The ITO, Ward-5(2)(1), Ahmedabad V. Shri Kamlesh J. Jhaveri, Ahmedabad

ITA 1410/AHD/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5996 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 26-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: A L THAKKAR
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH (BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) ITA. NO: 1410/AHD/2016 (ASSESSMENT YEAR: 2009-10) INCOME TAX OFFICER, WARD- 5 (2)(1), AHMEDABAD V/S SHRI KAMLESH J JHAVERI, B/201, SIDDH SILLA APPT, B/H. EKTA TOWER, BARRAGE ROAD VASNA, AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AETPJ 5973L APPELLANT BY : SHRI MUDIT NAGPAL, SR. D. R. RESPONDENT BY : SHRI A. L. THAKKAR, A.R. ( )/ ORDER DATE OF HEARING : 26 -02-201 8 DATE OF PRONOUNCEMENT : 28 -02-2018 PER N.K. BILLAIYA, ACCOUNTANT MEMBER 1. THIS APPEAL BY THE REVENUE IS PREFERRED AGAINST THE ORDER OF THE LD. CIT(A)-5, AHMEDABAD DATED 21.03.2016 PERTAINING TO A.Y. 2009- 10. ITA NO . 141 0/AHD/2016 . A.Y. 2009-1 0 2 2. THE SOLITARY GRIEVANCE OF THE REVENUE IS THAT THE L D. CIT(A) ERRED IN DELETING THE PENALTY OF RS. 26,47,575/- LEVIED U/S. 271(1)(C) OF THE ACT. 3. THE ROOTS FOR THE LEVY OF PENALTY LIE IN THE ASSESS MENT ORDER DATED 21.12.2011 FRAMED U/S. 143(3) OF THE ACT. 4. ON VERIFICATION OF DETAILS FILED DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE A.O. NOTICED THAT THE ASSESSEE HAS SHOWN A HUGE LOSS OF RS. 77,95,670/- ON CERTAIN GOODS PURCHASED AND SOLD TO THE SAME DAY AT A LOWER RATE TO ITS SISTER CONCERN AND CLOSE BUSINESS ASSOCIATES. NOT SATISFIE D THAT THE REPLY OF THE ASSESSEE, THE A.O. DISALLOWED THE LOSS OF RS. 77,95 ,670/- AND ADDED TO THE RETURNED INCOME AS CONCEALED INCOME. PENAL PROCEEDI NGS U/S. 271(1)(C) OF THE ACT WERE SEPARATELY INITIATED. PENALTY OF RS. 26,47 ,575/- WAS LEVIED FOR FURNISHING INACCURATE PARTICULARS OF INCOME BY WHIC H THE ASSESSEE HAS CONCEALED THE INCOME TO THE EXTENT OF RS. 77,95,670/-. 5. THE QUANTUM ADDITION TRAVELLED UP TO THE TRIBUNAL A ND THE TRIBUNAL VIDE ORDER DATED 25.01.2017 IN ITA NO. 1420/AHD/2013 DELETED T HE SAID ADDITION. THE RELEVANT FINDINGS OF THE CO-ORDINATE BENCH READS AS UNDER:- 18. WE ARE, THEREFORE, OF THE VIEW THAT THE ACTION OF I D. ASSESSING OFFICER WAS ERRONEOUS AS HE HAS SELECTED ONLY FEW TRANSACTIONS ON WHICH ONLY LOSS HAS INCURRED WITHOUT GIVING COGNIZANCE TO THE FACT THAT ASSESSEE HAS GAINED IN OTHER TRANSACTIONS WITH THE IMPUGNED PARTIES WHICH ARE VERY WELL EVID ENCED WITH THE INDEPENDENT ITEM-WISE TRANSACTION DETAILS FORMING PART OF THE B OOKS OF ACCOUNT OF ASSESSEE PLACED AT PAGES 35 TO 45 OF THE PAPER BOOK. LD. ASSESSING OFFICER ALSO FAILED TO POINT OUT ANY MISTAKE IN THE ALLEGED TRANSACTIONS EXCEPT MENTIONI NG THAT THE LOSS HAS BEEN INCURRED. LD. ASSESSING OFFICER COMPLETELY FAILED T O APPRECIATE THAT EVERY ASSESSEE HAS HIS OWN STYLE OF DOING BUSINESS AND MORE SPECIF ICALLY IN THE KIND OF BUSINESS ASSESSEE IS ENTERED INTO IT IS WELL ESTABLISHED THA T THERE IS REGULAR FLUCTUATIONS IN THE PRICES OF GOLD/SILVER/DIAMONDS AND JEWELLERY DUE TO WHICH PROFIT/LOSS ARE INCURRED. IN ITA NO . 141 0/AHD/2016 . A.Y. 2009-1 0 3 THE PRESENT CASE WHEN THE ASSESSEE IS MAINTAINING REGULAR BOOKS OF ACCOUNT WHICH ARE AUDITED AND ALL TRANSACTIONS ARE FULLY SUPPORTE D BY BILLS AND VOUCHERS, IMPUGNED TRANSACTIONS HAVE TAKEN PLACE THROUGH BANKING CHANN ELS, CONFIRMATIONS HAVE BEEN RECEIVED FROM THE ALLEGED PARTIES NO ADVERSITY HAS BEEN FOUND IN THE STATEMENTS RECORDED BY THE REVENUE OF THE ALLEGED PARTIES QUAN TITATIVE RECORDS ARE REGULARLY MAINTAINED, SIMILAR TRANSACTIONS HAVE NOT BEEN DISP UTED EVEN IN THE SUBSEQUENT ASSESSMENT U/S 143(3) OF THE ACT AS SUPPORTED BY TH E COPY OF THE ORDER U/S 143(3) OF THE ACT FOR ASST. YEAR 2012-13 FRAMED ON 13.2.2015. WE, THEREFORE, HOLD THAT THE IMPUGNED 15 TRANSACTIONS GIVING RISE TO LOSS OF RS. 77,95,670/- ARE GENUINE AND CANNOT BE TERMED AS COLOURABLE WITH THE INTENTION OF EVASION OF TAX AND ID. ASSESSING OFFICER ERRED IN DISALLOWING THE SAME. WE ACCORDING LY, SET ASIDE THE ORDER OF THE LD. CIT(A) AND ALLOW THE APPEAL OF THE ASSESSEE. 6. SUBLATO FUNDAMENTO CADIT OPUS- WHEN THE FOUNDATIO N IS REMOVED, THE SUPER STRUCTURE MUST FALL. 7. APPEAL FILED BY THE REVERENCE IS ACCORDINGLY DISMIS SED. ORDER PRONOUNCED IN OPEN COURT ON 28 - 02- 20 18 SD/- SD/- (MAHAVIR PRASAD) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY ACCOUNTANT MEMBER AHMEDABAD: DATED 28 /02/2018 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