2019 (10) TMI 288 - AT - Income Tax

Addition to advance/deposits - penalty u/s 271 (1) (c) - HELD THAT - One of the persons Sh. Sanjay Patel could not attend the office as he was abroad. It has been further stated in the remand report that the creditworthiness and the genuineness of the transactions were examined on oath and it is verified from the statement/s recorded that all the 13 persons have made their bookings and that they have invested with the assessee for booking of the property. It has also been stated by the assessing officer that out of the 13 persons, 9 persons have stated that they have cancelled their bookings and have received back their booking amounts and have also submitted their confirmations in this regard. The remand report further states that the remaining 3 persons have stated that the cancellation amounts were converted into unsecured loans and interest was received by them on the said amounts. It has also been mentioned in the remand report that in the case of one Smt Smitaben Mahendra Kumar Patel she was allotted shop No. 3 against her booking. Thus a perusal of the remand report submitted by the assessing officer in this regard clinches the issue in favour of the assessee in as much as out of the 14 persons, 13 persons have duly accepted and confirmed the transactions. AO has also examined their creditworthiness and has not drawn any negative inference in this regard. Only one out of the 14 persons, one Sh. Sanjay Patel was not available for recording of the statement under oath as he was abroad. As seen that Sh. Sanjay Patel has only advanced an amount of ₹ 51,000/- and looking into the facts and totality of the circumstances that other 13 persons out of the 14 persons have confirmed the transactions of the assessee, the amount of ₹ 51,000/- loses significance. Accordingly, in view of the remand report of the assessing officer, we are of the considered opinion that the impugned addition does not have any foundation to survive. Accordingly we set aside the order of the CIT (Appeals) and direct the assessing officer to delete impugned addition. Since the quantum addition stands deleted, the consequential penalty imposed under section 271 (1) (c) also does not survive. The same also stands deleted.

Summary

Issues:
1. Quantum addition of ?52,14,000 in the assessment.
2. Imposition of penalty under section 271(1)(c) of the Income Tax Act.

Analysis:

Issue 1: Quantum Addition of ?52,14,000
The case involved a partnership firm engaged in real estate business, where the assessing officer added ?52,14,000 as income under section 68 of the Act due to unconfirmed booking advance deposits. The Ld. Commissioner of Income Tax (Appeals) upheld the addition citing lack of bank statements from third parties to prove the source of income. The Tribunal, in the first round, remitted the matter to the assessing officer for fresh investigation. The subsequent remand report revealed that out of 14 parties, 13 confirmed the transactions, with one party unavailable for statement due to being abroad. The Tribunal noted that the remand report supported the assessee's claim, leading to the deletion of the addition as it lacked foundation to survive.

Issue 2: Imposition of Penalty under Section 271(1)(c)
The assessing officer imposed a penalty of ?14,40,710 under section 271(1)(c) based on the addition of ?52,14,000. The Ld. CIT (Appeals) confirmed the penalty. However, since the quantum addition was deleted due to lack of foundation, the Tribunal also deleted the consequential penalty as it did not survive.

In conclusion, both the appeals of the assessee were allowed, with the Tribunal setting aside the Ld. Commissioner of Income Tax (Appeals) order and directing the assessing officer to delete the impugned addition. The consequential penalty under section 271(1)(c) was also deleted. The decision was pronounced in open court on 01.10.2019.