Shri Bholabhai R. Patel,HUF, Baroda V. The ACIT.,Circle-5, Baroda

ITA 1390/AHD/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 9533 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 02-01-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 10-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VILAS V SHINDE
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH (BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) ITA. NO: 1390/AHD/2013 (ASSESSMENT YEAR: 2007-08) BHOLABHAI R. PATEL HUF 1- 2, DARSHAN PARK, VIP ROAD, KARELIBAUG, BARODA V/S ASSTT. COMM. OF INCOME TAX, CIRCLE-5, BARODA (APPELLANT) (RESPONDENT) PAN: AACHB0251L APPELLANT BY : MS. ARTI N. SHAH, AR RESPONDENT BY : SHRI VILAS V. SHINDE, SR. D. R. ( )/ ORDER DATE OF HEARING : 02-01-2017 DATE OF PRONOUNCEMENT : 05 -01-2017 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE LD. CIT(A)- V, BARODA DATED 18.03.2013 PERTAINING TO A.Y. 2007- 08. ITA NO . 139 0/AHD/2013 . A.Y. 2007-0 8 2 2. THE SOLE GRIEVANCE OF THE ASSESSEE RELATES TO THE L EVY OF PENALTY OF RS. 2,35,620/- U/S. 271(1)(C) OF THE ACT. 3. THE ROOTS FOR THE LEVY OF PENALTY LIE IN THE ASSESS MENT ORDER DATED 24.12.2009 MADE U/S. 143(3) OF THE ACT. 4. DURING THE COURSE OF THE SCRUTINY ASSESSMENT PROCEE DINGS, THE A.O. NOTICED THAT THERE WAS A CASH DEPOSIT OF RS. 7,00,000/- IN THE BANK ACCOUNT OF THE ASSESSEE WITH DENA BANK. THE ASSESSEE CLAIMED TO HA VE RECEIVED THAT AMOUNT FROM ONE M/S. RAJ AVIATION PVT. LTD. THOUGH THE ENTRY WAS NOT ROUTED THOUGH THE CASH BOOK BUT DIRECTLY ENTERED IN TO THE LEDGER ACCOUNT. 5. THIS CLAIM OF THE ASSESSEE DID NOT FIND ANY FAVOUR WITH THE ASSESSING OFFICER WHO MADE THE ADDITION OF RS. 7,00,000/- AND INITIAT ED PENALTY PROCEEDINGS. THE QUANTUM ADDITION OF RS. 7,00,000/- WAS CONFIRM ED BY THE LD. CIT(A) AND THE ASSESSEE DID NOT PREFER ANY FURTHER APPEAL. 6. THE A.O. LEVIED THE PENALTY U/S. 271(1)(C) OF THE A CT FOR CONCEALMENT OF PARTICULARS OF THE INCOME. THE A.O., WHILE LEVYING THE PENALTY, OBSERVED THAT THE ASSESSEE DECIDED TO FURNISH ANY DETAIL TO SUBSTANTIATE ITS CLAIM THAT THE SAID AMOUNT HAS BEEN RECEIVED FROM M/S. RAJ AVI ATION PVT. LTD AND HAS CREDITED THE SAID AMOUNT DIRECTLY. 7. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) B UT WITHOUT ANY SUCCESS. ITA NO . 139 0/AHD/2013 . A.Y. 2007-0 8 3 8. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE REITERA TED THAT THOUGH THE ASSESSEE HAS ACCEPTED THE QUANTUM ADDITION BUT THER E IS NO CASE OF CONCEALMENT OF PARTICULARS OF INCOME BECAUSE THE AS SESSEE HAS EXPLAINED THE SOURCE OF DEPOSIT OF RS. 7,00,000/- IN THE BANK ACCOUNT. IT IS THE SAY OF THE LD. COUNSEL THAT DUE TO INADVERTENCE, THE ENTRI ES WERE MADE DIRECTLY IN THE LEDGER ACCOUNT WITHOUT ROUTING THEM THROUGH THE CASH BOOK. THE LD. COUNSEL FURTHER STATED THAT SUCH INADVERTENCE, NO P ENALTY SHOULD BE LEVIED U/S. 271(1)(C) OF THE ACT. PER CONTRA, THE LD. D.R. STATED THAT THE ASSESSEE HAS NOT FURNISHED ANY DETAIL IN SUPPORT OF HIS CLAI M. 9. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE ORD ERS OF THE AUTHORITIES BELOW. WE HAVE ALSO GONE THROUGH THE COPY OF THE LE DGER ACCOUNT OF M/S. RAJ AVIATION PVT. LTD. WE FIND THAT IN THE SAID LE DGER ACCOUNT, THERE WAS AN OPENING DEBIT BALANCE OF RS. 22 LACS AS ON 01.04.20 02 AND AS ON 01/05/2006 THE OPENING BALANCE WAS AT RS. 7,00,000/-. IT IS TH E CLAIM OF THE ASSESSEE THAT THIS RS. 7,00,000/- WAS RECEIVED BY HIM AND DE POSITED IN THE BANK ACCOUNT. 10. IT APPEARS THAT THIS COPY OF LEDGER ACCOUNT HAS NOT BEEN APPRECIATED BY THE A.O. BEFORE LEVYING THE PENALTY. THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE RESTORE THIS ISSUE TO THE FILES OF THE A.O . THE A.O. IS DIRECTED TO CONSIDER THE COPY OF LEDGER ACCOUNT OF M/S. RAJ AVI ATION PVT. LTD. AND DECIDE THE ISSUE AFRESH AFTER GIVING A REASONABLE O PPORTUNITY OF BEING HEARD TO THE ASSESSEE. ITA NO . 139 0/AHD/2013 . A.Y. 2007-0 8 4 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 05 - 01- 20 17. SD/- SD/- (MAHAVIR PRASAD) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY ACCOUNTANT MEMBER AHMEDABAD: DATED 05/01/2017 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,AHME DABAD