Rajka Realty Pvt. Ltd. Formerly Rajka Estate Developers Pvt.Ltd., Ahmedabad V. The Income tax Officer,Ward-5(3), Ahmedabad

ITA 10/AHD/2014

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 9281 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 07-02-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 01-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALBINUS TIRKEY
• Assessee Lawyers: S N DIVETIA
• Keywords: Depreciation
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENC H (BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI S. S. GODARA, JUDICIAL MEMBER) ITA. NO: 10/AHD/2014 (ASSESSMENT YEAR: 2007-08) RAJKA ESTATE DEVELOPERS PVT. LTD. ASHRAY NANDANVAN SOCIETY, B/H. MONEREPOSE, S.G. HIGH WAY, AHMEDABAD-380058 V/S INCOME TAX OFFICER, WARD- 5 (3), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AABCB4023A APPELLANT BY : SHRI S. N. DIVETIA, AR RESPONDENT BY : SHRI ALBINUS TIRKEY, SR. D.R . ( )/ ORDER DATE OF HEARING : 07 -02-201 7 DATE OF PRONOUNCEMENT : 10 -02-2017 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE LD. CIT(A)- XI, AHMEDABAD DATED 25.11.2013 PERTAINING TO A.Y. 2 007-08. ITA NO. 10/A HD/2014 . A.Y. 2007-08 2 2. THE ONLY GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE PENALTY OF RS. 2,16,700/- LEVIED U/S.271(1)(C) OF THE ACT. 3. THE ROOTS FOR THE LEVY OF PENALTY LIE IN THE ASSESS MENT ORDER DATED 04.11.2009 MADE U/S. 143(3) OF THE ACT. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE A.O. NOTICED THAT THE A SSESSEE HAS SHOWN SOFTWARE SALES RECEIPT. THE A.O. WAS OF THE OPINION THAT THE SAID RECEIPT HAS NOTHING TO DO WITH THE BUSINESS OF THE ASSESSEE AND TREATED THE SAME UNDER THE HEAD INCOME FROM OTHER SOURCES INSTEAD OF INC OME FROM BUSINESS OR PROFESSION AS SHOWN BY THE ASSESSEE. THE A.O. BY NO T TREATING THE IMPUGNED RECEIPT ALSO DISALLOWED THE CLAIM OF ADMIN ISTRATIVE EXPENSES, DEPRECIATION AND FINANCIAL CHARGES. THE ASSESSMENT WAS CHALLENGED IN SUCCESSIVE APPEALS WITHOUT ANY SUCCESS. 4. THE PENALTY PROCEEDINGS WERE INITIATED U/S. 271(1)( C) OF THE ACT FOR FURNISHING INACCURATE PARTICULARS OF INCOME. THE PE NALTY WAS ACCORDINGLY LEVIED AT RS. 2,46,590/-. 5. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT( A) BUT WITHOUT ANY SUCCESS. 6. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE REITERA TED WHAT HAS BEEN STATED BEFORE THE LOWER AUTHORITIES. PER CONTRA, THE LD. D .R. STRONGLY SUPPORTED THE FINDINGS OF THE REVENUE AUTHORITIES. ITA NO. 10/A HD/2014 . A.Y. 2007-08 3 7. WE HAVE CAREFULLY CONSIDERED THE ORDERS OF THE AUTH ORITIES BELOW. THERE IS NO DISPUTE THAT THE ASSESSEE HAS SHOWN THE IMPUGNED SALE RECEIPTS AS INCOME UNDER HEAD PROFITS AND GAINS OF BUSINESS OR PROFESSION. IT IS ALSO TRUE THAT THE A.O. HAS TAXED THE SAME UNDER THE HEA D INCOME FROM OTHER SOURCES AND DISALLOWED THE EXPENDITURES CLAIMED BY THE ASSESSEE. IN OUR CONSIDERED OPINION, MERELY BY CHANGING THE HEAD OF INCOME WOULD NOT IMPLY THAT THE ASSESSEE HAS CONCEALED THE INCOME OR HAS FILED INACCURATE PARTICULARS OF THE INCOME. THE CLAIM OF THE ASSESSE E MAY NOT HAVE FOUND ANY FAVOUR IN THE QUANTUM PROCEEDINGS BUT THAT BY I TSELF WOULD NOT TRIGGER THE PROVISIONS OF SECTION 271(1)(C) OF THE ACT. FOR THIS PROPOSITION, WE DRAW SUPPORT FROM THE DECISION OF THE HONBLE SUPREME CO URT IN THE CASE OF RELIANCE PETRO PRODUCTS 322 ITR 158; WE DO NOT FIND ANY MERIT IN THE LEVY OF PENALTY. ACCORDINGLY, WE SET ASIDE THE FINDINGS OF THE LD. CIT(A) AND DIRECT THE A.O. TO DELETE THE PENALTY SO LEVIED U/S. 271(1 )(C) OF THE ACT. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 10- 02- 20 17 SD/- SD/- (S. S. GODARA) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY ACC OUNTANT MEMBER AHMEDABAD: DATED 10 /02/2017 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. ITA NO. 10/A HD/2014 . A.Y. 2007-08 4 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD