Shri Laxmanbhai T. Pethani, Surat V. The ACIT.,Circle-9, Surat

ITA 1012/AHD/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5897 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 30-03-2017
• Assessment Year: 2004-2005
• Appeal Filed On: 08-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R B SHAH
• Keywords: Unexplained cash credit; Salary income; Question of law; Revised return
• Section: 131; 68

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV , JUDICIAL MEMBER AND SHRI MANISH BORAD , ACCOUNTANT MEMBER ./ ITA NO. 1 012 / AHD/201 4 / ASSTT. YEAR: 2004 - 20 0 5 SHRI LAXMANBHAI T. PETHANI, 127, NIJANAND SOC. VARACHHA ROAD, SURAT PAN :AAOPP2157K VS ACIT, CIRLE - 9 , SURAT (APPLICANT) (RESPONENT) ASSESSEE BY : SHRI R.B. SHAH , AR REVENUE BY : SHRI JAMES KURIAN , SR .DR / DATE OF HEARING : 30 / 03 /201 7 / DATE OF PRONOUNCEMENT: 22 / 05 /201 7 / O R D E R PER MANISH BORAD , ACCOUNTANT MEMBER : THIS APPEAL BY THE ASSESSEE ARISING OUT OF THE ORDER PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - V, SURAT (IN SHORT LD.CIT(A)) DATED 13/01/2014 CONFIRMING PENALTY OF RS.4,28,866/ - IMPOSED BY A.C.I.T, C IRCLE - 9, SURAT, U/S.2 71(1)(C) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT ) DATED 30/0 3/2009 IN RELATION TO ASST. YEAR 2004 - 05. 2 . BRIEFLY STATED FACTS AS CULLED OUT FROM THE AVAILABLE RECORDS ARE THAT ASSESSEE IS AN INDIVIDUAL EARN ING INCOME FROM SALARY AND O THER SOURCES . ITA NO S.1012 /AHD/2014 ASSESSMENT YEAR : 2004 - 05 2 ORIGINAL RETURN OF INCOME WAS FILED ON 30/10/20 0 4 DECL ARI NG TOTAL INCOME OF RS.1,03,330/ - . SURVEY U/S.133A OF THE ACT WAS CARRIED ON 21/03/2005 IN THE CASE OF MR.JAYANTIBHAI LAKHANI PROP. OF M/S.INDO FASHION FAB. DURING THE COURSE OF SURVEY MR.JAYANTIBHAI LAKHANI ADMITTED THAT HE AND HIS GROUP MEMBERS ( WHICH INCLUDED ASSESSEE MR.LAXMANBHAI PETHARI ) HAD ACCEPTED UNSECURED LOANS BY GIVING CASH TO THE PERSONS FROM WHOM LOANS AND ADVANCE WERE RECEIVED. TOTAL DISCLOSURE MADE BY MR.JAYANTIBHAI LAKHANI AMOUNTED TO RS.2,65,76,135/ - WHICH INCLUDES RS.10,52,881/ - I N THE NAME OF THE ASSESSEE. THEREAFTER ASSESSEE FILED REVISED RETURN ON 13/03/2005 DEC LARING INCOME OF RS.3,14,762/ - I N THE REVISED RETURN ASSESSEE DISCLOSED RS.2,11,840/ - TOWARDS UNEXPLAINED CASH CREDIT FROM MR.R.R. SHARMA. LEARNED ASSESSING OFFICER (IN S HORT LD.AO) MADE AN ADDITION OF RS.8,14,401/ - FOR UNEXPLAINED CASH CREDIT AS THE ASSESSEE RETRACTED AND REDUCED NON GENUINE LOAN OF RS.8,41,401/ - A PART FROM THIS ASSESSEE WAS UNABLE TO EXPLAINED GENUINENESS O F CASH CREDIT OF RS.2,89,253/ - . I NCOME ASSES SED AT RS.14,45,460/ - A FTER MAKING ADDITION OF RS.11,30,654/ - . I N QUANTUM APPEAL ASSESSEE LOST BEFORE LD.CIT(A) AS WELL AS TRIBUNAL , AS HE WAS UNABLE TO PROVE IDENTITY, GENUINENESS AND CREDIT WORTHINESS OF CASH CREDITS. SUBSEQUENT TO THE ORDER OF LD.CIT(A) AND CONFIRMING QUANTUM ADDITION PENALTY PROCEEDINGS U/S.271(1)(C) WERE INITIA TED AND ORDER DATED 30/03/2009 WAS PASSED, IMPOSING PENALTY OF RS.4,28,866/ - U/S.271(1)(C) FOR FURNISHING INACCURATE PARTICULARS OF INCOME . 3. AGGRIEVED, ASSEESEE FILED IN APPE AL BEFORE LD.CIT(A) AGAINST THE PENALTY IMPOSED BUT COULD NOT SUCCEED . 4. NOW, ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST THE ORDER OF LD.CIT(A) CONFIRMING PENALTY U/S.271(1)(C). AT THE OUTSET LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT ASSESSEE MO VED BEFORE THE HONBLE JURISDICTIONAL HIGH COURT AGAINST THE ORDER OF HONBLE TRIBUNAL DATED ITA NO S.1012 /AHD/2014 ASSESSMENT YEAR : 2004 - 05 3 22/10/2010 AND APPEAL HAS BEEN ADMITTED FORMULATING THE SUBSTANTIAL QUESTION OF LAW. FURTHER HONBLE HIGH COURT OF MUMBAI IN THE CASE OF CIT V/S M/S. ADVAITA EST AT E DEVELOPMENT PVT. LTD. TAX APPEAL NO.1498 OF 2014 DATED 17/02/2017 HAS HELD THAT IF THE APPEAL STAND S ADMITTED BY THE HONBLE HIGH COURT ON THE S UBSTANTIAL QUESTION OF LAW IT MEAN S THAT ADDITION MADE ARE DEBATABLE AND IN SUCH SITUATION PENALTY CANNOT B E IMPOSED U/S.27 1(1)(C) OF THE ACT FOR FURNISHING I NACCURATE PARTICULARS OF INCOME. LD.COUNSEL FURTHER SUBMITTED THAT ADDITION MADE BY THE ASSESSING OFFICER WAS MERELY ON THE BASIS STATEMENT GIVEN BY HIM DURING THE COURSE OF SURVEY HAVING NO EVIDENT IARY VALUE WHICH WAS LATTER ON RETRACTED. NO INCR IMINATING MATERIAL WAS FOUND/ DETECTED BY THE REVENUE AUTHORITIES TO MAKE THE ADDITION OF RS.8,14,401/ - FURTHER AS REGARD TO UNEXPLAINED CASH CREDIT OF RS.2,89,253 / - CERTAINLY ASSESSEE WAS UNABLE TO FILE RELEVANT DOCUMENTS AND DETAILS BEFORE THE LOWER AUTHORITIES DURING QUANTUM PROCEEDINGS BUT NOW ASSESSEE POSSESS ALL THE DETAILS OF THE CASH CREDITORS INCLUDING IDE NTITY PROOF, PAN NO., CONFIRMATION LETTERS AND INCOME TAX RETURN WHICH ARE SUFFICIENT TO PROVE THE ID ENTITY, GENUINENESS AND CREDITWORTHINESS OF THE CASH CREDITORS. IT IS THEREFORE REQUESTED THAT PENALTY IMPOSED U/S.271(1)(C) OF THE ACT MAY BE DELETED. 5. O N THE OTHER HAND LEANED DEPARTMENTAL REPRESENTATIVE (IN SHORT LD.DR) VEHEMENTLY ARGUE D SUPPORTING T HE ORDER OF LOWER AUTHORITIES . 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD PLACED BEFORE US. SOLITARY GRIEVANCE OF THE ASSESSEE IS AGAINST THE ORDER OF LD.CIT(A) CONFIRMING PENALTY OF RS.4,28,866/ - IMPOSED BY LD.AO U/S.271(1)(C) OF THE ACT. WE FURTHER OBSERVE THAT CO - ORDINATE BENCH IN ITA NO.616/AHD/2008 IN THE CASE OF ASSESSEE FOR A.Y. 2004 - 05 ADJUDICATED THE QUANTUM ISSUE AND UPHELD THE ORDER OF LD.CIT(A) CONFIRMING THE ADDITION MADE BY THE LD.AO AND DISMISSED THE APPEAL OF THE ASSESS EE. ON CONFIRMING OF QUANTUM ADDITION S, PENALTY OF ITA NO S.1012 /AHD/2014 ASSESSMENT YEAR : 2004 - 05 4 RS.4,28 ,866/ - WAS IMPOSED BY LD.AO U.S.271(1)(C) OF THE ACT . I T IS ALSO NOT DISPUTED THAT ASSESSEE DID NOT FILE EVIDENCE TO PROVE THE GENUINENESS, IDENTITY AND CREDITWORTHINESS OF THE ALLEGED CASH CREDITORS. WE ALSO OBSERVE THAT OUT OF TOTAL ADDITION OF RS.13,42,134/ - ADDITION OF RS.8,41,401/ - WAS MADE ONLY ON THE BASIS OF STATEMENT GIVEN ON THE BEHALF OF THE ASSES SEE BY MR.JAINTIBHAI LAKHANI DURING THE COURSE OF SURVEY U/S.133A OF THE ACT. ASSESSEE WHILE FILING REVISED RETURN OF INCOME RETRA CTED FROM THE STATEMENT ADMITTING RS.10,52,881/ - AND ONLY DISCLOSED RS.2,11,480/ - LD.AO WITHOUT HAVING ANY INCRIMINATING MATERI AL MADE ADDITION FOR BOGUS UNSECURED LOAN OF RS.8 , 41 , 401/ - 6.1 WE ALSO NOTICE THAT LD.AO MADE AN ADDITION OF RS.2,89,253/ - TOWARDS UNEXPLAINED CASH CREDIT APPEARING IN THE BALANCESHEET. NO DETAILS OF NAME, ADDRESS, CONFIRMATION AND OTHER DETAILS OF THE D EPOSITORS WERE FILED AT ANY STAGE. FURTHER DURING THE COURSE OF APPEAL BEFORE US ASSESSEE HAS PLACED PAPER BOOK RUNNING FROM PAGE 1 TO 45 SHOWING COPIES OF PAN, CONFIRMATION, INCOME TAX RETURN IDENTITY PROOF OF THE ALLEGED CREDITORS. IN ORDER TO PROVE THE IDENTITY , GENUINENESS AND CREDITWORTHINESS OF CREDITORS EVEN THOUGH THEY WERE NOT FILED DURING QUANTUM PROCEEDINGS THEY SHOULD HAVE BEEN LOOKED INTO AS IT IS WELL ESTABLISHED PRINCIPLE THAT PENALTY AND QU ANTUM PROCEEDINGS ARE SEPARATE . 7. WE FURTHER O BSERVE THAT ASSESSEE HAS MOVED TO HONBLE JURISDICTIONAL HIGH COURT AGAINST THE ORDER OF TRIBUNAL DATED 22/10/2010 DISMISSING ASSESSEES APPEAL AND CONFIRMING THE ADDITION. HON BLE HIGH COURT HAS ADMITTED ASSESSEE S APPEAL FRAMING FOLLOWING SUBS TANTIAL QUE STION OF LAW VIDE APPEAL NO.1296 OF 2011 DATED 05/09/2012 WHICH READS AS UNDER: WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE INCOME TAX APPELLATE TRIBUNAL WAS RIGHT IN LAW IN CONFIRMING THE ADDITIONS MADE BY THE AO ONLY ON THE ITA NO S.1012 /AHD/2014 ASSESSMENT YEAR : 2004 - 05 5 BASIS OF THE STATEMENT OF A 3 RD PARTY, THEREBY IVER LOOKING THE PROVISIONS OF SECTION 131 OF THE ACT. 7.1 WE FURTHER OBSERVE THAT CO - ORDINATE BE N CH MUMBAI IN THE CASE OF M/S.NAYAN BUILDERS & DEVELOPERS PVT. LTD. V/S ITO, MUMBAI IN ITA NO.2370/MUM/2009 DATED 18/03/2011 CAME ACROSS THE SIMILAR ISSUE WHERE IN QUANTUM APPEAL ADDITION WAS CONFIRMED BY THE TRIBUNAL AND ASSESSEE APPEAL WAS ADMITTED BY THE HONBLE HIGH COURT FORMULATING SUBSTANTIAL QUESTION OF LAW. IN THIS CASE CO - ORDINATE BENCH DELETED THE PENALTY BY OBSERVING AS FOLLOWS: 2. SHORN OFF UNNECESSA RY DETAILS IT IS AN ADMITTED POSITION FROM BOTH THE SIDES THAT THE PENALTY HAS BEEN FINALLY UPHELD QUA THE ADDITION OF RS. 1,04,76,050 TOWARDS INCOME FROM SPECTRUM CORPORATE SERVICES LTD. ASSESSED IN THIS YEAR, DISALLOWANCE OF BROKERAGE OF RS. 10,79,221 AN D DISALLOWANCE OF LEGAL FEES OF RS.2,00,000. IT IS SEEN THAT THE TRIBUNAL HAS UPHELD THESE ADDITIONS IN QUANTUM PROCEEDINGS FOR WHICH THE PENALTY HAS BEEN HELD TO BE IMPOSABLE. THE LEARNED A.R. HAS PLACED ON RECORD THE JUDGEMENT OF THE HON'BLE JURISDICTION AL HIGH COURT IN INCOME TAX APPEAL NO.2368 OF 2009 ADMITTING INTER ALIA THE FOLLOWING TWO QUESTIONS: - ' WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE TRIBUNAL WAS RIGHT IN HOLDING THAT THE DEPOSIT RS. 1,04,76,0507 - RECEIVED FRO M SPECTRUM IS EXIGIBLE TO TAX IN THE ASSESSMENT YEAR 1997 - 98? WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE TRIBUNAL WAS CORRECT IN CONFIRMING THE DISALLOWANCE OF BROKERAGE RS.10,79,221/ - AND LEGAL FEES RS.2,00, 000/ - ?' 3. IT IS, THEREFORE, ABUNDANTLY CLEAR THAT THE ADDITIONS IN RESPECT OF WHICH PENALTY WAS CONFIRMED HAVE BEEN ACCEPTED BY THE HON'BLE BOMBAY HIGH COURT LEADING TO SUBSTANTIAL QUESTION OF LAW. WHEN THE HIGH COURT ADMITS SUBSTANTIAL QUESTION OF LAW ON AN ADDITION, IT BECOMES APPARENT THAT THE ADDITION IS CERTAINLY DEBATABLE. IN SUCH CIRCUMSTANCES PENALTY CANNOT BE LEVIED U/S 271(1) (C) AS HAS BEEN HELD IN SEVERAL CASES INCLUDING RUPAM MERCANTILE VS. DCIT [(2004) 91 ITD 237 (AHD) (TM)] AND SMT.RAMILA RATILAL SHAH VS. ACIT [(1998) 60 777 (AHD) 171]. THE ADMISSION OF SUBSTANTIAL QUESTION OF LAW BY THE HON'BLE HIGH COURT LENDS CREDENCE TO THE B ONA FIDES OF THE ASSESSEE IN CLAIMING DEDUCTION. ONCE IT TURNS OUT THAT THE CLAIM OF THE ASSESSEE COULD HAVE BEEN CONSIDERED FOR DEDUCTION AS PER A PERSON PROPERLY INSTRUCTED IN LAW AND IS NOT COMPLETELY DEBARRED AT ALL, THE MERE FACT OF CONFIRMATION OF DI SALLOWANCE WOULD NOT PER SE LEAD TO THE IMPOSITION OF PENALTY. SINCE THE ADDITIONS, IN RESPECT OF WHICH PENALTY HAS BEEN UPHELD IN THE PRESENT PROCEEDINGS, HAVE BEEN HELD BY THE HON'BLE HIGH COURT TO BE INVOLVING A SUBSTANTIAL QUESTION OF LAW, IN OUR CONSI DERED OPINION, THE PENALTY IS NOT EXIGIBLE UNDER THIS SECTION. WE, THEREFORE, ORDER FOR THE DELETION OF PENALTY. ITA NO S.1012 /AHD/2014 ASSESSMENT YEAR : 2004 - 05 6 7.2 THE ABOVE ORDER OF CO - ORDINATE BENCH MUMBAI, HAS BEEN UPHELD BY HONBLE HIGH COURT MUMBAI IN 2014. WE FURTHER OBSERVE THAT HONBLE HIGH C OURT , MUMBAI IN THE CASE OF CIT V/S M/S.ADVAITA ESTATE DEVELOPMENT PVT. LTD.(SUPRA) ADJUDICATED THE SIMILAR ISSUE OF PENALTY U/S.271(1)(C) OF THE ACT WHEREIN SUBSTANTIAL QUESTION OF LAW HAS BEEN FORMULATED AND QUANTUM APPEAL ADMITTED BY THE HONBLE HIGH CO URT . I N THIS CASE ALSO REVENUE APPEAL ON PENALTY U/S.271(1)(C) OF THE ACT WAS DISMISSED BY OBSERVING AS FOLLOWS: 2. THE REVENUE URGES THE FOLLOWING QUESTION OF LAW FOR OUR CONSIDERATION: - 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE TRIBUNAL WAS JUSTIFIED IN DELETING THE PENALTY IMPOSED UNDER SECTION 271(1)(C) . 3. THE IMPUGNED ORDER OF THE TRIBUNAL ALLOWED THE RESPONDENT - ASSESSEE'S APPEAL AND DELETED THE PENALTY IMPOSED. THI S ON THE GROUND THAT THE ORDER OF THE TRIBUNAL IN THE QUANTUM PROCEEDING WHICH WAS AGAINST RESPONDENT - ASSESSEE HAD BEEN CHALLENGED IN APPEAL BEFORE THIS COURT AND THE APPEAL HAS BEEN ADMITTED ON 12 TH MARCH, 2013 BEING INCOME TAX APPEAL NO. 2582 OF 2011 ON THE FOLLOWING SUBSTANTIAL QUESTIONS OF LAW , '(A) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF CASE AND IN LAW, IS THE ORDER OF THE TRIBUNAL PERVERSE INASMUCH AS IT IGNORED THE BASIC DOCUMENTS LI KE STATEMENT OF CONFIRMATION OF ACCOUNT, BANK STATEMENT SHOWING RECEIPT OF MONEY FROM AND PAYMENT OF MONEY TO M/S.KUBER DEVELOPERS CORPORATION AND CONFIRMATION FROM THE SAID PARTY OF HAVING GIVEN AND RECEIPT OF THE ADVANCE WHICH WERE PRODUCED BEFORE THE CI T(A) AND THE TRIBUNAL WHILE CONFIRMING THE ADDITION OF RS.2.73 CRORES UNDER SECTION 68 OF THE ACT IN THE HANDS OF THE APPELLANT ?' (B) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, WAS THE TRIBUNAL JUSTIFIED IN NOT ADMITTING THE AD DITIONAL EVIDENCE OF LOAN CREDITOR. MR. MAHENDRA MANSINGH ARORA IN THE FORM OF RETURN OF INCOME, BALANCE SHEET AND PROFIT & LOSS ACCOUNT FOR ASSESSMENT YEAR 2006 - 07 FILED BEFORE THE I.T. DEPARTMENT ON THE GROUND THAT THE SAME WERE NOT FILED BEFORE THE RESP ONDENT NO.2 EARLIER WITHOUT APPRECIATING THAT THE APPELLANT CANNOT BE PENALIZED FOR THE DEFAULT OF LOAN CREDITOR ?' 4. IN THE ABOVE VIEW, THE IMPUGNED ORDER FOLLOWED ITS DECISION IN NAYAN BUIL DERS AND DEVELOPERS PVT.LTD. VS. THE INCOME TAX OFFICER IN INCO ME TAX APPEAL NO. 2379/MUM/2009 RENDERED ON 18 TH MARCH, 2011 AND THE DECISION OF THE DELHI HIGH COURT IN CIT VS LIQUID INVESTMENT AND TRADING CO (ITA NO.240/2009) RENDERED ON 5 TH OCTOBER, 2010 TO HOLD THAT WHEN AN APPEAL HAS BEEN ADMITTED IN QUANTUM PROCEEDINGS BY THE HIGH COURT, THEN THAT ITSELF IS AN EVIDENCE OF THE ISSUE BEING DEBATABLE, NOT WARRANTING ANY PENALTY. ITA NO S.1012 /AHD/2014 ASSESSMENT YEAR : 2004 - 05 7 5. THE REVENUE HAD FILED AN APPEAL FROM THE ORDER OF THE TRIBU NAL IN NAYAN BUILDERS AND DEVELOPERS PVT. LTD. (SUPRA) DELETING THE PENALTY. THIS APPEAL BEING CIT VS. NAYAN BUILDERS AND DEVELOPERS [(2014) 368 ITR 722] WAS NOT ENTERTAINED BY THIS COURT. IT UPHELD THE VIEW OF THE TRIBUNAL THAT THE IMPOSITION OF PENALTY W AS NOT JUSTIFIED AS ADMISSION OF APPEAL IN QUANTUM PROCEEDING ON THIS ISSUE AS SUBSTANTIAL QUESTION OF LAW WAS PROOF ENOUGH OF THE ISSUE BEING DEBATABLE. THE AFORESAID DECISION IN NAYAN BUILDERS AND DEVELOPERS PVT.LTD (SUPRA) WAS ALSO FOLLOWED BY THIS COUR T IN CIT - 8 VS. ADITYA BIRLA POWER CO. LTD. IN INCOME TAX APPEAL NO. 851 OF 2014 RENDERED ON 2 ND DECEMBER, 2015. 6. HOWEVER, MR. TEJVEER SINGH, LEARNED COUNSEL APPEARING FOR THE APPELLANT - REVENUE SEEKS TO DISTINGUISH THE DECISION OF THIS COURT IN NAYAN BUI LDERS AND DEVELOPERS PVT. LTD. (SUPRA) ON THE GROUND THAT THIS COURT HAD AFTER RECORDING THE FACT THAT WHERE APPEALS FROM ORDERS IN QUANTUM PROCEEDINGS OF THIS COURT HAVE BEEN ADMITTED AS GIVING RISE TO SUBSTANTIAL QUESTION OF LAW THEN THAT ITSELF DISCLOSE S THAT THE ISSUE IS DEBATABLE. HOWEVER, MR. SINGH POINTS OUT THAT IT ALSO FURTHER RECORDS 'IN OUR VIEW THERE WAS NO CASE MADE OUT FOR IMPOSITION OF PENALTY AND THE SAME WAS RIGHTLY SET ASIDE.'. ON THE BASIS OF THE ABOVE OBSERVATION, IT IS CONTENTION OF M R. TEJVEER SINGH THAT THE APPEAL FROM PENALTY PROCEEDING WAS NOT ADMITTED BY THIS COURT AS ON MERITS NO CASE FOR IMPOSITION OF PENALTY WAS MADE OUT. 7. MR. DALAI, THE LEARNED COUNSEL FOR THE RESPONDENT - ASSESSEE INVITED OUR ATTENTION TO THE ORDER OF THE TR IBUNAL DATED 18 TH MARCH, 2011 IN THE CASE OF NAYAN BUILDERS AND DEVELOPERS PVT. LTD (SUPRA). ON PERUSAL OF THE TRIBUNAL ORDER DATED 18 TH MARCH, 2011 WE NOTE THAT THE TRIBUNAL IN NAYAN BUILDERS AND DEVELOPERS PVT. LTD (SUPRA) HAD DELETED THE PENALTY ONLY ON THE GROUND THAT AS SUBSTANTIAL QUESTION OF LAW HAD BEEN ADMITTED BY THIS COURT IN QUANTUM PROCEEDINGS THE ISSUE IS DEBATABLE. IT WAS ON THE BASIS OF THE AFORESAID REASONING OF THE TRIBUNAL IN NAYAN BUILDERS AND DEVELOPERS PVT.LTD. (SUPRA), THAT THIS COURT HELD THAT NO PENALTY IS IMPOSABLE. THUS THE DISTINCTION SOUGHT TO BE MADE BY MR. TEJVEER SINGH DOES NOT ASSIST THE REVENUE, AS IT DOES NOT EXIST. 8. IN VIEW OF THE DECISION TAKEN BY THIS COURT IN NAYAN BUILDERS AND DEVELOPERS PVT. LTD (SUPRA) AS WELL AS IN ADITYA BIRLA POWER CO. LTD. (SUPRA) THE PROPOSED QUESTION DOES NOT GIVE RISE TO ANY SUBSTANTIAL QUESTION OF LAW. THUS NOT ENTERTAINED. 8. RESPECTFULLY FOLLOWING THE JUDGMENT OF HONBLE HIGH COURT AND DECISION OF CO - ORDINATE BENCH MUMBAI AND IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE WHEREIN ASSESSEE S APPEAL ON QUANTUM ADDITION AGAINST THE TRIBUNAL ORDER HAS BEEN ADMITTED BY HONBLE JURISDICTIONAL HIGH COURT FORMULATING SUBSTANTIA L QUESTION OF LAW, WE ARE OF THE VIEW THAT SINCE ADDITIONS ARE OF DEBATABLE IN NATURE ASSESSEE SHOULD NOT BE VISITED WITH PENALTY U/S.271(1)(C) OF THE ACT. ITA NO S.1012 /AHD/2014 ASSESSMENT YEAR : 2004 - 05 8 9. IN THE RESULT PENALTY OF RS.4,28,866/ - U/S.271(1)(C) OF THE ACT IS DELETED. WE SET ASIDE THE OR DER OF LD.CIT(A) AND ALLOW THE ASSESSEE APPEAL. ORDER PRONOUNCED IN THE COURT ON 22 / 05 / 201 7 AT AHMEDABAD. SD/ - ( RAJPAL YADAV ) JUDICIAL MEMBER SD/ - ( MANISH BOARD ) ACCOUNTANT MEMBER AHMEDABAD; DATED 22 / 05 / 201 7 MANISH / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A), AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE .