The ACIT,(OSD)Circle-9, Ahmedabad V. M/s. Yogi Construction, Ahmedabad

ITA 1270/AHD/2011

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6880 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 28-11-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 29-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Assessee Lawyers: ABHIMANYU SINGH BHATI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI N.S. SAIN I , ACCOUNTANT MEMBER ITA NO . 1270 / AHD/20 1 1 A. Y. 200 5 - 0 6 ACIT (OSD) CIRCLE - 9, AHMEDABAD. VS M/S. YOGI CONSTRUCTION, 106/B, SAMAST B RAHAMKSHATRIYA SOCIETY, BHATTA ROAD, PALDI, AHMEDABAD PAN: AAAFY3044N (APPELLANT) (RESPONDENT) REVENUE BY : SHRI DINESH SINGH , SR.D.R. , ASSESSEE(S) BY : SHRI ABHIMANYU SINGH BHATI , A.R. / DATE OF HEARING : 28 / 1 1 /201 4 / DATE OF PRONOUNCEMENT: 23 / 1 2 /201 4 / O R D E R PER BENCH THIS IS AN A PPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) - XV , AHMEDABAD DATED 9 TH MARCH, 2011 . 2. THE SOLE GROUND OF APPEAL TAKEN BY THE REVENUE IS THAT THE CIT(A) ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY OF RS.52,69,587/ - LEVIED U/S.271(1)(C) OF THE ACT . 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER OBSERVED THAT THE ASS ESSEE HAD DEDUCTED TDS FROM SUB - CONTRACTORS AT RS.1,93,65,695/ - U/S.194C OF THE ACT BUT THE SAME WAS DEPOSITED TOGETHER WITH INTEREST WITH THE GOVERNMENT AFTER THE END OF THE FINANCIAL YEAR IN WHICH THE SAME WAS DEDUCTED. THEREFORE, THE ASSESSING OFFICER B Y ITA NO. 1270 /AHD/201 1 ACIT (OSD) C IRCLE, 9 AHMEDABAD VS. M/S. YOGI CONSTRUCTION . FOR A.Y. 200 5 - 0 6 - 2 - INVOKING THE PROVISIONS OF SECTION 40 A (IA) OF THE INCOME TAX ACT DISALLOWED DEDUCTION FOR THE ENTIRE AMOUNT OF RS.1,93,65,695/ - . 4. ON APPEAL FILED BY THE A SSESSEE AGAINST THE ORDER OF ASSESSING OFFICER , THE CIT(A) CONFIRMED THE ADDITION OF RS.1,44 ,00,7 30/ - . THEREAFTER, THE AO LEVIED PENALTY U/S.271(1)(C) OF THE ACT OF RS.52,69,587/ - BEING 100% OF THE TAX SOUGHT TO BE EVADED ON ACCOUNT OF FURNISHING OF INACCURATE PARTICULARS OF INCOME AND CONCEALMENT OF INCOME. 5. ON APPEAL, THE CIT(A) DELETED THE PENAL TY BY OBSERVING THAT IN THE AUDIT REPORT IT HAS BEEN MENTIONED ABOUT THE LATE DEPOSIT O F TDS AND AS SUCH THERE IS NO CASE OF FURNISHING OF INACCURATE PARTICULARS OF INCOME OR CONCEALMENT OF INCOME. 6. BEING AGGRIEVED THE REVENUE IS IN APPEAL BEFORE US. 7 . THE DR SUPPORTED THE ORDER OF THE ASSESSING OFFICER. 8 . THE AR OF THE A SSESSEE FILED BEFORE US A COPY OF THE ORDER OF THIS TRIBUNAL IN THE CASE OF THE ASSESSEE ITSELF FOR ASSESSMENT YEAR 2005 - 06 PASSED ON 11.05.2011 IN ITA NO.429/AHD/2009 AND SUBMITTED THAT THE ADDITION SUSTAINED BY THE CIT(A) OF RS.1,44,00,730/ - WAS DELETED BY THE TRIBUNAL. THEREFORE, AS THE BASIS OF LEVY OF PENALTY DOES NOT SURVIVE AFTER THE PASSING OF THE ORDER OF THE TRIBUNAL, THEREFORE, THE PENALTY ALSO DOES NOT SURVIVE AND REQUIRE S TO BE DELETED. 9 . WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AVAILABLE ON RECORD. IN THE INSTANT CASE, THE ASSESSING OFFICER DISALLOWED DEDUCTION OF PAYMENT TO CONTRACTORS AMOUNTING TO RS. ITA NO. 1270 /AHD/201 1 ACIT (OSD) C IRCLE, 9 AHMEDABAD VS. M/S. YOGI CONSTRUCTION . FOR A.Y. 200 5 - 0 6 - 3 - 1,93,65,695/ - ON THE GR OUND THAT THE TDS DEDUCTED FROM SUCH PAYMENT TO CONTRACTORS WAS DEPOSITED WITH INTEREST AFTER THE END OF THE RELEVANT FINANCIAL YEAR. ON APPEAL THE CIT(A) CONFIRMED THE ADDITION OF RS.1,44,00,730/ - . THEREAFTER, THE ASSESSING OFFICER LEVIED PENALTY ON THE A MOUNT OF ADDITION SUSTAINED BY THE CIT(A) ON THE GROUND OF FURNISHING OF INACCURATE PARTICULARS OF INCOME AND CONCEALMENT OF INCOME WHICH WAS WORKED OUT AS 100% OF TAX SOUGHT TO BE EVADED AT RS. 52,69,587/ - . THIS WAS CONFIRMED BY THE CIT(A). 9. THE AR OF THE ASSESSEE HAS FILED BEFORE US ORDER OF THIS BENCH OF THE TRIBUNAL IN QUANTUM APPEAL OF THE ASSESSEE DATED 11.05.2012 WHEREIN THE TRIBUNAL DELETED THE ADDITION SUSTAINED BY THE CIT(A) AT RS. 1,44,00,730/ - . A S THE VERY BASIS OF LEVY OF PENALTY DOES NOT SU RVIVE, THEREFORE, THE PENALTY ALSO DOES NOT SURVIVE. OUR ABOVE VIEW FINDS SUPPORT FROM THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF K.C. BUILDERS VS. ACIT (2004) 265 ITR 562 (SC) HAS HELD THAT WHERE ADDITIONS ARE MADE IN THE ASSESSMENT ORDER ON THE BASIS OF WHICH PENALTY FOR CONCEALMENT IS LEVIED, ARE DELETED, THERE REMAINS NO BASIS AT ALL FOR LEVYING PENALTY FOR CONCEALMENT. NO PENALTY WOULD SURVIVE IF ADDITION DID NOT SURVIVE. THUS, WE FIND NO INFIRMITY IN THE ORDER OF THE CIT(A) IN DELETING T HE PENALTY LEVIED U/S.271(1)(C) OF THE ACT . THUS, THIS GROUND OF THE REVENUE IS DISMISSED. 10. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. SD/ - SD/ - ( MUKUL KR. SHRAWAT ) ( N.S. SAINI ) JUDICIA L MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 23 / 1 2 /20 1 4 PRABHAT KR. KESARWANI , SR. P . S . ITA NO. 1270 /AHD/201 1 ACIT (OSD) C IRCLE, 9 AHMEDABAD VS. M/S. YOGI CONSTRUCTION . FOR A.Y. 200 5 - 0 6 - 4 - / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) - III, AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD