The ACIT, Circle-9, Surat V. M/s. Lathiya Brothers, Surat

ITA 146/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9219 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 1 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 11-03-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 18-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Assessee Lawyers: RASHESH SHAH
• Keywords: Gross profit estimation

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ ITA NO. 146/AHD/2012 / ASSESSMENT YEAR: 2004-05 THE DCIT, CIRCLE-9, SURAT VS M/S. LATHIYA BROTHERS, 17, TAPOVAN ESTATE, OPP. GITANJALI CINEMA, VARACHHA ROAD, SURAT PAN : AAAFL 9277 G / (APPELLANT) / (RESPONDENT) REVENUE BY : SONIA KUMAR, SR. DR ASSESSEE(S) BY : RASHESH SHAH, AR / DATE OF HEARING : 11/03/2016 / DATE OF PRONOUNCEMENT: 15/03/2016 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER:- THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-V, SUR AT, DATED 05.09.2011 FOR ASSESSMENT YEAR 2004-05 2. THE ONLY EFFECTIVE GROUND RAISED IN THIS APPEAL IS WHETHER THE CIT(A) IS JUSTIFIED IN DELETING THE LEVY OF PENALTY OF RS.28,04,639/- U/S 271(1)(C) OF THE INCOME-TAX ACT. 3. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IS A FIRM INVOLVED IN THE BUSINESS OF IMPORT, EXPORT AND MANUFACTURING OF DIA MONDS. FOR THE YEAR UNDER CONSIDERATION, THE ASSESSEE FILED RETURN OF INCOME ON 27.10.2004, DECLARING TOTAL INCOME AT RS.24,03,180/ -. THE CASE WAS SELECTED FOR SCRUTINY ASSESSMENT AND THE ASSESSING OFFICER PASSED THE ITA NO. 146/AHD/2012 DCIT VS. M/S. LATHIYA BROTHERS AY : 2004-05 2 ORDER ON 28.11.2006 BY DETERMINING TOTAL INCOME AT RS.37,17,370/- MAKING SEVERAL ADDITION, INCLUDING THE ADDITION ON ACCOUNT OF LOW GP AMOUNTING TO RS.17,60,705/-; AND ALSO INITIATING TH E PENALTY PROCEEDINGS US/ 271(1)(C) OF THE ACT. ON APPEAL, T HE CIT(A) VIDE ORDER DATED 11.03.2007, ENHANCED THE ADDITIONS MADE BY TH E ASSESSING OFFICER AT RS.17,60,705/- TO RS.78,17,813/-. SUBS EQUENT TO THE CIT(A)S ORDER, PENALTY U/S 271(1)(C) OF THE ACT WA S COMPLETED, IMPOSING A PENALTY OF RS.28,04,639/-. ON FURTHER A PPEAL, THE PENALTY IMPOSED WAS CONFIRMED BY THE CIT(A) VIDE ORDER DATE D 05.09.2011. THE ASSESSEE, BEING AGGRIEVED, IS IN APPEAL BEFORE THE TRIBUNAL. 4. AT THE TIME OF HEARING BEFORE US, IT WAS POINTED OUT BY THE LD. COUNSEL THAT, IN THE QUANTUM APPEAL, THE TRIBUNAL H AS ALLOWED THE CLAIM OF THE ASSESSEE REGARDING THE ESTIMATION OF G ROSS PROFIT AND NET PROFIT VIDE ITS ORDER DATED 30.04.2013 IN ITA NO.2 441/AHD/2008 COPY OF THE ORDER IS PLACED ON RECORD. WHEN THE AD DITION IN RESPECT OF WHICH THE PENALTY IS SUSTAINED BY THE CIT(A) HAS BE EN DELETED BY THE ITAT, THE PENALTY IN RESPECT OF SUCH ADDITION CANNO T SURVIVE. ACCORDINGLY, WE DELETE THE PENALTY OF RS.28,04,639/ - LEVIED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE ACT. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE COURT ON 15 TH MARCH, 2016 AT AHMEDABAD. SD/- SD/- (ANIL CHATURVEDI) ACCOUNTANT MEMBER (KUL BHARAT) JUDICIAL MEMBER AHMEDABAD; DATED 15/03/2016 *BIJU T. ITA NO. 146/AHD/2012 DCIT VS. M/S. LATHIYA BROTHERS AY : 2004-05 3 '#$%&'&($ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! ' ' # / CONCERNED CIT 4. ' ' # ( ) / THE CIT(A) 5. &'( ! , ' ! , / DR, ITAT, AHMEDABAD 6. (- . / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD