The ACIT(OSD)Circle-9, Ahmedabad V. Shri Vineet C.Deorai, Ahmedabad

ITA 1269/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94844 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 7 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-12-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 07-12-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 29-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALBINUS TIRKEY
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH (BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER & SHRI S.S. GODARA, JUDICIAL MEMBER) ITA NO: 1269/AHD/2011 (ASSESSMENT YEAR: 2005-06) THE A.C.I.T. (OSD) CIRCLE- 9, AHMEDABAD V/S SHRI VINEET C. DEORARI. PROP. QUALITY CONSTRUCTION, 28 & 29A, CIRCLE-B, 3 RD FLOOR, PAKWAN-II, BODAKDEV, AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AAPPT0319Q APPELLANT BY : SHRI ALBINUS TIRKEY, SR. D .R. RESPONDENT BY : NONE ( )/ ORDER DATE OF HEARING : 07-12-2015 DATE OF PRONOUNCEMENT : 07-12-2015 PER ANIL CHATURVEDI, ACCOUNTANT MEMBER 1. THIS APPEAL FILED BY THE REVENUE IS AGAINST THE ORD ER OF CIT(A)-IV, AHMEDABAD DATED 12.10.2006 FOR A.Y. 2005-06. ITA NO . 126 9/AHD/2011 . A.Y. 2005-0 6 2 2. ON THE DATE OF HEARING NONE APPEARED ON BEHALF OF T HE ASSESSEE THOUGH THE NOTICE FIXING THE DATE OF HEARING WAS SENT TO THE A SSESSEE THROUGH REGISTERED POST BUT THE SAME WAS RETURNED UNDELIVERED BY THE P OSTAL AUTHORITIES WITH THE REMARK LEFT. WE FURTHER FIND THAT ASSESSEE HAS NO T INTIMATED THE CHANGED ADDRESS. WE THEREFORE PROCEED TO DISPOSE OF THE APP EAL EX-PARTE QUA THE ASSESSEE ON THE BASIS OF MATERIAL ON RECORD. 3. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 4. ASSESSEE IS AN INDIVIDUAL STATED TO BE ENGAGED IN T HE BUSINESS OF CONSTRUCTION CONTRACT. ASSESSEE FILED HIS RETURN OF INCOME FOR A.Y. 2005-06 ON 20.10.2005 DECLARING TOTAL INCOME AT RS. 9,45,791/- . THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER THE ASSESSMENT WAS FRAM ED UNDER SECTION 143(3) VIDE ORDER DATED 28.11.2007 AND THE TOTAL INCOME WA S DETERMINED AT RS. 36,49,780/- INTERALIA BY MAKING ADDITION OF RS. 22, 17,494/- BY ESTIMATING THE NET PROFIT. ON THE AFORESAID ADDITION, A.O VIDE OR DER DATED 30 TH MARCH, 2010 CONCLUDED THAT ASSESSEE HAS FURNISHED INACCURATE PA RTICULARS OF INCOME AND CONCEALED INCOME AND THEREFORE PROVISIONS OF EXPLAN ATION 1 TO SECTION 271(1)(C) OF THE ACT WERE ATTRACTED AND ACCORDINGLY LEVIED PENALTY OF RS. 7,46,408/- U/S. 271(1)(C) OF THE ACT. AGGRIEVED BY THE ORDER OF A.O., ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) WHO V IDE ORDER DATED 10.03.2011 DELETED THE PENALTY BY HOLDING AS UNDER: - 3. IT IS SEEN THAT THE FACTS OF THE CASE THIS YEAR ARE SAME AS WERE IN AY 2004-05 WHERE PENALTY ON SIMILAR ADDITION ON ACCOUNT OF ESTIMATIO N OF NET PROFIT DELETED BY THIS OFFICE VIDE ORDER DATED 30.7.2009 UPHELD BY HON'BLE IT AT BENCH D AHMEDABAD VIDE ORDER PASSED ON 29.10.2010 IN THE CASE OF THE APPELLANT I N AY 2004-05 IN IT A NO.2797/AND/2009 (PARA 18 TO PARA 26 OF HON'BLE IT AT ORDER MAY KINDLY BE REFERRED TO ITA NO . 126 9/AHD/2011 . A.Y. 2005-0 6 3 IN THIS REGARD). RELYING ON THE AFOREMENTIONED ORDE R OF HON'BLE IT AT IN THE APPELLANT'S OWN CASE IN AY 2004-05 THROUGH WHICH PENALTY HAS BE EN DELETED THE AO IS DIRECTED TO DELETE THE PENALTY IMPOSED IN AY 2005-06 ALSO AS FA CTS ARE SAME THIS YEAR. 5. AGGRIEVED BY THE AFORESAID ORDER OF LD. CIT(A), RE VENUE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING EFFECTIVE GR OUND:- 1. THE LD. CIT(A)-XV, AHMEDABAD HAS ERRED IN LAW AND O N FACTS IN DELETING THE PENALTY OF RS. 7,46,408/- LEVIED U/S. 271(1)(C) OF THE ACT. 6. BEFORE US, LD. D.R. SUPPORTED THE ORDER OF A.O. 7. WE HAVE HEARD THE LD. D.R. AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESPECT TO LEVY OF PENA LTY U/S. 271(1)(C) WHICH WAS LEVIED BY THE A.O ON THE NET PROFIT ESTIMATED B Y HIM AT 5% INSTEAD OF NET PROFIT OF 1.45% AS DECLARED BY THE ASSESSEE. WE FIND THAT LD. CIT(A) WHILE DELETING THE PENALTY HAS NOTED THAT SIMILAR P ENALTY LEVIED BY THE A.O FOR A.Y 2004-05 WAS DELETED BY THE CO-ORDINATE BENC H OF TRIBUNAL IN ITA NO. 2797/AHD/2009 ORDER DATED 29.10.2010 AND SH E AFTER RELYING ON THE AFORESAID ORDER OF TRIBUNAL, DELETED THE PENALT Y. BEFORE US, REVENUE HAS NOT BROUGHT ANY MATERIAL ON RECORD TO DEMONSTRA TE THAT THE ORDER OF TRIBUNAL FOR A.Y. 2004-05 WHICH WAS RELIED UPON BY LD. CIT(A) FOR DELETING PENALTY HAS BEEN SET ASIDE BY HIGH COURT. FURTHER, REVENUE HAS ALSO NOT CONTROVERTED THE FINDINGS OF LD. CIT(A). I N VIEW OF THE AFORESAID FACTS, WE FIND NO REASON TO INTERFERE WITH THE ORDE R OF LD. CIT(A) AND THUS THE GROUND OF REVENUE IS DISMISSED. ITA NO . 126 9/AHD/2011 . A.Y. 2005-0 6 4 8. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 07- 12 - 2015. SD/- SD/- (S.S. GODARA) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,A HMEDABAD