Shri Memon Mohammed Salim Haji Abdulgani, Ahmedabad V. The Income Tax Officer, Ward-9(4), Ahmedabad

ITA 1619/AHD/2014

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8980 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 21-03-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 22-05-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: TDS
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH AHMEDABAD BEFORE, SHRI S. S. GODARA, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ITA NO.1619/AHD/2014 (ASSESSMENT YEAR:2008-09) SHRI MEMON MOHAMMED SALIM HAJI ABDULGANI NR. ROZY CINEMA, SARANGPUR, AHMEDABAD 380002 APPE LLANT VS. INCOME TAX OFFICER, WARD 9(4), AHMEDABAD RESPONDENT PAN: ALLPM2458A /BY ASSESSEE : WRITTEN SUBMISSIONS /BY REVENUE : SHRI PRADEEP KUMAR MAJMUDAR, SR. D.R. /DATE OF HEARING : 21.03.2017 /DATE OF PRONOUNCEMENT : 21.03.2017 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2008-09 EMANATES AGAINST THE CIT(A)-II, AHMEDABADS EX PARTE ORDER DATED 31. 03.2014, PASSED IN APPEAL NO. CIT(A)-II/ITO.WD.9(4)/ABD/103/2013-14, U PHOLDING ASSESSING OFFICERS ACTION IMPOSING PENALTY OF RS.94,342/-, I N PROCEEDINGS U/S.271(1)(C) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. ITA NO. 1619/AHD/2014 [SHRI MEMON MOHAMMED SALIM HA JI AVDULGANI VS. ITO] A.Y. 2008-09 - 2 - WE HAVE HEARD LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED ASSESSEES WRITTEN SUBMISSIONS. 2. RELEVANT FACTS ARE IN A VERY NARROW COMPASS. TH IS ASSESSEE IS ENGAGED IN TRANSPORT BUSINESS. THE ASSESSING OFFICER FRAMED A REGULAR ASSESSMENT IN HIS CASE ON 13.12.2010 DISALLOWING INTEREST PAYMENT S MADE TO TATA MOTORS AND GMAC TOTALING TO RS.2,36,369/- QUOTING ASSESSEE S FAILURE IN NOT DEDUCTING TDS THEREUPON U/S.194A OF THE ACT. HE FU RTHER DISALLOWED UNPAID ACCOUNTANT FEE AND CREDITORS OF PUNJAB TYRE CO. OF RS.1.1LAC BY OBSERVING THAT THE ASSESSEE FOLLOWED CASH SYSTEM OF ACCOUNTIN G WHEREIN ONLY THE EXPENSES ACTUALLY PAID ARE ALLOWABLE. HE FURTHER I NITIATED THE IMPUGNED PENALTY PROCEEDINGS U/S.271(1)(C) OF THE ACT ALLEGI NG FURNISHING OF INACCURATE PARTICULARS OF INCOME. 3. WE NOW COME TO THE PENALTY PROCEEDINGS IN QUESTI ON. THE ASSESSING OFFICER HEAVILY RELIED UPON ABOVE ASSESSMENT DEVELO PMENTS AND ASSESSEES ACTION IN NOT FILING ANY REPLY THAT THE TWO QUANTUM ADDITIONS HEREINABOVE AMOUNTING TO CONCEALMENT OF INCOME AS WELL AS FURNI SHING OF INACCURATE PARTICULARS OF INCOME TO IMPOSE THE IMPUGNED PENALT Y OF RS.90,342/- IN QUESTION AS AFFIRMED IN THE EX PARTE LOWER APPELLAT E ORDER UNDER CHALLENGE. 4. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO AS SESSEES WRITTEN SUBMISSIONS AS WELL AS REVENUES STRONG STAND SUPPO RTING THE IMPUGNED PENALTY. WE OBSERVE FIRST OF ALL THAT BOTH THE LOW ER AUTHORITIES HAVE HELD THE ASSESSEE TO HAVE CONCEALED HIS INCOME ARISING FROM THE TWO QUANTUM DISALLOWANCES WHEREAS THE IMPUGNED PENALTY HAD BEEN INITIATED ONLY ALLEGING FURNISHING OF INACCURATE PARTICULARS OF INCOME. IT IS THEREFORE A CASE WHEREIN BOTH THE LOWER AUTHORITIES HAVE ACTED IN EXCESS OF THE ORIGINAL SHOW CAUSE REASONS. WE WISH TO REITERATE THAT WE ARE DEALING WITH PENALTY PROVISION IN A FISCAL STATUTE TO BE STRICTLY CONSTRUED. WE THEREF ORE REVERSE THE LOWER ITA NO. 1619/AHD/2014 [SHRI MEMON MOHAMMED SALIM HA JI AVDULGANI VS. ITO] A.Y. 2008-09 - 3 - AUTHORITIES FINDINGS ON THIS CONCEALMENT ASPECT FO R THE SOLE REASON HEREINABOVE THAT THE SAME IS AGAINST THE PENALTY SH OW CAUSE NOTICE. WE NOW ADVERT TO LATTER ASPECT OF THE IMPUGNED PEN AL ACTION CONCLUDING THAT THE ASSESSEE HAD FURNISHED INACCURA TE PARTICULARS OF INCOME. IT EMERGES FROM THE ASSESSMENT ORDER THAT THE ASSES SING OFFICER HAD VERIFIED ASSESSEES BOOKS, BILLS, VOUCHERS AND DETAILS OF LO ANS AND LIABILITIES TO ARRIVE AT THE TWO DISALLOWANCES IN QUESTION. WE DO NOT SE E ANYWHERE IN ASSESSMENT ORDER THAT HE HAD HIMSELF EVEN ASKED THE ASSESSEE T O PRODUCE ANY ADDITIONAL PARTICULARS. IT THEREFORE EMERGES THAT THE ASSESSE ES ALL RELEVANT PARTICULARS WERE FOUND TO BE INCORRECT RESULTING IN THE TWO QUA NTUM DISALLOWANCES. WE THUS CONCLUDE THAT THIS IS ALSO NOT A CASE OF FURNI SHING OF INACCURATE PARTICULARS OF INCOME. WE ACCORDINGLY DIRECT THE A SSESSING OFFICER TO DELETE THE IMPUGNED PENALTY. 5. THIS ASSESSEES APPEAL IS ALLOWED. [PRONOUNCED IN THE OPEN COURT ON THIS THE 21 ST DAY OF MARCH, 2017.] SD/- SD/- ( AMARJIT SINGH ) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL ME MBER AHMEDABAD: DATED 21/03/2017 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )*+ ,--. . /0 / DR, ITAT, AHMEDABAD 1 +23 / GUARD FILE. BY ORDER / . // . /0