DR. SMT. KIRTI ANANT NAGVEKAR, Sindhudurg V. ITO,Wd.-2(4), Kudal

ITA 1194/PUN/2008

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7479 (ITAT-PUNE)
• Duration Of Justice: 10 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 10-03-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 29-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHAY DAMLE
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI I C SUDHIR, JUDICIAL MEMBER AND SHRI G.S. PANNU, ACCOUNTANT MEMBER I.T.A. NO. 1194 & 1195/PN/08 (ASSTT. YEARS: 2004-05 & 2005-06) DR (SMT) KIRTI ANANT NAGVEKAR, .. APPE LLANT DR NAGVEKAR HOSPITAL & NURSING HOME, OPP. VIDHYAMANDIRCOLLEGE ROAD, KANKAVALI,DIST. SINGHUDURG PAN AAPPN 9640Q VS. INCOME-TAX OFFICER, .. RESPONDENT WARD 2(4) KUDAL PAN AAACT 3904F APPELLANT BY: SHRI M.K. KULKARNI RESPONDENT BY: SHRI ABHAY DAMLE ORDER PER G.S. PANNU, AM THESE TWO CAPTIONED APPEALS BY THE ASSESSEE ARE DI RECTED AGAINST A COMMON ORDER OF THE COMMISSIONER OF INCOME-TAX (A PPEALS) KOLHAPUR DATED 12.02.2008 WHICH, IN TURN, HAVE ARISEN FROM P ENALTY ORDERS PASSED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) OF THE INCOME-TAX ACT, (IN SHORT THE ACT) PERTAINING TO THE ASSESSMENT YEAR 2004-05 AND 2005-06. 2. THE ONLY ISSUE RAISED IN THE APPEALS BEFORE US I S THAT THE COMMISSIONER OF INCOME-TAX (APPEALS) WAS NOT JUSTIF IED IN CONFIRMING THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT FOR THE ASSESSMENT YEARS 2004-05 AND 2005-06. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE IS A MEDICAL PROFESSIONAL M.B.B.S., D.G.O.,D.A PRACTICIN G AS ANESTHETIST AND HELPING HER HUSBAND, DR ANANT NAGVEKAR, A MEDICAL P RACTITIONER IN ITA NO 1194 & 1195/PN/08 DR (MRS) KIRTI A NAGVEKAR, SINDHUDURG 2 NAGVEKAR HOSPITAL. DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR THE ASSESSMENT YEAR 2004-05, THE ASSESSING OFFICER HAD MADE ADDITIONS ON ACCOUNT OF SUPPRESSED PROFESSIONAL RECEIPTS, PROFES SIONAL RECEIPTS INVESTED ON GOAT FARMING AND AMOUNT INCURRED ON EDU CATIONAL EXPENSES. SIMILARLY, FOR THE ASSESSMENT YEAR 2005-06, THE ASS ESSING OFFICER HAD MADE ADDITION ON ACCOUNT OF DECLARATION OF EXCESS S TOCK OF RS 2,17,000/- MADE BY THE ASSESSEE. SUBSEQUENTLY, THE ASSESSING O FFICER LEVIED PENALTY UNDER SECTION 271(1)(C) OF THE ACT FOR BOTH THE YEARS UNDER CONSIDERATION HOLDING THAT THE ASSESSEE HAS NOT PRE FERRED ANY APPEAL AGAINST THE ASSESSMENT ORDERS AND THAT THE ASSESSEE HAS CONCEALED PARTICULARS OF HER INCOME FROM PROFESSION, GOAT FAR MING BUSINESS, INADMISSIBLE CLAIM OF DEPRECIATION ON SHED AND EXPE NDITURE INCURRED ON EDUCATION EXPENSES OF HER SON. IN APPEAL, THE COMMI SSIONER OF INCOME- TAX (APPEALS) PARTLY CONFIRMED THE PENALTY ORDERS P ASSED BY THE ASSESSING OFFICER IN RELATION TO EDUCATIONAL EXPENSES AND INC OME ON ACCOUNT OF UNEXPLAINED STOCK. BEING AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFUL LY. WE HAVE CAREFULLY PERUSED THE ORDERS PASSED BY THE ASSESSIN G OFFICER UNDER SECTION 271(1)(C) OF THE ACT. IT IS ABUNDANTLY CLEA R THAT THE ONLY REASON ADVANCED TO SUSTAIN THE PENALTY IS THE FACT THAT TH E ASSESSEE HAS NOT PREFERRED ANY APPEAL AGAINST THE ASSESSMENT ORDERS. ADMITTEDLY, NO CASE HAS BEEN MADE OUT BY THE ASSESSING OFFICER AS TO HO W THE ADDITIONS IN QUESTION CONSTITUTE CONCEALMENT OF INCOME WITHIN TH E MEANING OF SECTION 271(1)(C) OF THE ACT. FOR THE SAID REASON, WE FIND NO JUSTIFICATION TO UPHOLD THE LEVY OF PENALTY OR THE ADDITIONS STATED IN THE GROUNDS OF APPEAL FOR ITA NO 1194 & 1195/PN/08 DR (MRS) KIRTI A NAGVEKAR, SINDHUDURG 3 BOTH THE YEARS UNDER CONSIDERATION. WE ACCORDINGLY SET ASIDE THE ORDERS OF THE COMMISSIONER OF INCOME-TAX (APPEALS) AND DIRECT THE ASSESSING OFFICER TO DELETE THE PENALTIES LEVIED UNDER SECTIO N 271(1)(C) OF THE ACT QUA THE ADDITIONS STATED IN THE GROUNDS OF APPEAL FOR B OTH THE ASSESSMENT YEARS 2004-05 AND 2005-06. 5. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED. DECISION PRONOUNCED IN THE OPEN COURT ON THIS 16 TH DAY OF MARCH, 2011. SD/- SD/- (I.C. SUDHIR) JUDICIAL MEMBER (G.S. PANNU) ACCOUNTANT MEMBER PUNE: DATED: 16 TH MARCH, 2011 B COPY OF THE ORDER IS FORWARDED TO : 1. DR (MRS) KIRTI A NAGVEKAR, SINDHUDURG 2. ITO WD 2(4) KUDAL 3. THE CIT(A), KOLHAPUR 4. THE CIT-I, KOLHAPUR 5. THE D.R, A BENCH, PUNE TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, PUNE BENCHES, PUNE