Income Tax Appellate Tribunal - Chandigarh
Nand Lal Popli, Shimla vs Dcit, Chandigarh on 30 September, 2019
आयकर अपील य अ धकरण,च डीगढ़ यायपीठ, "बी" च डीगढ़
I N T H E I NC O M E T A X A P PE L L A T E T RI B U N AL
D I VI S I O N B E NC H , ' B ' , C H AND I G AR H
ी एन. के. सैनी, उपा य एवं ी संजय गग , या यक सद य
BEFORE SHRI N.K. SAINI, VICE PRESIDENT &
SHRI SANJAY GARG, JUDICIAL MEMBER
आयकर अपील सं./ ITA No. 4 9 / C H D / 2 0 1 9
नधा रण वष / Assessment Year : 2010-11
Shri Nand Lal Popli, बनाम The DCIT, Central Circle-II,
Hemant Lodge, Murray, Chandigarh
Field Estate,
Nav Bahar, Shimla
थायी लेखा सं./PAN NO: ABLPP3524A
अपीलाथ&/Appellant ()यथ&/Respondent
नधा *रती क, ओर से/Assessee by : Sh. Vishal Mohan, Advocate
राज व क, ओर से/ Revenue by : Sh. Ritish Parmar, Sr DR
सन
ु वाई क, तार0ख/Date of Hearing : 23.09.2019
उदघोषणा क, तार0ख/Date of Pronouncement : 30.09. 2019
आदे श/Order
Per Sanjay Garg, Judicial Member:
The present appeal has been preferred by the assessee against the order dated 25.10.2018 of the Commissioner of Income Tax (Appeals)-3, Gurgaon [hereinafter referred to as 'CIT(A)'] agitating the levy and confirmation of the penalty u/s 271 (1)(c) of the Income Tax Act, 1961 (in short 'the Act').
2ITA No.49/Chd/2019-
Shri Nand Lal Popli, Shimla
2. The brief facts of the case are that during the assessment proceedings, Assessing Officer noticed that during the year under consideration a sum of Rs. 2 lacs was credited into the account of the assessee. On being asked to explain in this respect, the assessee explained that the said amount was received by the assessee as return of loan amount from the nephew of his wife Shri Vijay Wadhwa. The assessee also filed the confirmation from the said Shri Vijay Wadhwa in this respect and also furnished his PAN number. However, the Assessing Officer insisted for filing of the bank account statement and Income-tax return of Shri Vijay Wadhwa but the assessee could not produce the aforesaid documents. The Assessing Officer, therefore, held that the assessee could not prove the genuineness of the transactions and accordingly added the said amount of Rs. 2 lacs into the income of the assessee as unexplained credits. He also initiated penalty proceedings and imposed the impugned penalty of Rs. 61,800/-. The assessee in the quantum proceedings remained unsuccessful as the addition was confirmed upto the level of the Income Tax Appellate Tribunal. The assessee also challenged the imposition of the aforesaid penalty amount before the Ld. CIT(A) but remained unsuccessful. Hence, the present appeal has been filed before this Tribunal. 3 ITA No.49/Chd/2019-
Shri Nand Lal Popli, Shimla
3. We have considered the rival contentions and have also gone through the record. The case of the assessee is that the said amount of Rs. 2 lacs was received by the assessee from Shri Vijay Wadhwa as return of loan. To prove the identity of the creditor and genuineness of the transactions, the assessee filed confirmation from Shri Vijay Wadha, wherein, his PAN number was also mentioned. However, the assessee could not convince Shri Vijay Wadhwa to supply his bank account statement and Income-tax return, therefore, the addition of the aforesaid amount of Rs. 2 lacs was made by the Assessing Officer into the income of the assessee which was further confirmed by the ITAT also. However, in this appeal against the levy of penalty u/s 271 (1)(c) of the Act, the counsel for the assessee has submitted that though the assessee could not prove to the satisfaction of the Income-tax authorities about the aforesaid receipt of Rs. 2 lacs from Shri Vijay Wadhwa as return of loan amount, however, the case of the assessee has also not been disapproved by the Assessing Officer. The small amount of Rs. 2 lacs was credited into the account of the assessee by way of two transactions of deposit of Rs. 1 lacs each. The assessee had filed confirmation from Shri Vijay Wadhwa as well as his PAN number. However, the further documents / details sought by the Assessing Officer were not in the possession of the assessee. The assessee could only request Shri Vijay Wadhwa to supply the required documents i.e. his bank account 4 ITA No.49/Chd/2019- Shri Nand Lal Popli, Shimla statement and Income-tax return. However, the Assessing Officer had got powers under the Income Tax Act to summon Shri Vijay Wadhwa and procure the necessary details. The Assessing Officer for the reasons best known to him did not exercise his powers to do so but added the said amount of Rs. 2 lacs as unexplained income of the assessee. Under the circumstances, though the amount of Rs. 2 lacs was added into the income of the assessee on presumption basis as the assessee could not furnish the requisite documents to the satisfaction of the Assessing Officer, however, the case of the assessee was not disapproved by the Assessing Officer by summoning Shri Vijay Wadhwa or otherwise producing any evidence from which it could be inferred that the assessee's case was false. It is also not a case where the assessee had not produced any evidence at all to prove the genuineness of the transactions, rather, the assessee filed confirmation from Shri Vijay Wadhwa and also his PAN number.
4. In our view, the circumstances do not warrant levy of penalty u/s 271 (1)(c) of the Act in this case. The Hon'ble Bombay High Court in the case of 'CIT vs Upendra V Mithani', ITA (L) No. 1860 of 2009 order dated 5.08.2009 held that if the assessee gives an explanation which is unproved but not disproved, i.e. it is not accepted but circumstances do not lead to the reasonable and positive inference that the assessee's case is false, the 5 ITA No.49/Chd/2019- Shri Nand Lal Popli, Shimla view taken by the Tribunal 'as not a fit case of levy of penalty u/s 271 (1)(c) of the Act' was a reasonable and positive.
In view of the above, taking into account the peculiar facts and circumstances of this case, we do not find it a fit case of levy of penalt y u/s 271 (1)(c) of the Act and the penalty so levied is accordingly ordered to be deleted.
In the result, the appeal of the assessee is hereby allowed. Order pronounced in the Open Court on 30.09.2019.
Sd/- Sd/- (एन. के. सैनी / N.K. SAINI) (संजय गग# / SANJAY GARG) उपा%य& /Vice President या'यकसद(य/ Judicial Member Dated : 30. 09.2019 "आर.के."
आदे श क, ( त4ल5प अ6े5षत/ Copy of the order forwarded to :
1. अपीलाथ&/ The Appellant
2. ()यथ&/ The Respondent
3. आयकर आय7 ु त/ CIT
4. आयकर आय7 ु त (अपील)/ The CIT(A)
5. 5वभागीय ( त न9ध, आयकर अपील0य आ9धकरण, च;डीगढ़/ DR, ITAT, CHANDIGARH
6. गाड फाईल/ Guard File आदे शानस ु ार/ By order, सहायक पंजीकार/ Assistant Registrar 6 ITA No.49/Chd/2019- Shri Nand Lal Popli, Shimla