M/s Yash Developers, Baroda V. The Dy.CIT. Circle-2, Baroda

ITA 1580/AHD/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 63203 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 29-11-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 17-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T SANKAR
• Assessee Lawyers: M K PATEL
• Keywords: Bad and doubtful debts; Difference of opinion
• Section: 27

Judgement Text

, , , , D, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, D BENCH . .. . . .. . , !' !' !' !', , , , #$ %&'( #$ %&'( #$ %&'( #$ %&'(, , , , )* + ) )* + ) )* + ) )* + ) ' ' ' ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND ANIL CHATURVEDI, ACCOUNTANT MEMBER) ITA NO.1580/AHD/2012 [ASSTT.YEAR : 2003-2004] M/S.YASH DEVELOPERS 2 ND FLOOR, PRESTIGE COMPLEX OPP: BANK OF INDIA RACE COURSE CIRCLE BARODA 390 007. PAN : AAAFY 1169 Q /VS. DCIT, CIR.2(2) BARODA. ( (( (-. -. -. -. / APPELLANT) ( (( (/0-. /0-. /0-. /0-. / RESPONDENT) 1& 2 3 )/ ASSESSEE BY : SHRI M.K. PATEL + 2 3 )/ REVENUE BY : SHRI T. SANKAR 5 2 &(*/ DATE OF HEARING : 29 TH NOVEMBER, 2012 678 2 &(*/ DATE OF PRONOUNCEMENT : 14-12-2012 )9 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THIS APPEAL BY THE ASSESSEE FOR THE A.Y.2003-2004 IS DIRECTED AGAINST THE ORDER OF THE CIT(A)-V, BARODA DATED 6.6.2012. 2. THE GROUNDS OF THE APPEAL OF THE ASSESSEE ARE AS UNDER: ITA NO.1580/AHD/2012 -2- 1. THE LD.CIT(A) ERRED IN HOLDING THAT THE APPELLA NT FIRM HAD CONCEALED THE INCOME IN RELATION TO THE CLAIM O F BAD DEBTS. 2. THE LD.CIT(A) ERRED IN HOLDING THAT PENALTY LEVI ED BY THE AO WAS CORRECT AND FURTHER ERRED IN CONFIRMING THE PENALTY OF RS.98,000/- LEVIED U/S.271(1)(C) OF THE ACT. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT IT IS A SIMPLE CASE OF DISALLOWANCE OF BAD DEBTS CLAIMED AS BAD DEBTS OR ALTERNATIVELY AS A BUSINESS LOSS TO THE ASSESSEE. HE SUBMITTED THAT ALL THE NECESSARY DETAILS WERE FILED BEFORE THE AO. HE SUBMITTED THAT IT IS A CASE OF HONEST DIFFERENCE OF OPINION BETWEEN THE ASSESSEE AND THE DEPARTMENT WITH REGARD TO ALLOWABILITY OF CERTAIN C LAIM OF DEDUCTION MADE BY THE ASSESSEE. THE LEARNED DR HAS OPPOSED T HE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE. HE REFERR ED TO RELEVANT PORTIONS OF THE ORDERS OF THE AO AND THE CIT(A) IN SUPPORT OF THE CASE OF THE REVENUE. HE RELIED ON THE ORDER OF THE AO A ND THE CIT(A). 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND HAVE PE RUSED THE ORDERS OF THE AO AND THE CIT(A). WE FIND THAT THE ASSESSEE HAS CLAIMED CERTAIN AMOUNT AS BAD DEBT WHICH WAS DISALL OWED BY THE AO HOLDING THE SAME AS LOSS OF CAPITAL IN NATURE. THE DISALLOWANCE OF CLAIM OF LOSS BY THE AO WAS NOT CONTESTED BY THE AS SESSEE BEFORE THE CIT(A). WE FIND THAT ALL THE MATERIAL FACTS AND RE LEVANT DETAILS WERE SUBMITTED BY THE ASSESSEE AT THE ASSESSMENT STAGE I TSELF BEFORE THE AO. IT IS A CLEAR CASE OF HONEST DIFFERENCE OF OPINION BETWEEN THE PARTIES WITH REGARD TO ALLOWABILITY OF CERTAIN CLAIM OF DED UCTION MADE BY THE ASSESSEE. THERE IS NO MATERIAL BROUGHT ON RECORD T O SUGGEST THAT THE CLAIM OF THE ASSESSEE FOR BAD DEBT OR AS A BUSINESS LOSS, WAS NOT BONA FIDE . MERELY BECAUSE, THE ASSESSEE HAS NOT CONTESTED T HE DISALLOWANCE ITA NO.1580/AHD/2012 -3- OF CLAIM OF LOSS IN APPEAL BEFORE THE CIT(A), IS NO GROUND TO DECIDE THE ISSUE OF LEVY OF PENALTY AGAINST THE ASSESSEE. IN THE FACTS AND CIRCUMSTANCES OF THE CASE OF THE ASSESSEE, WE ARE O F THE VIEW THAT IT IS NOT A FIT CASE FOR LEVY OF PENALTY UNDER SECTION 27 1(1)(C) OF THE ACT, WHICH IS ACCORDINGLY CANCELLED AND THE GROUNDS OF T HE APPEAL OF THE ASSESSEE ARE ALLOWED. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( %&' %&' %&' %&'( (( ( / ANIL CHATURVEDI) )* + )* + )* + )* + /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD 1. DATE OF DICTATION : 29-11-2012 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER. : 29-11-2012 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P.S./P.S : 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT. : 5. DATE ON WHICH FAIR ORDER PLACED BEFORE OTHER MEMBER : 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P.S./P.S. : 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK. : 14-12-2012 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK. : 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER. : 10. DATE OF DESPATCH OF THE ORDER :