Shri Alpesh Trilokbhai Parikh, Ahmedabad V. The Dy.CIT.,Circle-9, Ahmedabad

ITA 1511/AHD/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80552 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 18-11-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 27-05-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Assessee Lawyers: JYOTISH M SHAH
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD (BEFO RE MUKUL KR. SHRAWAT, J.M. & SHRI ANIL CHATURVEDI , A.M.) I. T. A. NO. 1511 / AHD/ 20 1 1 (A SSESSMENT YEAR: 2004 - 05 ) SHRI ALPESH T. PARIKH PROPRIETOR OF PARIKH DEVELOPERS 71, KAMDHENU COMPLEX NEAR POLYTECHNIC , AHMEDABAD V/S THE D.C.I.T., CIRCLE - 9, AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AAMPP2497C APPELLANT BY : SHRI JYOTISH M. SHAH RESPONDENT BY : SHRI M.K. SINGH, SR. D.R. ( )/ ORDER DATE OF HEARING : 18 - 11 - 2014 DATE OF PRONOUNC EMENT : 28 - 11 - 2014 PER SHRI ANIL CHATURVEDI,A.M. 1. THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF CIT(A) - XV, AHMEDABAD 18.04.2011 FOR A.Y. 2004 - 05. 2. THE FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 3. ASSESSEE IS AN INDIVIDUAL AND STATED TO BE ENGAGED IN THE BUSINESS OF CIVIL CONSTRUCTION WORK. ASSESSEE FILED ITS RETURN OF INCOME FOR A.Y. 04 - 05 ON 29.10.2004 DECLARING TOTAL INCOME AT RS. NIL AND AGRICULTURAL INCOME OF RS. 4,02,510/ - FOR RATE PURPOSES. THE CASE WAS SE LECTED FOR SCRUTINY AND THEREAFTER THE ASSESSMENT WAS FRAMED UNDER SECTION 143(3) VIDE ORDER DATED ITA NO 1511/AHD/2011 . A.Y. 2004 - 05 2 29.11.2006 AND NET TAXABLE INCOME AFTER SETTING OFF OF EARLIER YEAR LOSSES WAS DETERMINED AT RS. 3,04,448/ - AND AGRICULTURAL INCOME FOR RATE PURPOSES WAS DE TERMINED AT RS. 2,79,286/ - . AGGRIEVED BY THE ORDER OF A.O, ASSESSEE FILED APPEAL BEFORE CIT(A) WHO VIDE ORDER DATED 27.02.2008 GRANTED PARTIAL RELIEF TO THE ASSESSEE. LATER ON CIT PASSED ORDER U/S 263 ON 24.03.2009 DIRECTING THE A.O TO MAKE FRESH ASSESSME NT IN THE LIGHT OF OBSERVATIONS MADE BY HIM IN THE ORDER. PURSUANT TO THE DIRECTIONS OF CIT , A.O PASSED AN ORDER U/S. 143(3) R.W.S. 263 OF THE ACT VIDE ORDER DATED 30.12.2009 AND DETERMINED THE NET TAXABLE INCOME AT RS. 8,52,020/ - BY MAKING ADDITION OF RS. 2,87,461/ - WHICH WAS MADE UNDER THE HEAD INCOME FROM OTHER SOURCES BEING BOGUS AGRICULTURAL INCOME. ON THE AFORESAID ADDITION MADE A.O VIDE ORDER DATED 21.06.2010 LEVIED PENALTY OF RS. 52,241/ - U/S. 271(1)(C) OF THE ACT. AGGRIEVED BY THE ORDER OF A.O., ASSESSEE CARRIED THE MATTER BEFORE CIT(A) WHO VIDE ORDER DATED 18.04.2011 DISMISS ED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE AFORESAID ORDER OF CIT(A) ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS; - (I) INVALID & BAD ORDER THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)XV AHMEDABAD IS INVALID & BAD, AS ORDER IS PASSED WITHOUT CONSIDERING WRITTEN SUBMISSION FILED WITH HER. WITHOUT PREJUDICE ON MERITS (II) THE CIT(A) ERRED IN CONFIRMING PENALTY NOT CONSIDERING CONTENTION THAT AGRICULTURAL INCOME SHOWN IS TREATED AS INCOME FROM OTHER SOURCES ON ESTIMATED BASIS BY AO. (III) THE ORDER PANED BY THE CIT(A) WITHOUT CONSIDERING FACTS OF THE CASE & DEALING WITH CASE LAWS RELIED IS UNJUSTIFIED & BAD IN LAW. (IV) THE APPELLANT CRAVES FOR LE AVE TO ADD AND AFTER ALL OR ANY GROUNDS OF APPEAL BEFORE FINAL HEARING OF THIS APPEAL. 4. BEFORE US. LD. A.R. SUBMITTED THAT HE DID NOT WISH TO PRESS GROUND NO. 1 AND THEREFORE THE SAME IS DISMISSED AS NOT PRESSED. 5. THE OTHER GROUNDS ARE WITH RESPECT TO LEV Y OF PENALTY U/S. 271(1)(C) . BEFORE US LD. A.R. SUBMITTED THAT ASSESSEE HAD FILED ALL THE DETAILS OF AGRICULTURAL ITA NO 1511/AHD/2011 . A.Y. 2004 - 05 3 INCOME AND THE COPIES OF WHICH WERE PLACED AT PAGE 18 TO 29 OF THE PAPER BOOK. HE FURTHER SUBMITTED THAT THE ADDITION HAS BE EN MADE BY MAKING ESTIMATION ABOUT THE AGRICULTURAL INCOME AND IT HAS BEEN TREATED AS INCOME FROM OTHER SOURCES. HE FURTHER SUBMITTED THAT THE INCOME WAS ALREADY SHOWN BY THE ASSES SEE AND THE ASSESSEE HAD DISCLOSED ALL THE MATERIAL FACTS AND THE ADDITION HAS BEEN ON ACCOUNT OF E STIMATION . HE FURTHER SUBMITTED THAT NO PENALTY IS LEVI ABLE ON THE ADDITIONS MADE ON ESTIMATE BASIS. HE THUS URGED THAT THE PENALTY LEVIED BE DELETED. THE LD. D.R. ON THE OTHER HAND SUPPORTED THE ORDER OF A.O AND CIT(A) AND FURTHER SUBMITTED THAT AGAI NST THE QUANTUM ADDITION MADE, ASSESSEE DID NOT PREFER ANY APPEAL MEANING THEREBY THAT THE ASSESSEE HAS ACCEPTED THE ADDITIONS. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD . I N THE PRESENT CASE, WE FIND THAT ASSESSEE HAD FURNISH ED EXPLANATION DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND THE EXPLANATIONS SUBMITTED BY THE ASSESSEE HAVE NOT BEEN FOUND TO BE FALSE. IT IS ALSO A FACT THAT THE ADDITION ON ACCOUNT OF AGRICULTURAL INCOME HAS BEEN MADE ON ESTIMATED BASIS. IT IS SETTLE D LAW THAT PENALTY PROCEEDINGS AND ASSESSMENT PROCEEDINGS ARE TWO INDEPENDENT PROCEEDINGS AND THE PENALTY ORDER CANNOT BE SOLELY BASED ON THE REASONS GIVEN IN THE ORIGINAL ORDER OF ASSESSMENT. FURTHER APART FROM THE FALSITY OF THE EXPLANATION GIVEN BY THE ASSESSEE, THE DEPARTMENT MUST HAVE BEFORE IT BEFORE LEVYING THE PENALTY, COGENT MATERIAL OR EVIDENCE FROM WHICH IT COULD BE INFERRED THAT ASSESSEE HAS CONSCIOUSLY CONCEALED THE PARTICULARS OF HIS INCOME OR HAD DELIBERATELY FURNISHED INACCURATE PARTICULARS OF INCOME. IT IS WELL SETTLED THAT THE PARAMETERS OF JUDGING THE JUSTIFICATION FOR ADDITION MADE IN THE ASSESSMENT CASE OF THE ASSSESSEE IS DIFFERENT FROM THE PENALTY IMPOSED ON ACCOUNT OF CONCEALMENT OF INCOME OR FILING INACCURATE ITA NO 1511/AHD/2011 . A.Y. 2004 - 05 4 PARTICULARS OF INCOME AN D THAT CERTAIN DISALLOWANCE/ADDITION COULD LEGALLY BE MADE IN THE ASSESSMENT PROCEEDINGS ON THE PREPONDERANCE OF PROBABILITIES BUT NO PENALTY COULD BE IMPOSED U/S. 271(1)(C) OF THE ACT ON THE PREPONDERANCE OF PROBABILITIES AND REVENUE HAS TO PROVE THAT THE CLAIM OF EXPENSES BY THE ASSESSEE WAS NOT GENUINE OR WAS INFLATED TO REDUCE ITS TAX LIABILITY. FURTHER MERELY BECAUSE ADDITIONS HAVE CONFIRMED IN APPEAL OR NO APPEAL HAS BEEN FILED BY ASSESSEE AGAINST ADDITIONS MADE, IT CANNOT BE THE SOLE GROUND FOR COMIN G TO THE CONCLUSION THAT ASSESSEE HAS CONCEALED ANY INCOME. CONSIDERING THE AFORESAID AND PECULIAR FACTS OF THE CASE, WE ARE OF THE VIEW THAT IN THE PRESENT CASE NO CASE FOR PENALTY HAS BEEN MADE OUT. WE THUS DIRECT THE DELETION OF PENALTY. 7. IN THE RESULT, THE APPEAL OF ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 28 - 11 - 201 4 . SD/ - SD/ - (MUKUL KR. SHRAWAT ) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY 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,AHMEDABAD