The ACIT, Central Circle-1(1), Ahmedabad V. M/s. Trident Creation Pvt.Ltd., Ahmedabad

ITA 1647/AHD/2011

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6980 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 08-12-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 15-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B KULSHRESTHA
• Keywords: Unexplained investment
• Section: 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD 0 0 , , BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ ITA NO . 1647 / AHD/ 201 1 [ [ / ASSESSMENT YEAR : 20 0 5 - 06 THE ACIT, CC - 1(1) AHMEDABAD VS TRIDENT CREATION PVT LTD, UPPER FLOOR, SATKAR BUILDING, CG ROAD, ELLIS BRIDGE, AHMEDABAD PAN : AAACT 7979 G / (APPELLANT) / (RESPONDENT) REVENUE BY : S HRI B. KULSHRESTHA, SR. DR. ASSESSEE(S) BY : SHR I SUNIL TALATI, AR / DATE OF HEARING : 0 8 / 12 /2014 / DATE OF PRONOUNCEMENT: 12 /1 2 /2014 / O R D E R PER SHRI N.S. SAINI, ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) - I , AHMEDABAD DATED 27 . 04 .201 1 FOR THE ASSESSMENT YEAR 20 0 5 - 0 6 . 2. THE SOLE ISSUE INVOLVED IN THIS APPEAL IS THAT THE CIT(A) ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY OF RS.61,98,747/ - IMPOSED U/S 271(1)(C) OF THE ACT. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF RETAIL TRAD E IN JEWELLERY, SHOES AND APPARELS AND ALSO ACTING ITA NO. 1647/AHD/2011 TRIDENT CREATION PVT LTD FOR AY 2005 - 06 2 AS SELLING AGENT FOR THESE ITEMS. THE ASSESSEE FILED RETURN OF INCOME ON 31.07.2005 SHOWING INCOME OF RS.38,51,940/ - . THE ASSESSMENT U/S 143(3) WAS MADE ON 22.12.2006 DETERMINING THE INCOME OF THE ASSESSEE AT RS.1,69,39,940/ - BY MAKING ADDITION OF RS.1,30,88,000/ - ON ACCOUNT OF UNEXPLAINED INVESTMENT U/S 69B OF THE ACT. 4. ON APPEAL, THE CIT(A) CONFIRMED THE ABOVE ADDI TION. THEREAFTER, THE ASSESSING OFFICER LEVIED PENALTY U/S 271(1)(C) OF THE ACT ON RS.1,30,88,000/ - OF RS.61,98,747/ - BEING 100% OF THE TAX SOUGHT TO BE EVADED FOR FURNISHING INACCURATE PARTICULARS OF INCOME. 5. ON APPEAL FILED THERE AGAINST, THE CIT(A) DELETED THE PENALTY BY OBSERVING THAT THE ADDITION OF RS.1,30,88,000/ - MADE U/S 69B OF THE ACT WAS DELETED BY THE TRIBUNAL IN QUANTUM APPEAL FILED BY THE ASSESSEE VIDE ORDER DATED 01.09.2010 PASSED IN ITA NO.1078/AHD/2009 IN ASSESSMENT YEAR 2005 - 06. 6. BEI NG AGGRIEVED BY THE SAID ORDER OF THE CIT(A), THE REVENUE IS IN APPEAL BEFORE US. 7. THE DEPARTMENTAL REPRESENTATIVE RELIED ON THE ORDER OF THE ASSESSING OFFICER, WHEREAS THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SUPPORTED THE ORDER OF THE CIT(A). 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND MATERIAL AVAILABLE ON RECORD. THE UNDISPUTED FACTS OF THE CASE ARE THAT IN THE ASSESSMENT MADE U/S 143(3) OF THE ACT ON 22.12.2006, THE ASSESSING OFFICER MADE ADDIT ION OF RS.1,30,88,000/ - ON ACCOUNT OF UNEXPLAINED INVESTMENT U/S 69B OF THE ACT WHICH WAS CONFIRMED IN APPEAL BY THE CIT(A). THEREAFTER, WHEN THE APPEAL OF THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) WAS PENDING BEFORE THE ITA NO. 1647/AHD/2011 TRIDENT CREATION PVT LTD FOR AY 2005 - 06 3 TRIBUNAL , THE ASSESSING OFFICER LEVIED PENALTY OF RS.61,98,747/ - U/S 271(1)(C) BEING 100% OF THE TAX SOUGHT TO BE EVADED ON RS. 1,30,88,000/ - ON ACCOUNT OF FURNISHING INACCURATE PARTICULARS OF INCOME. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A) AND BY THAT TIME THE ORDER OF THE TRIBUNAL WAS RECEIVED BY THE ASSESSEE WHEREIN THE TRIBUNAL IN THE QUANTUM APPEAL OF THE ASSESSEE DELETED THE ADDITION OF RS.1,30,88,000/ - MADE U/S 69B OF THE ACT VIDE ORDER DATED 01.09.2010 PASSED IN ITA NO.1078/AHD/2009 IN ASSESSMENT YEAR 2005 - 06. THEREFORE, THE CIT(A) DELETED THE LEVY OF PENALTY U/S 271(1)(C) OF THE ACT AS THE VERY BASIS FOR LEVY OF PENALTY DID NOT SURVIVE, THEREFORE, THE PENALTY ALSO DID NOT SURVIVE. 9. WE FIND THAT THE HONBLE SUPREME COURT IN THE CASE OF K.C. BUILDERS VS. AC IT, (2004) 265 ITR 562 (SC) HAS HELD THAT WHERE ADDITIONS ARE MADE IN THE ASSESSMENT ORDER ON THE BASIS OF WHICH PENALTY FOR CONCEALMENT IS LEVIED, ARE DELETED, THERE REMAINS NO BASIS AT ALL FOR LEVYING PENALTY FOR CONCEALMENT. NO PENALTY WOULD SURVIVE IF ADDITION DID NOT SURVIVE. THEREFORE, WE FIND NO INFIRMITY IN THE ORDER OF THE CIT(A) IN DELETING THE PENALTY WHICH IS HEREBY CONFIRMED AND THE APPEAL OF THE REVENUE IS DISMISSED. 10 . IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE CO URT ON FRIDAY , THE 12 TH OF DECEMBER , 2014 AT AHMEDABAD. SD/ - SD/ - (KUL BHARAT) JUDICIAL MEMBER ( N.S. SAINI) ACCOUNTANT MEMBER AHMEDABAD; DATED 12 /1 2 /2014 BIJU T., PS ITA NO. 1647/AHD/2011 TRIDENT CREATION PVT LTD FOR AY 2005 - 06 4 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) - I , AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. [ / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD