The ITO, Ward-1, Bharuch V. M/s. Hariom Corporation, Ankleshwar

ITA 1012/AHD/2010

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0467 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 06-03-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 01-04-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T SANKAR SRDR
• Assessee Lawyers: VIJAY RANJAN
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE SHRI, A.K.GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.1012-1013/AHD/2010 ASSESSMENT YEAR 2003-04: INCOME TAX OFFICER, WARD-1, BHARUCH V/S . M/S HARIOM CORPORATION, C/O SUNIL B. PATEL, HAVELI FALIA, ANKLESHWAR [ PAN NO. AACFH 3650D ] / APPELLANT .. / RESPONDENT) /BY ASSESSEE SHRI VIJAY RANJAN, AR /BY RESPONDENT SHRI T. SANKAR, SR-DR /DATE OF HEARING 06-03-2013 ! /DATE OF PRONOUNCEMENT 08-03-2013 ' ' ' ' / // / O R D E R PER KUL BHARAT, JUDICIAL MEMBER:- THESE TWO APPEALS BY THE REVENUE ARE DIRECTED AGAI NST THE SEPARATE ORDERS OF COMMISSIONER OF INCOME-TAX (APPEALS)-VI, VADODARA (CIT(A) FOR SHORT) I.E., DATED 30-12-2009 AND 31-12-2009 PERTAI NING TO ASSESSMENT YEAR (AY) 2003-04. FIRST WE TAKE UP ITA NO.1012/AHD/2010. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUND OF A PPEAL:- 1(A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN DELETING THE PENALTY OF RS.3,77,000/- LEVI ED U/S. 271D OF THE ACT ON ACCOUNT OF LOAN ACCEPTED IN CASH ON VARIOUS DATE S FROM M/S. P.H. SHROFF, BHARUCH IN CONTRAVENTION OF SECTION 269SS O F THE I.T. ACT, 1961. ITA NO.1012-13/AHD/2010 A.Y.2003-04 ITO WD-1, BHARUCH V. M/S. HARIOM CORPORATION PAGE 2 3. BRIEFLY STATED FACTS ARE THAT PENALTY PROCEEDING S U/S 271D OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) WAS INITIATED AGAINST THE ASSESSEE IN RESPECT OF LOAN ACCEPTED BY ASSESSEE IN CONTRAVENTION OF SECTION 269SS OF THE ACT AND PENALTY ORDER WAS PASSED IMPOS ING PENALTY OF RS.3.77 LAKH. AGAINST THIS ORDER ASSESSEE FILED APPEAL BEFO RE LD. CIT(A) WHO AFTER CONSIDERING THE SUBMISSIONS OF ASSESSEE DELETED THE PENALTY IMPOSED BY ASSESSING OFFICER. 4. NOW REVENUE AGGRIEVED BY THIS ORDER PREFERRED AP PEAL BEFORE THE TRIBUNAL. 5. LD. SR-DR FOR THE REVENUE STRONGLY SUPPORTED THE ORDERS OF AUTHORITIES BELOW. ON THE CONTRARY, LD. COUNSEL FOR THE ASSESSE E SUBMITTED THAT IN QUANTUM APPEAL, THE ISSUE HAS BEEN REMITTED BACK TO THE FILE OF LD. CIT(A). HE HAS POINTED OUT THAT THE SUM OF RS.26,000/- DATED 0 4-12-2002, RS.68,000/- DATED 07-12-2002 AND RS.2.83 LAKH DATED 13-01-2007 ALSO FORM PART OF THE QUANTUM APPEAL. HE FURTHER SUBMITTED THAT IN QUANTU M PROCEEDINGS THOSE AMOUNTS HAVE BEEN ADDED U/S. 68 OF THE ACT, IN CASE THE ASSESSEE SUCCEEDED IN QUANTUM PROCEEDINGS THEN THE PRESENT PENALTY WOU LD NOT SURVIVE. HE RELIED ON THE DECISION OF HONBLE CO-ORDINATE BENCH RENDER ED IN QUANTUM APPEAL IN ASSESSEES OWN CASE IN ITA NO. 867/AHD/2009 DATED 16-03-2012. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND FORCE INTO THE SUBMISS IONS MADE BY LD. COUNSEL FOR THE ASSESSEE THAT SINCE THE AMOUNTS HAVE BEEN A DDED U/S. 68 OF THE ACT. IN CASE THE ASSESSEE SUCCEEDED IN QUANTUM PROCEEDIN GS THEN PRESENT APPEAL WOULD NOT SURVIVE. IN THIS VIEW OF THE MATTER AND I N THE INTEREST OF JUSTICE WE FEEL THAT THIS APPEAL SHOULD ALSO BE REMITTED BACK TO THE FILE OF LD. CIT(A) TO DECIDE AFRESH IN ACCORDANCE WITH LAW. THIS GROUND O F REVENUES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES AS INDICATED ABOVE . ITA NO.1012-13/AHD/2010 A.Y.2003-04 ITO WD-1, BHARUCH V. M/S. HARIOM CORPORATION PAGE 3 7. IN THE RESULT, REVENUES APPEAL IS ALLOWED FOR S TATISTICAL PURPOSES. COMING TO ITA NO.1013/AHD/2010. 8. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS O F APPEAL:- 1(A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN DELETING THE PENALTY OFRS.5,39,490/- LEVIE D U/S. 271(1)(C) OF THE ACT ON THE ADDITION OF RS.14,68,000/- BEING UNEXPL AINED CASH CREDIT US. 68 OF THE ACT WHICH WAS CONFIRMED BY THE CIT(A). (B) THE CIT(A) FAILED TO APPRECIATE THAT THE ASSESS EE COULD NOT RECONCILE THE CASH CREDITS WITH THE ACCOUNT OF LENDER, WHICH CLEARLY ESTABLISHED THAT THE ASSESSEE COMPANY AHS FURNISHED INACCURATE PARTICULARS OF ITS INCOME, THEREBY ATTRACTING EXPLANATION 1 TO SECTION 271(1)(C) OF THE ACT, 1961. MERELY CLAIMING THAT IT HAD NOT CONCEALED PAR TICULARS OF INCOME OR NOT FURNISHED INACCURATE PARTICULARS OF INCOME IS N OT SUFFICIENT TO PROVE THAT THE ASSESSEES CASE DOES NOT FALL UNDER THE PR OVISIONS OF SECTION 271(1)(C). FURTHER, IN THE RECENT JUDGEMENT IN THE CASE OF UNION OF INDIA AND OTHERS V. DHARMENDRA TEXTILES PROCESSORS AND OT HERS 306 ITR 277 (SC) THE HON. APEX COURT HAS HELD THAT THE EXP LANATIONS APPENDED TO SECTION 271(1)(C) OF THE INCOME-TAX ACT , 19611, INDICATE THE ELEMENT OF STRICT LIABILITY ON THE ASSESSEE FOR CONCEALMENT OR FOR GIVING INACCURATE PARTICULARS WHILE FILING THE RETU RN. THE PENALTY U/S. 271(1)(C) WAS, THEREFORE, RIGHTLY LEVIED BY THE ASS ESSING OFFICER. 9. LD. SR-DR FOR THE REVENUE SUPPORTED THE ORDERS O F AUTHORITIES BELOW WHEREAS LD. AR FOR THE ASSESSEE SUBMITTED THAT IN Q UANTUM APPEAL THE ISSUE IS REMITTED BACK TO THE FILE OF LD. CIT(A), THEREFO RE, THE PRESENT APPEAL DOES NOT SURVIVE. 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT HONBLE CO-ORDINA TE BENCH IN ASSESSEES OWN CASE IN ITA NO.867/AHD/2009 DATED 16-03-2012 (SUPRA) REMITTED BACK THE ISSUE TO THE FILE OF LD. CIT(A) AND IN THIS VIE W OF THE MATTER THIS APPEAL OF REVENUE IS ALSO REMITTED BACK TO THE FILE OF LD. CI T(A) TO DECIDE AFRESH IN ITA NO.1012-13/AHD/2010 A.Y.2003-04 ITO WD-1, BHARUCH V. M/S. HARIOM CORPORATION PAGE 4 ACCORDANCE WITH LAW. THIS GROUND OF REVENUES APPEA L IS ALLOWED FOR STATISTICAL PURPOSED. 11. IN THE RESULT, REVENUES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 12. IN COMBINED RESULT, BOTH THE APPEALS OF REVENUES A RE ALLOWED FOR STATISTICAL PURPOSE AS INDICATED ABOVE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- (A.K.GARODIA) (KUL BHARAT) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, *DKP #$%- 08/03/2013 ,-. / ' ' ' ' 001 001 001 001 21 21 21 21 / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. $.$04 5 / CONCERNED CIT 4. 5- / CIT (A) 5. 1 89 0004, 04!, ,-. / DR, ITAT, AHMEDABAD 6. 9<= >? / GUARD FILE. BY ORDER/ ' , /TRUE COPY/ @/, $ 04!, ,-. / STRENGTHEN PREPARATION & DELIVERY O F ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 06/03 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE NO 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 06/03 4) DATE OF CORRECTION 06/03 5) DATE OF FURTHER CORRECTION - - 6) DATE OF INITIAL SIGN BY MEMBERS 07/03 7) ORDER UPLOADED ON - - 8) ORIGINAL DICTATION PAD-PART HAS BEEN ENCLOSED IN THE FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 08/03