M/s. Yash Dairy Spieces & Food Pvt. Ltd., Ahmedabad V. The Income Tax Officer, Ward-4(1)(4), Ahmedabad

ITA 1290/AHD/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5280 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 29-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMEET KUMAR VERMA
• Assessee Lawyers: MEHUL K PATEL
• Keywords: Deemed to accrue or arise in india
• Section: 271(1)(c); 115JB

Judgement Text

, SMC IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMEBR ./ I.T.A. NO. 1290/AHD/2017 ( ASSESSMENT YEAR : 2012-13) M/S. YASH DAIRY SPICES & FOOD PVT. LTD. 9/10, 3 RD FLOOR, SHYAM SHIKHAR COMPLEX, BAPUNAGAR TALLNAKA, AHMEDABAD 380024 / VS. THE ITO WARD 4(1)(4), AHMEDABAD ./ ./ PAN/GIR NO. : AAACY2221L ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI MEHUL K. PATEL, A.R. / RESPONDENT BY : SHRI SUMEET KUMAR VERMA, SR.D.R. DATE OF HEARING 24/01/2019 !'# / DATE OF PRONOUNCEMENT 29/01/2019 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE CIT(A)-8, AHMEDAB AD (CIT(A) IN SHORT), DATED 12.04.2017 ARISING IN THE PENALTY ORD ER DATED 24.07.2015 PASSED BY THE ASSESSING OFFICER (AO) UNDER S. 271(1 )(C) OF THE INCOME TAX ACT, 1961 (THE ACT) CONCERNING AY 2012-1 3. ITA NO. 1290/AHD/17 [M/S. YASH DAIRY SPICES & FOOD PVT. LTD. VS. ITO] A.Y. 2012-13 - 2 - 2. THE SOLITARY ISSUE INVOLVED IN THE PRESENT AP PEAL IS TOWARDS IMPOSITION OF PENALTY OF RS.1,54,916/- UNDER S.271( 1)(C) OF THE ACT. 3. WHEN THE MATTER WAS CALLED FOR HEARING, THE LEA RNED AR FOR THE ASSESSEE REFERRED TO THE ASSESSMENT ORDER AT THE OU TSET AND SUBMITTED THAT THE PENALTY HAS BEEN IMPOSED ON ACCOUNT OF ADD ITION OF CERTAIN SHORT TERM CAPITAL GAINS AMOUNTING TO RS.9,73,492/- . HOWEVER, THE ASSESSMENT HAS BEEN ULTIMATELY CARRIED OUT UNDER TH E SPECIAL PROVISIONS OF SECTION 115JB OF THE ACT WHERE THE BO OK PROFIT WAS FOUND TO BE SUBSTANTIALLY HIGHER AT RS.29,75,210/-. THE LEARNED AR FOR THE ASSESSEE THUS SUBMITTED THAT WHERE THE TAX PAYABLE AS PER THE MAT PROVISION EXCEEDS QUA TAX LIABILITY UNDER NORMA L PROVISIONS, NO CONCEALMENT CAN BE ENVISAGED UNDER S. 271(1)(C) OF THE ACT. FOR THIS PROPOSITION, THE LEARNED AR RELIED UPON THE DECISIO N OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. NALWA SONS INVESTMENTS LTD. [2010] 327 ITR 543 (DEL.). THE LEARNED AR NEXT SUB MITTED THAT EXPLANATION (4) TO SECTION 271(1)(C) HAS BEEN MODIF IED BY FINANCE ACT, 2015 AND IS APPLICABLE FROM AY 2016-17 ONWARDS TO IMPOSE PENALTY ON SUCH A SITUATION WHICH IS PROSPECTIVE IN NATURE. THE LEARNED AR THUS CONTENDED THAT PENALTY IMPOSED BY T HE AO AND CONFIRMED BY THE CIT(A) IS WITHOUT AUTHORITY OF LAW AND THUS REQUIRES TO BE DELETED. 4. THE LEARNED DR, ON THE OTHER HAND, RELIED UPON T HE ORDERS OF THE REVENUE AUTHORITIES. 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. THE SHORT CONTROVERSY IN ISSUE IS WHETHER UNDER S.271(1)(C) O F THE ACT CAN BE IMPOSED ON THE ALLEGED CONCEALMENT OF INCOME BY THE ASSESSEE QUANTIFIED WITH REFERENCE TO THE AMOUNT OF TAX SOUG HT TO BE EVADED AS PER THE NORMAL PROVISIONS OF THE ACT WHERE THE TAX LIABILITY HAS ITA NO. 1290/AHD/17 [M/S. YASH DAIRY SPICES & FOOD PVT. LTD. VS. ITO] A.Y. 2012-13 - 3 - ULTIMATELY ARISEN ON THE ASSESSEE AT DEEMED INCOME AS PER THE SPECIAL PROVISIONS OF SECTION 115JB OF THE ACT. A REFERENC E TO THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF NALWA S ONS INVESTMENTS LTD. (SUPRA) HAS BEEN MADE ON BEHALF OF THE ASSESSE E WHICH SQUARELY COVERS THE ISSUE IN FAVOUR OF THE ASSESSEE. THE SU BSEQUENT AMENDMENT TO THE EXPLANATION (4) OF SECTION 271(1)(C) ALSO SU GGESTS THE PURPORT OF THE EXISTING PROVISIONS AS APPLICABLE IN THE REL EVANT ASSESSMENT YEAR. THEREFORE, WE FIND MERIT WITH THE APPEAL OF THE ASSESSEE. THE AO IS ACCORDINGLY DIRECTED TO DELETE THE PENALTY IM POSED UNDER NORMAL PROVISION WHEN THE TAX LIABILITY HAS BEEN FASTENED ON THE ASSESSEE UNDER THE SPECIAL PROVISIONS OF SECTION 115JB OF TH E ACT. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . SD/- SD/- (MAHAVIR PRASAD) (PRADIP KUMA R KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 29/01/2019 TRUE COPY S. K. SINHA !'#' / COPY OF ORDER FORWARDED TO:- &. / REVENUE 2. / ASSESSEE (. )*+ , / CONCERNED CIT 4. ,- / CIT (A) /. 012 33*+4 *+#4 56) / DR, ITAT, AHMEDABAD 7. 289 : / GUARD FILE. BY ORDER / 4 /5 *+#4 56) THIS ORDER PRONOUNCED IN OPEN COURT ON 29/01/201 9