. Thus in the absence of the final order of the Tribunal the addition upheld by the CIT(A) is not justified. It be quashed.
4. Briefly, in the facts of the case, the assessee was an individual carrying on the business of transporter and commission agent. Search under section 132 of the Act was conducted in the Bindra Group of cases at Nashik on 15.03.2007. The residential premises of assessees were also searched. The business premises of assessees were covered by Survey under section 133A of the Act. During the course of search at the residential premises of assessee and other family members, total cash of Rs.1,29,95,400/- was found; out of which cash of Rs.1 crore was seized. In response to notice issued under section 153A of the Act, the assessee furnished the return of income declaring total income of Rs.12,38,385/- and Rs.12,54,250/- relating to assessment years 2004-05 and 2005-06, respectively. The Assessing Officer made various additions in the hands of assessee on account of unexplained investments.
5. Before the CIT(A), during the course of appellate proceedings, various issues were raised including enhancement proposed by the CIT(A). The CIT(A) however, in line with the ratio laid down by the Pune Bench of Tribunal in assessee‟s own case in assessment year 2003-04 in ITA No.887/PN/2012, vide order dated 29.11.2013 held that the CIT(A) had no power to enhance the 4 ITA Nos.1657 to 1660/PUN/2015 Jagdishsingh A. Bindra & Ors.
assessment by discovering new source of income. Following the same, the CIT(A) did not enhance the income earned from money lending activity carried on by the assessee. The assessee was not maintaining books of account and had computed income under section 44AE of the Act. The plea of assessee was that where the books of account were not being maintained, then the depreciation is to be allowed from the profit, in view of provisions of section 44AE(4) of the Act. He further contended that accumulated depreciation was nothing but available cash for re-investment in assets. The assessee thus, contended that Cash Flow Statement including the depreciation for availability of cash was to be considered in accordance with the principles of accounting and accounting standards. The Assessing Officer did not accept the said plea of assessee and rejected the availability of cash for investment purpose on assessee‟s claim of showing depreciation in Cash Flow Statement. The Tribunal (supra) while deciding the appeal for assessment year 2003-04 had also decided the said issue and held that credit to the extent of 40% of the claim made by the assessee be allowed to him in the Cash Flow Statement for each year and Cash Flow Statement be worked out in accordance with these directions, after providing reasonable opportunity to re-work the Cash Flow Statement. The CIT(A) following the above said directions of the Tribunal, directed the Assessing Officer to grant credit to the extent of 40% of claim made by the assessee and re-work the Cash Flow Statement after providing reasonable opportunity to the assessee vide para 3.1.4 of appellate order. While explaining unexplained investment in Viraj Constructions, which was as per the notings in the diary No.A-48 which was seized from the assessee‟s residential premises, the assessee in his statement recorded under oath stated that the payment of Rs.25 lakhs was made to Shri Viraj R. Shah towards purchase of shop No.9 and 10 on the ground floor at Viraj Corner, Nashik. However, the said transaction did not materialize and the money was returned by Shri Viraj R. Shah to the assessee. 5
ITA Nos.1657 to 1660/PUN/2015 Jagdishsingh A. Bindra & Ors.
The Assessing Officer noted that the assessee had made the payment of Rs.18,50,000/- to Shri Viraj Shah during the financial year 2003-04. The Assessing Officer also analyzed the entries and observed that the payment of Rs.18,50,000/- was not reflected in the Cash Flow Statement and accordingly, the same was treated as unexplained investment. The investment was jointly made by the assessee and Shri Darshansingh Amritsingh Bindra and hence 50% of total investments i.e. Rs.9,25,000/- was added in the hands of assessee. The CIT(A) vide para 3.4.3 observed that in the assessment order, the Assessing Officer has recorded the fact that the investment was not part of Cash Flow Statement prepared by the assessee. The CIT(A) further observed that the assessee has not challenged this finding of fact and therefore, there is no question of considering the same in the revised Cash Flow Statement. The addition was confirmed in the hands of assessee, against which the assessee is in appeal.
6. The learned Authorized Representative for the assessee pointed out that both the authorities below have failed to consider the Cash Flow in entirety, where this amount was duly shown in the Cash Flow Statement, which was filed before the Assessing Officer. He further pointed out that in any case, Cash Flow Statement needs to be recasted as per directions of the Tribunal and the available cash is to be adjusted against the outgoings and hence, there is no merit in the orders of authorities below.
7. The learned Departmental Representative for the Revenue on the other hand, placed reliance on the orders of authorities below.
8. We have heard the rival contentions and perused the record. The limited issue which is raised in the present appeal is in respect of investment of 6 ITA Nos.1657 to 1660/PUN/2015 Jagdishsingh A. Bindra & Ors.
Rs.9,25,000/- which was made by the assessee during instant assessment year. The said investment was reflected in the seized documents which were found from the residential premises of the assessee. The assessee admitted that the said investment was made but the deal did not materialize and in later years, the amount has been refunded. The assessee was not maintaining regular books of account and was declaring its income from transportation under section 44AE of the Act. However, the assessee claimed that it was entitled to depreciation and the said depreciation is available in the form of cash in the hands of assessee. The said issue travelled before the Tribunal in bunch of appeals including the appeal of assessee for assessment year 2003-04 and the Tribunal vide order dated 29.08.2013 decided the issue vide para 15 holding that credit to the extent of 40% of the claim made by the assessee be allowed to the assessee in Cash Flow Statement for each year and Cash Flow Statement be worked out in accordance with these directions after providing reasonable opportunity to re- work the Cash Flow Statement. Consequent to the re-working of Cash Flow Statement in the hands of assessee i.e. the availability of cash, then the next step is to look at the outgoings of assessee which are recorded in the seized documents. The assessee claims that the said investment is to be set off against the available cash as per Cash Flow Statement. The stand of assessee was not accepted on the ground that no such outgoing was shown in the original Cash Flow Statement. We find no merit in the stand of authorities below in this regard first, in view of the fact that the assessee had claimed comprehensive outgoing in the respective years. In any case, when the Cash Flow Statement is being worked out as per the directions of the Tribunal to see the availability of cash in the hands of assessee in each of the year, then the available cash has to be set off against the outgoings i.e. in this case, the investment with Viraj Properties at Rs.9,25,000/-. The Assessing Officer is thus, directed to verify the position of available cash and in case sufficient amount is available to adjust the 7 ITA Nos.1657 to 1660/PUN/2015 Jagdishsingh A. Bindra & Ors.
outgoings, then no addition is warranted in the hands of assessee, otherwise, the Assessing Officer shall work out the addition, if any, in the hands of assessee. Thus, the ground of appeal raised by the assessee is allowed as indicated above.
9. The facts and issues in ITA No.1660/PUN/2015 are similar to the facts and issues in ITA No.1657/PUN/2015 and our decision in ITA No.1657/PUN/2015 shall apply mutatis mutandis to ITA No.1660/PUN/2015.
10. The assessee in ITA No.1659/PUN/2015, relating to assessment year 2001-02 has raised the following ground of appeal:-
1) On the facts and circumstances of the case and in law the A.O. was not justified in levying the penalty u/s 271(1)(c) of the Act on the basis of addition sustained of Rs.1,47,442/- out of Rs.23,87,000/- by Hon'ble Tribunal in ITA 358/PN/2004 dt.21-09-2007. The Hon'ble Tribunal only sustained the addition but not as concealed or unexplained income.
11. The issue raised in the present appeal is against levy of penalty under section 271(1)(c) of the Act. The perusal of assessment order reflects that the Assessing Officer has recorded satisfaction for initiating penalty proceedings under section 271(1)(c) of the Act on the ground of furnishing of inaccurate particulars of income. However, while passing the order levying penalty under section 271(1)(c) of the Act, the Assessing Officer held the assessee to have furnished inaccurate particulars of income and thereby concealed the income to the extent of addition made in the hands of assessee.
12. The CIT(A) upheld the levy of penalty on merits.
13. The assessee is in appeal against the order of CIT(A) and has raised the preliminary jurisdictional issue, where there is no specific charge of concealment of income or furnishing of inaccurate particulars of income, levy of penalty under section 271(1)(c) of the Act is not correct, in view of series of decisions including 8 ITA Nos.1657 to 1660/PUN/2015 Jagdishsingh A. Bindra & Ors.
the decision of the Hon‟ble Bombay High Court in CIT Vs. Shri Samson Perinchery in Income Tax Appeal No.1154 of 2014 with other Income Tax Appeals Nos.953 of 2014, 1097 of 2014 and 1226 of 2014, judgment dated 05.01.2017.
14. The learned Departmental Representative for the Revenue on the other hand, placed reliance on the orders of authorities below.
15. We have heard the rival contentions and perused the record. For initiating levy of penalty under section 271(1)(c) of the Act, the requirement of the Act is that the assessee who first be given show cause notice as to which limb of section 271(1)(c) of the Act is not satisfied by the assessee. Thereafter, penalty is to be levied on the said limb itself. The Assessing Officer has to come to a finding as to in respect of one addition made in the hands of assessee, whether it is a case of concealment of income or furnishing of inaccurate particulars of income. We however, find that the Assessing Officer while initiating penalty proceedings had initiated same for furnishing inaccurate particulars of income but when the penalty order was passed levying penalty under section 271(1)(c) of the Act, the Assessing Officer has failed to come to a finding as to which limb has not been satisfied by the assessee. The Assessing Officer in the present case has levied penalty both on account of concealment of income and furnishing of inaccurate particulars of income in respect of the addition made in the hands of assessee. We find no merit in the stand of Assessing Officer in this regard.
16. We find support from the ratio laid down by the Hon‟ble Bombay High Court in CIT Vs. Shri Samson Perinchery (supra) and it was held that where initiation of penalty is on one limb and the levy of penalty is on other limb, then in 9 ITA Nos.1657 to 1660/PUN/2015 Jagdishsingh A. Bindra & Ors.
the absence of proper show cause notice to the assessee, there is no merit in levy of penalty. Applying the said ratio to the facts of the present case, we delete penalty levied under section 271(1)(c) of the Act.
17. The facts and issues in ITA No.1658/PUN/2015 are similar to the facts and issues in ITA No.1659/PUN/2015 and our decision in ITA No.1659/PUN/2015 shall apply mutatis mutandis to ITA No.1658/PUN/2015.
18. In the result, all the appeals of assessee are allowed.
Order pronounced on this 27th day of September, 2017.
Sd/- Sd/-
(ANIL CHATURVEDI) (SUSHMA CHOWLA)
ऱेखा सदस्य / ACCOUNTANT MEMBER न्याययक सदस्य / JUDICIAL MEMBER
ऩुणे / Pune; ददनाांक Dated : 27th September, 2017.
GCVSR
आदे श की प्रयतलऱपप अग्रेपषत/Copy of the Order is forwarded to :
1. अऩीऱाथी / The Appellant;
2. प्रत्यथी / The Respondent;
3. आयकर आयुक्त(अऩीऱ) / The CIT(A)-13, Pune;
4. The Pr. CIT(Central), Pune;
5. ु े "फी" / DR ववबागीय प्रतततनधध, आयकर अऩीऱीय अधधकरण, ऩण 'B', ITAT, Pune;
6. गार्ड पाईऱ / Guard file.
ु ार/ BY ORDER, आदे शािस सत्यावऩत प्रतत //True Copy// वररष्ठ तनजी सधिव / Sr. Private Secretary आयकर अऩीऱीय अधधकरण ,ऩुणे / ITAT, Pune