The ACIT- 2(1), Bhopal V. M/s. Satish Kumar Raizada, Bhopal

ITA 111/IND/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2981 (ITAT-INDORE)
• Duration Of Justice: 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-05-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 1995-1996
• Appeal Filed On: 25-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: A K RINWA

Judgement Text

1 INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO. 111/IND/2013 A.Y. 1995-96 ASSTT. COMMISSIONER OF INCOME TAX 2(1) BHOPAL :: APPELLANT VS M/S SATISH KUMAR RAIZADA & COMPANY BHOPAL PAN AAMFS5625B :: RESPONDENT APPELLANT BY SHRI R.A. VERMA RESPONDENT BY SHRI A.K. RINWA DATE OF HEARING 20.05.2013 DATE OF PRONOUNCEMENT 20.05.2013 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THE REVENUE IS AGGRIEVED BY THE ORDER DATED 13 TH DECEMBER, 2012 OF THE LEARNED FIRST APPELLATE AUTHO RITY, BHOPAL, WHEREIN PENALTY OF RS. 3 LACS IMPOSED U/S 271(1) O F THE ACT WAS DELETED. DURING HEARING OF THIS APPEAL, SHRI R.A. V ERMA, LEARNED 2 SENIOR DR DEFENDED THE IMPOSITION OF PENALTY WHEREA S THE LEARNED COUNSEL FOR THE ASSESSEE, SHRI A.K. RINWA, DEFENDED THE IMPUGNED ORDER BY SUBMITTING THAT THE DEPARTMENTAL APPEAL ON QUANTUM ADDITION WAS DISMISSED BY THE TRIBUNAL VIDE ORDER DATED 19.6.2009 AND AS SUCH NO PENALTY WAS LEVIABLE . 2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. BEFORE COMING TO ANY CONCLUSION, WE ARE REPRODUCING HEREUNDER THE RELEVANT PORTION O F THE IMPUGNED ORDER :- 6. IN APPELLATE PROCEEDINGS, THE AR SUBMITTED THA T THE LD. A.O. HAD NOT PROPERLY APPRECIATED THE FACTS OF THE CASE WHILE PASSING PENALTY ORDER U/S 271(1). HE POINTED OUT THAT THE LD. CIT(A) IN HIS ORDER DATED 06.02.2009, THOUGH HAD CONFIRMED APPLICATION OF NET PROFIT @ 8% OF THE TURNOVER DECLARED BY THE APPELLA NT BUT ALSO DIRECTED THE A.O. TO ALLOW REMUNERATION AND INTEREST TO THE PARTNERS. THEREAFTER, THE A.O. VID E ORDER DATED 16.03.2009 HAD GIVEN THE APPEAL EFFECT TO THI S ORDER OF LD. CIT(A) AND INCOME WAS DETERMINED AT RS . 4,12,100/- I.E. THE TOTAL INCOME AS SHOWN BY THE APPELLANT IN THE ORIGINAL RETURN OF INCOME. IT WAS ALSO BROUGHT TO MY NOTICE THAT THE DEPARTMENT HAD FURNIS HED AN APPEAL AGAINST THE ORDER OF LD. CIT(A), BHOPAL D ATED 06.02.2009 BUT THE HONBLE ITAT DISMISSED THE DEPARTMENTAL APPEAL IN ITA NO. 205/IND/2009 ORDER DATED 119.06.2009. HE ALSO FURNISHED PHOTOCOPY OF THE ORDERS INCLUDING ORDER GIVING EFFECT TO THE ORDER O F CIT(A) BY THE A.O. IT WAS CONTENDED THAT FINALLY THE INCOM E ASSESSED IN THE CASE OF APPELLANT WAS AT THE SAME FIGURE OF INCOME AS WAS DECLARED IN THE RETURN OF I NCOME AND HENCE THERE WAS NO QUESTION OF LEVYING PENALTY U/S 271(1)(C). IT WAS ARGUED THAT PENALTY LEVIED DESER VES O 3 BE DELETED. THUS, IT WAS PRAYED THAT THE ORDER LEV YING PENALTY U/S 271(1)(C) OF RS. 3,00,000/- FOR A.Y. 19 95-96 PASSED BY THE A.O. MAY PLEASE BE CANCELLED. 7. I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF T HE APPELLANT AND FACTS OF THE CASE. AS SUBMITTED BY TH E AR, IT IS NOTICED FROM THE ORDER DATED 16.03.2009 OF TH E A.O. GIVING EFFECT TO THE APPELLATE ORDER OF THE CIT(A)- I, BHOPAL, IN APPEAL NO. CIT(A)-I/BPL/IT-631/2007-08 ORDER DATED 06.02.2009 THAT CONSEQUENTLY THE TOTAL INCOME OF THE APPELLANT WAS ASSESSED AT THE RETURNE D INCOME OF RS. 4,12,100/-. IT MAY ALSO BE NOTED THA T THE DEPARTMENTAL APPEAL FURNISHED AGAINST THE ORDER OF LD. CIT(A) DATED 06.02.2009 HAS ALSO BEEN DISMISSED BY THE HONBLE ITAT IN ITA NO. 305/IND/2009 FOR A.Y. 1995-96 ORDER DATED 19.06.2009. THUS, IN THIS CASE , THERE IS NO QUESTION OF CONCEALING PARTICULARS OF I NCOME OR FURNISHING OF ACCURATE PARTICULARS OF INCOME. HE NCE, IT WAS NOT A FIT CASE FOR LEVYING PENALTY U/S 271(1)(C ). WE FIND THAT AGAINST THE RETURNED INCOME OF RS.4,12 ,100/- BY THE ASSESSEE, THE LD. ASSESSING OFFICER FINALLY ASSESSE D THE TOTAL INCOME AT RS.10,46,726/-. ON APPEAL, THE LD. CIT(A) DELETED THE ADDITIONS AND ACCEPTED THE RETURNED INCOME AT RS.4, 12,100/-, AGAINST WHICH, THE REVENUE FILED APPEAL BEFORE THE TRIBUNAL. THE TRIBUNAL, VIDE ORDER DATED 19.6.2009 (ITA NO.305/IN D/2009), DISMISSED THE APPEAL OF THE REVENUE AS THE TAX EFFE CT WAS BELOW PRESCRIBED MONETARY LIMIT. THUS, THERE WAS NO CONCE ALED INCOME AS THE ADDITIONS WERE DELETED BY THE LD. CIT(A). IN VIEW OF THESE UNCONTROVERTED FACTS, WE ARE OF THE VIEW THAT WHERE THE ADDITIONS, MADE IN THE ASSESSMENT ORDER, ON THE BASIS OF WHICH PENALTY FOR 4 CONCEALMENT WAS LEVIED, ARE DELETED, THERE REMAINS NO BASIS AT ALL FOR LEVYING THE PENALTY FOR CONCEALMENT. OUR VIEW I S SUPPORTED BY THE DECISIONS OF THE HONBLE APEX COURT IN K.C. BUI LDERS VS. ACIT; 265 ITR 562 (SC) AND CIT VS. S.P. VIZ CONSTRUCTION COMPANY; 176 ITR 47 (PAT). WE, THEREFORE, FIND NO INFIRMITY IN THE CONCLUSION DRAWN BY THE LEARNED CIT(A) AND CONFIRM THE SAME. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMIS SED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 20.5.2013. SD SD (R.C.SHARMA) (JOGINDER SINGH ) ACCOUNTANT MEMBER JUDICIAL ME MBER DATED: 20.5.2013 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE DN/-2020