M/s. Couthino Darryl Cyrilo, Nani Daman V. The Income Tax Officer, Ward-4, Daman

ITA 1491/AHD/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1391 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 06-06-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 20-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 40A(3); 6

Judgement Text

, SMC IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER ./ ITA NO.1491/AHD/2013 / ASSTT. YEAR: 2006-2007 M/S.COUTHINO DARRYL CYRILO CARMOS VILLA, NR.GOVT. COLLEGE VAD CHOWK, NANI DAMAN. PAN : ADMPC 4189 M VS ITO, WARD - 4 DAMAN. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI KAMLESH MAKWANA, SR.DR / DATE OF HEARING : 06/06/2016 / DATE OF PRONOUNCEMENT: 06/06/2016 $%/ O R D E R THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAI NST THE ORDER OF THE LD.CIT(A), VALSAD DATED 31.12.2012 PASSED IN TH E ASSTT.YEAR 2006- 07. 2. SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT THE L D.CIT(A) HAS ERRED IN PASSING EX PARTE ORDER AND CONFIRMING THE PENALTY OF RS.1,08,120/- IMPOSED UNDER SECTION 271(1)(C) OF THE INCOME TAX B Y THE LD.AO. 3. IN RESPONSE TO THE NOTICE OF HEARING, NO-ONE HAS COME PRESENT ON BEHALF OF THE ASSESSEE. THE ASSESSEE HAS FILED A P APER BOOK CONTAINING 61 PAGES, IN WHICH HE HAS PLACED ON RECORD WRITTEN SUBMISSION FROM PAGES 1 TO 18. WITH THE ASSISTANCE OF THE LD.DR, I HAVE GONE THROUGH THE WRITTEN SUBMISSIONS. 4. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF CIVIL CONSTRUCTION, DEALING IN LAND ETC . HE HAS FIELD HIS RETURN ITA NO.1491/AHD/2013 2 OF INCOME ON 31.12.2006 DECLARING TOTAL INCOME AT R S.3,38,790/-. WHILE FRAMING THE ASSESSMENT ORDER UNDER SECTION 14 3(3) OF THE ACT, THE LD.AO FOUND THAT THE ASSESSEE HAD MADE PAYMENT OF RS.17,66,700/- FOR PURCHASE OF VARIOUS PIECES OF LAND. THIS PAYME NT WAS MADE TO FIVE VENDORS, AND IT WAS MADE IN CASH. THE AO CONFRONTE D THE ASSESSEE AS TO WHY DISALLOWANCE UNDER SECTION 40A(3) OF THE ACT SHOULD NOT BE MADE. IT APPEARS THAT THE ASSESSEE DID NOT FILE DE TAILED EXPLANATION EXHIBITING THE REASONS FOR MAKING SUCH PAYMENT IN C ASH. ACCORDINGLY, THE LD.AO HAS DISALLOWED THE EXPENDITURE INCURRED F OR PURCHASE OF LAND TO THE EXTENT OF 20% AS CONTEMPLATED IN SECTION 40A (3) OF THE ACT. SIMILARLY, THE AO FOUND THAT THE ASSESSEE HAS CLAIM ED EXPENDITURE OF RS.17,83,363/- TOWARDS LABOUR CHARGES ETC. RS.1,30, 009/- TOWARDS DEVELOPMENT CHARGES, RS.1,28,698/- TOWARDS EXCAVATI ON CHARGES AND RS.2,84,154/- TOWARDS LOADING AND UNLOADING. 10% O F THE ABOVE EXPENDITURE HAS BEEN DISALLOWED. ADDITION OF RS.2, 84,154/- WAS MADE. THE LD.AO HAS INITIATED PENALTY PROCEEDINGS UNDER S ECTION 271(1)(C) OF THE ACT. IN RESPONSE TO THE SHOW CAUSE NOTICE UNDE R SECTION 274 R.W.S. 271(1)(C) OF THE ACT, THE ASSESSEE FILED WRITTEN SU BMISSION WHICH HAS BEEN REPRODUCED BY THE AO IN THE PENALTY ORDER. HO WEVER, THE LD.AO WAS NOT CONVINCED WITH THE EXPLANATION OF THE ASSES SEE. HE IMPOSED PENALTY OF RS.1,08,120/-. 5. ON APPEAL, THE LD.CIT(A) HAS CONFIRMED PENALTY B Y OBSERVING AS UNDER: 4.2 SUBMISSION OF THE A.R. :- THE APPELLANT DI D NOT ATTEND THE HEARING ON THE APPOINTED DAY NOR FILED ANY ADJO URNMENT APPLICATION. HE DID NOT CARE TO FILE ANY WRITTEN SU BMISSION AS WELL. 4.3 DECISION :- I HAVE CONSIDERED THE PENALTY ORDER OF THE AO. THE APPELLANT DENIED THE APPELLATE AUTHORITY HI S POINTS OF VIEW IN THIS MATTER. FROM THE ATTITUDE OF THE APPEL LANT IT SEEMS HE IS NOT INTERESTED TO PURSUE THE APPEAL BECAUSE THE APPELLANT FAILED TO RESPOND TO THE SEVERAL NOTICES ISSUED TO HIM. IN THIS CIRCUMSTANCES, THE CASE DECIDED ON THE BASIS OF FAC TS ON RECORDS AND MERIT. ON THE ONE HAND THE AO HAS PASSED A SPEA KING PENALTY ITA NO.1491/AHD/2013 3 ORDER AND ON THE OTHER HAND THE APPELLANT DID NOT C ARE TO PUT ACROSS ITS POINTS OF VIEW. IN THE ABSENCE OF COUNTE R VIEW ON THE SUBJECTS, I AM CONSTRAINED TO UPHELD THE ORDER OF T HE AO. THUS, THIS GROUND IS DISMISSED. 6. IN THE WRITTEN SUBMISSIONS THE ASSESSEE HAS EXPL AINED THAT HE HAS REMITTED THE COPY NOTICE TO HIS ACCOUNTANT WHO HAS GIVEN IT TO THE AUTHORIZED REPRESENTATIVE, BUT SOMEHOW, REPRESENTAT ION WAS NOT MADE. IN PARA-3.1 OF THE WRITTEN SUBMISSIONS THE ASSESSEE HAS EXPLAINED HIS POSITION. AFTER GOING THROUGH THE ABOVE, I AM SATI SFIED THAT THE THERE IS NO DELIBERATE ATTEMPT AT THE END OF THE ASSESSEE TO IGNORE THE INCOME- TAX PROCEEDINGS BEFORE THE LD.CIT(A). APART FROM T HE ABOVE, SUB- SECTION 6 OF SECTION 250 OF THE INCOME TAX ACT, MAN DATES UPON THE LD.CIT(A) TO FRAME THE POINTS OF DISPUTES FOR DETER MINATION AND RECORD REASONS IN SUPPORT OF HIS CONCLUSION WHILE DECIDING THE APPEAL OF THE ASSESSEE. THE LD.CIT(A) OUGHT TO HAVE RE-APPRECIATE D THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE BEFORE THE AO, WH ICH HAVE BEEN EXTRACTED IN THE PENALTY ORDER. THE LD.CIT(A) HAS NOT GONE THROUGH THE RECORD CAREFULLY BEFORE DISMISSING THE APPEAL OF TH E ASSESSEE. THEREFORE, I SET ASIDE THE ORDERS OF THE LD.CIT(A) AND REMIT THE ISSUE TO THE FILE OF THE LD.CIT(A) FOR FRESH ADJUDICATION. THE LD.CIT(A) SHALL PROVIDE ONE MORE OPPORTUNITY OF HEARING TO THE ASSE SSEE, BEFORE ADJUDICATING THE APPEAL OF THE ASSESSEE. 7. IN RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 6 TH JUNE, 2016 AT AHMEDABAD. SD/- (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 06/06/2016