Shri Rajesh Manikchand Jain, Surat V. The Income tax Officer,Ward-2(3), Surat

ITA 1709/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 89507 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 11 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 09-06-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 27-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD (BEFORE SHRI SHAILENDRA KR. YADAV, J.M. & SHRI ANIL CHATURVEDI, A.M.) I.T. A. NO. 1709/AHD/2011 (ASSES SMENT YEAR: 2005-06) RAJESH MANIKCHAND JAIN FLAT NO. 504, EARTH, RAJHANS CAMPUS, PAL HAZIRA ROAD, ADAJAN, SURAT 395006 V/S INCOME TAX OFFICER, WARD- 2(3), SURAT (APPELLANT) (RESPONDENT) PAN: ABHPJ0574A APPELLANT BY : NONE RESPONDENT BY : SHRI B.L. YADAV, SR. D.R. ( )/ ORDER DATE OF HEARING : 09-06-2015 DATE OF PRONOUNCEMENT : 10 -06-2015 PER SHRI ANIL CHATURVEDI,A.M 1. THIS APPEAL IS DIRECTED AGAINST THE PENALTY ORDER D ATED 26-03-2010 PASSED UNDER SECTION 271(1)(C) WHEREIN PENALTY OF RS. 38,0 3,485/- WAS LEVIED BY THE AO FOR A.Y. 2005-06. 2. ON THE DATE OF HEARING NONE APPEARED ON BEHALF OF THE ASSESSEE BUT THE ASSESSEE HAD FILED WRITTEN SUBMISSIONS VIDE LETTER DATED 23.03.2015. WE ITA NO 1709/ AHD/2011 . A.Y. 2005-0 6 2 THEREFORE PROCEED TO DECIDE THE MATTER EX PARTE QUA THE ASSESSEE ON THE BASIS OF MATERIAL ON RECORD AND THE WRITTEN SUBMISSIONS. 3. IN THE PRESENT CASE PENALTY OF RS. 38,03,485/- WAS LEVIED U/S. 271(1)(C) BY THE AO VIDE ORDER DATED 26/03/2010 ON ACCOUNT OF DI SALLOWANCE OF AGENCY COMMISSION OF RS. 1,10,20,201/-. IN THE WRITTEN SUB MISSIONS SUBMITTED BEFORE US, ASSESSEE HAS SUBMITTED THAT AGAINST THE ORDER OF A.O WHEREBY THE AGENCY COMMISSION WAS DISALLOWED, ASSESSEE HAD PRE FERRED APPEAL BEFORE LD. CIT(A). LD. CIT(A) VIDE ORDER DATED 24/11/2008 HAD CONFIRMED THE DISALLOWANCE. AGAINST THE ORDER OF LD. CIT(A), ASS ESSEE HAD PREFERRED APPEAL BEFORE HON'BLE TRIBUNAL. HON'BLE TRIBUNAL IN ITA NO. 618/AHD/2009 ORDER DATED 20/10/2011 ALLOWED THE APPEAL OF THE AS SESSEE AND DELETED THE ADDITIONS. IT WAS THEREFORE SUBMITTED THAT SINCE TH E QUANTUM ADDITION ON WHICH PENALTY HAS BEEN LEVIED ITSELF HAS BEEN DELET ED BY THE HON'BLE TRIBUNAL, THE PENALTY LEVIED U/S. 271(1)(C) DOES NO T SURVIVE AND THEREFORE THE PENALTY NEEDS TO BE DELETED. THE TRIBUNAL ORDER DAT ED 20.10.2011 WAS ALSO PLACED ON RECORD BY ASSESSEE. THE LD DR RELIED ON T HE ORDER OF A.O. AND LD. CIT(A) BUT HOWEVER FAIRLY CONCEDED THAT IN THE QUANTUM APPEAL, THE MATTER HAS BEEN DECIDED IN FAVOUR OF ASSESSEE BY HO NBLE ITAT. 4. WE HAVE HEARD THE LD. DR AND PERUSED THE MATERIAL O N RECORD. WE FIND THAT ON THE QUANTUM ADDITIONS MADE BY THE A.O WHILE FRAM ING THE ASSESSMENT UNDER SECTION 143(3) ORDER DATED 31/12/2007, AO VID E PENALTY ORDER DATED 26/03/2010 HAD LEVIED PENALTY OF RS. 38,03,485/- UNDER SECTION 271(1)(C) OF THE ACT. AGAINST THE QUANTUM ADDITION MADE BY AO, A SSESSEE PREFERRED APPEAL BEFORE TRIBUNAL. TRIBUNAL VIDE ORDER DATED 2 0/10/2011 DECIDED THE APPEAL IN FAVOUR OF THE ASSESSEE AND DELETED THE AD DITION. SINCE THE ADDITION ITA NO 1709/ AHD/2011 . A.Y. 2005-0 6 3 ON WHICH THE PENALTY U/S. 271(1)(C) WAS LEVIED ITSE LF HAS BEEN DELETED, WE ARE OF THE VIEW THAT NO PENALTY ON THE AFORESAID DISALL OWANCE SURVIVES. WE THUS DIRECT THE DELETION OF PENALTY U/S. 271(1)(C) OF TH E ACT. THUS, THIS GROUND IS ALLOWED. 5. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 10 - 06 - 2015. SD/- SD/- (SHAILENDRA KR. YADAV) (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