Shri Binod Kumar Agarwal, Kolkata v. ITO, Ward - 1, Malda, Malda

ITA 1482/KOL/2009 | 2000-2001
Pronouncement Date: 28-05-2010

Appeal Details

RSA Number 148223514 RSA 2009
Assessee PAN ACNPA6884D
Bench Kolkata
Appeal Number ITA 1482/KOL/2009
Duration Of Justice 9 month(s) 3 day(s)
Appellant Shri Binod Kumar Agarwal, Kolkata
Respondent ITO, Ward - 1, Malda, Malda
Appeal Type Income Tax Appeal
Pronouncement Date 28-05-2010
Appeal Filed By Assessee
Bench Allotted C
Tribunal Order Date 28-05-2010
Date Of Final Hearing 13-05-2010
Next Hearing Date 13-05-2010
Assessment Year 2000-2001
Appeal Filed On 25-08-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : KOLKATA [BEFORE HONBLE SRI D. K. TYAGI JM & HONBLE SRI C. D. RAO AM] I.T.A. NOS.1482 TO 1484/KOL/2009 ASSESSMENT YEARS: 2000-01 TO 2002-03 SRI BINOD KR. AGARWAL -VS- INCOME-TAX OFFICER WD-1 MALDA (PA NO. ACNPA 6884 D) (APPELLANT) (RESPONDENT) APPELLANT BY : SRI S. BANDYOPADHYAY RESPONDENT BY : MRS. JYOTI KUMARI O R D E R PER BENCH : THESE APPEALS PREFERRED BY THE ASSESSEE ARE DIRECT ED AGAINST THE SEPARATE ORDERS OF THE LD. CIT(A) KOLKATA ALL DATED 01.07.2009 FOR ASSESSMENT YEARS 2000-01 TO 2002- 03 ON THE SOLE GROUND OF CONFIRMING THE PENALTY U/S . 271(1)(C) OF THE I. T. ACT. SINCE FACTS ARE IDENTICAL AND GROUNDS ARE COMMON FOR THE SAKE OF CONVENIENCE WE DISPOSE OF ALL THE APPEALS BY THIS CONSOLIDATED ORDER. 2. SINCE FACTS ARE COMMON FOR ALL THE ASSESSMENT YE ARS WE DISPOSE OF ALL THE APPEALS BY TAKING THE FACTS FOR ASSESSMENT YEAR 200 0-01. BRIEF FACTS OF THE CASE AS OBSERVED BY THE AO ARE THAT THE ASSESSEE IS A DEALE R OF MOTOR CYCLE AND ALSO ARRANGED FINANCE ON PURCHASE OF MOTOR BIKE WITH THE AGREEMEN T OF UCO BANK. ASSESSEE RECEIVED 17.34% FLAT INTEREST ON FINANCED AMOUNT BUT INTERES T PAID BY HIM TO THE BANK WAS @ 17.34% ON THE FINANCE AMOUNT AT REDUCING METHOD. T HE DIFFERENCE AMOUNT BETWEEN THE SAID MODES WAS CONCEALED BY THE ASSESSEE. AGAIN 5% SERVICE CHARGE WAS RECEIVED BY THE ASSESSEE ON THE FINANCED AMOUNT AT THE TIME OF DELIVERY OF MOTOR BIKES BUT HE PAID THE BANK 1% BEFORE 1.6.2000 AND 2% OR RS.500/- WHIC HEVER WAS LESSER AS SERVICE CHARGE ON FINANCED AMOUNT AS SERVICE CHARGE TO BANK. BY T HIS WAY ASSESSEE CONCEALED RS.6 36 546/- INCOME FROM THESE HEAD. ON APPEAL LD . CIT(A) REDUCED THE INCOME FROM THESE CONCEALED SOURCE TO RS.2 50 000/- AND HONBLE ITAT CONFIRMED THE INCOME FROM THESE HEAD TO RS.2 50 000/-. FROM THE ABOVE FACTS THE AO HELD THAT ASSESSEE HAS CONCEALED THE INCOME FROM THESE SOURCE TO THE TUNE OF RS.2 50 000/-. ASSESSEES EXPLANATION THAT HE HAS NOT CONCEALED THE INCOME HA S NO BASIS WHICH IS APPARENT FROM THE ABOVE. IN VIEW OF THE ABOVE THE AO HELD THAT T HE ASSESSEE HAS CONCEALED HIS PARTICULARS OF INCOME AND IT IS A FIT CASE FOR IMPO SITION OF PENALTY. HENCE MINIMUM 2 PENALTY I.E. 100% OF TAX SOUGHT TO BE EVADED WHICH IS RS.75 000/- WAS IMPOSED AS PENALTY U/S. 271(1)(C) OF THE I. T. ACT. ON APPEAL THE LD. CIT(A) CONFIRMED THIS ACTION OF THE AO. BEING FURTHER AGGRIEVED NOW THE ASSESS EE IS IN APPEAL BEFORE US. 3. AT THE TIME OF HEARING BEFORE US THE LD. COUNSE L FOR THE ASSESSEE WHILE REITERATING HIS SAME SUBMISSION AS SUBMITTED BEFORE THE LOWER AUTHORITIES FURTHER SUBMITTED THAT THE ASSESSEE IS A DEALER OF MOTOR CY CLE AND ARRANGED FIANC FOR THE PURCHASE FROM UCO BANK MALDA. THE AO MADE ADDITION OF RS.6 36 546/- UNDER THE HEADS SERVICE CHARGES AND INTEREST OF MOTOR BIKE FI NANCE ON ESTIMATE BASIS. THE LD. CIT(A) HAS DELETED THE ADDITION OF RS.3 86 546/- AN D CONFIRMED THE BALANCE AMOUNT OF RS.2 50 000/-. THE SAME WAS CONFIRMED BY THE ITAT. HE FURTHER SUBMITTED THAT CERTAIN CLAIM FOR EXPENSES HAS BEEN REJECTED. FACTS RELATI NG TO THE SAID CLAIMS WERE DISCLOSED. THEREFORE PENALTY COULD NOT BE IMPOSED. HE ALSO S UBMITTED THAT THE ADDITION WAS MADE WITHOUT ANY MATERIAL ON RECORD AND ON THE BASIS OF IMPROPER EXPLANATION. THUS THE IMPOSITION OF PENALTY CANNOT BE SUSTAINED. HE ALSO SUBMITTED THAT MERE FACT THAT ADDITION HAS BEEN CONFIRMED BY ITSELF CANNOT LEAD T O THE CONCLUSION THAT PENALTY SHOULD ALSO BE CONFIRMED. HE ALSO SUBMITTED THAT MERE FAC T OF ADDITION ON ESTIMATE BASIS PARTICULARLY WHEN THE ASSESSMENT IS MADE ON THE INF ERENCE FLOWING FROM THE INABILITY OF THE ASSESSEE TO ESTABLISH THE CASE PLEADED BY HIM W ILL NOT BE SUFFICIENT FOR THE PURPOSE OF IMPOSITION OF PENALTY. HE ALSO SUBMITTED THAT WHER E CERTAIN ADDITIONS./DISALLOWANCES WHICH WERE CONFIRMED UPTO THE STAGE OF APPELLATE TR IBUNAL ARE CONCERNED UNLESS THERE IS A FINDING THAT THE EXPLANATION OF THE ASSESSEE I S FALSE THE CLAIM OF THE ASSESSEE CANNOT BE TREATED AS MALAFIDE. IN SUPPORT OF HIS SUBMISSIO NS HE PLACED RELIANCE ON THE FOLLOWING CASE LAWS: I) MEHTA ENGINEERS LTD. 300 ITR 308 (P&H) II) P. GOWINDASAMY 263 ITR 509 (MAD) III) NUCHEM LTD. 49 ITD 441 (ITAT DEL) IV) S. DHANABAI 309 ITR 026 V) DHARMENDRA TEXTILES PROCESSORS & ORS. 306 ITR 27 7 VI) MIMOSA INVESTMENT CO. (P) LTD. VS. ITO ITA NO. 2983/MUM/2007 DATED 15.1.2009 (ITAT MUM) VII) NOKIA INDIA (P) LTD. 124 TTJ 145 VIII) HARYANA WAREHOUSING CORPORATION 314 ITR 215 A ND IX) DR. HAKEEM S. A. SYED SATTAR (2009) 314 ITR 299 . CONCLUDING HIS ARGUMENT HE SUBMITTED THAT THE PENA LTY IMPOSED BE DELETED. 3 4. ON THE OTHER HAND THE LD. DR RELIED ON THE ORDE RS OF THE LOWER AUTHORITIES AND URGED BEFORE THE BENCH TO CONFIRM THE ACTION OF THE LD. CIT(A). HE ALSO PLACED RELIANCE ON THE FOLLOWING CASE LAWS : I) 298 ITR 106 II) UNION OF INDIA & ORS. VS. DHARMENDRA TEXTILES P ROCESSORS 306 ITR 277 III) CIT V. ATUL MOHAN BINDAL 317 ITR 1 IV) CIT V. SREE KRISHNA TRADING CO. 253 ITR 645 V) SUSHIL KUMAR SARAD KUMAR V. CIT 232 ITR 588 5. WE HAVE HEARD THE RIVAL SUBMISSIONS PERUSED TH E MATERIAL AVAILABLE ON RECORD AND THE CASE LAWS CITED BY BOTH THE REPRESENTATIVES . WE FIND THAT THE LD. CIT(A) HAS CONFIRMED THE PENALTY BY OBSERVING AS UNDER : ON CAREFUL CONSIDERATION OF THE AFORESAID SUBMISSI ON IT MAY BE STATED THAT WHILE MAKING THE ADDITIONS THE AO HAS OBTAINED NECESSAR Y MATERIALS AND HAS GIVEN A CLEAR FINDING THAT ASSESEE HAS CONCEALED HIS INCOME FURNI SHING INACCURATE PARTICULARS. HE HAS GIVEN THE BASIS OF HIS CALCULATION. HIS FINDIN G HAS FURTHER BEEN CONFIRMED THOUGH NOT TOTALLY BUT CERTAIN EXTENT BY THE CIT(A) AND A LSO ITAT. THE DECISION CITED BY THE LD. AR ARE NOT RELEVANT AS THE TRADING RESULT OF T HE ASSESSEE WAS NOT DISTURBED BY THE AO AND HE HAS MADE CERTAIN DISALLOWANCES ON THE BAS IS OF INQUIRY CONDUCTED BY HIM AND MATERIAL GATHERED. NO ESTIMATED DISALLOWANCE OR ADDITION WAS MADE APPLYING ANY FLAT RATE OF INCOME. ON THE OTHER HAND IN VIEW OF THE DECISION IN THE CASE OF GOI VS DHARMENDRA TEXTILE PROCESSORS (2008) 306 ITR 277 T HE APEX COURT HAS CLEARLY MENTIONED THAT PENALTY UNDER THE INCOME TAX ACT IS A CIVIL LIABILITY AND WILLFUL CONCEALMENT IS NOT AN ESSENTIAL INGREDIENT FOR ATT RACTING CIVIL LIABILITY AS IN THE CASE OF PROSECUTION U/S. 276C OF THE ACT. THEREFORE IT IS NOT NECESSARY TO PROVE THAT THE ASSESEE HAS CONSCIOUSLY MADE THE CONCEALMENT OR FUR NISHED INACCURATE PARTICULARS OF INCOME. THE CASE LAWS CITED BY THE LD. COUNSEL FOR THE ASSE SSEE ARE DISTINGUISHABLE ON FACTS AS WE FIND THAT DURING THE PENALTY PROCEEDINGS THE EX PLANATION OF THE ASSESSEE WAS GENERAL IN NATURE AND NO BONA FIDE EXPLANATION FOR FILING INACCURATE PARTICULARS WAS GIVEN BY THE ASSESSEE. IN VIEW OF THIS WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) AND THE SAME IS HEREBY UPHELD. THE APPEALS OF THE ASSESSEE ARE THEREFORE DISMISSED. 6. IN THE RESULT THE APPEALS OF THE ASSESEE ARE D ISMISSED. 7. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 28. 5.10 SD/- SD/- (C. D. RAO) (D. K. TYAGI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 28TH MAY 2010 4 COPY TO : 1. SRI BINOD KR. AGARWAL C/O V. N. PUROHIT & CO. CHAR TERED ACCOUNTANTS 32B GANESH CHANDRA AVENUE 2 ND FLOOR KOLKATA-13. 2. ITO WD-1 MALDA 3. CIT(A) JALPAIGURI 4. CIT JALPAIGURI 5. D.R. ITAT KOLKATA. TRUE COPY BY ORDER DEPUTY REGISTRAR JD.(SR.P.S.) I.T.AT. KOLKATA