2019 (9) TMI 632 - AT - Income Tax

Tribunal confirms penalty for unexplained capital & lack of evidence in tax case

Verma Service Station Bye Pass Road, Firozabad. Versus DCIT, Circle 2 (2) (1), Firozabad.

The Tribunal upheld the penalty under section 271(1)(c) and the addition of Rs. 92,00,000/- as unexplained capital under section 68 for the Assessment ... Levy of penalty u/s 271(1)(c) - Scrutiny under CASS - addition of unexplained capital of the partner of the firm u/s 68 - AO also disallowed interest - second round of assessment,the assessee again could not explain the source of capital introduction - HELD THAT:- From the information received by the Directorate of Income-tax (Investigation), it was found that the assessee had received the bogus gift of certain amount which, in fact, was the income of the assessee introduced in her funds in the shape of the gifts. As the assessee was not able to produce said persons for confirmation of gift and the creditworthiness of the donors could not be proved by the assessee, the Assessing Officer made addition under section 68 which was confirmed in appeal. Held that since the assessee failed to prove the creditworthiness of the donors there was no illegality in the orders of the authorities below. The same proposition of law is applicable to the facts of the present case as the assessee failed to prove the creditworthiness of the cash deposits (Capital)in the partnership firm and therefore was no illegality in the orders of the authorities below as well in the present case. No illegality in the orders of the authorities below as well as in the impugned order of the Tribunal and since the assessee/ appellant has failed to prove the creditworthiness of the partners as well as failed to place any evidence in support of its contention in respect of the issues which are raised before the Tribunal, therefore, we find no error in the order of the ld. CIT(A). The order of the ld. CIT(A)is confirmed and the appeal filed by the appellant is dismissed as the ld. CIT(A) has recorded a categorical finding of facts. Following the case of Jagmohan Ram Chandra Vs. CIT [2004 (8) TMI 46 - ALLAHABAD HIGH COURT] and Smt. Sheela Ahuja [2017 (11) TMI 686 - ALLAHABAD HIGH COURT] we hereby upheld the order the ld. CIT(A) and confirmed the levy of penalty u/s 271(1)(c) - Decided against assessee. Issues Involved:1. Sustaining penalty under section 271(1)(c) of the Income Tax Act.2. Alleged concealment of income and furnishing inaccurate particulars.3. Lack of sufficient opportunity provided by the Assessing Officer.4. Legality of the assessment order based on the confession of the assessee's counsel.5. Unexplained capital introduction and its treatment under section 68 of the Income Tax Act.Issue-wise Detailed Analysis:1. Sustaining Penalty under Section 271(1)(c):The assessee challenged the penalty of Rs. 28,43,000/- levied by the Assessing Officer (AO) under section 271(1)(c) for the Assessment Year (A.Y.) 2009-10. The Tribunal confirmed the penalty, stating that the AO correctly imposed it after analyzing section 271(1)(c) and its explanation, and relying on various case laws. The Tribunal noted that the assessee had made a claim without any basis and failed to provide evidence for the cash deposits claimed as advance for the sale of land.2. Alleged Concealment of Income and Furnishing Inaccurate Particulars:The Tribunal observed that the assessee could not explain the source of Rs. 92,00,000/- introduced as capital by the partners, which was treated as unaccounted income under section 68. The assessee's failure to provide documentary evidence for the claimed advance against the sale of land led to the conclusion that the explanation was incorrect. The Tribunal upheld the AO's decision, emphasizing that the assessee's explanation was not supported by any documentary evidence.3. Lack of Sufficient Opportunity Provided by the Assessing Officer:The assessee argued that the AO did not provide sufficient opportunity before passing the order under section 271(1)(c). However, the Tribunal noted that the AO had issued multiple summons and provided opportunities at both the assessment and appellate stages. Despite these opportunities, the assessee failed to produce evidence or the partners for statements, leading to the conclusion that sufficient opportunity was provided.4. Legality of the Assessment Order Based on the Confession of the Assessee's Counsel:The Tribunal addressed the issue of the assessment order being based on the confession of the assessee's counsel. It was noted that the initial assessment was set aside because the additions were based on the counsel's confession without investigating the facts. However, in the reassessment, the assessee again failed to explain the source of the capital introduction, confirming the AO's earlier findings. The Tribunal found no error in the AO's reliance on the confession, given the lack of evidence provided by the assessee.5. Unexplained Capital Introduction and its Treatment under Section 68:The Tribunal upheld the addition of Rs. 92,00,000/- as unexplained capital under section 68. The assessee's explanation that the cash was received as an advance for the sale of land was not supported by any documentary evidence. The Tribunal noted discrepancies in the balance sheet, where the sale value of the land was shown as Rs. 10,07,560/-, but advances of Rs. 68,50,000/- were claimed. The Tribunal agreed with the AO and CIT(A) that the assessee failed to prove the source and nature of the deposits, leading to the confirmation of the addition as unexplained income.Conclusion:The Tribunal dismissed the appeal, confirming the penalty under section 271(1)(c) and the addition of Rs. 92,00,000/- as unexplained capital under section 68. The Tribunal found no merit in the assessee's arguments and upheld the orders of the lower authorities, emphasizing the lack of evidence and the failure to discharge the onus of proving the source of the deposits. The stay application was also dismissed as infructuous following the disposal of the appeal.