Fluid Logic System Pvt. Ltd., Ahmedabad V. The ACIT, Circle 4, Ahmedabad

ITA 1761/AHD/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8867 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 9 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 23-03-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 14-06-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 271(1)(c); 144; 10; 90; 154; 2; 11; 15; 43B; 271(1)(b); 139; 143(3); 92

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH (BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER & SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER) ITA. NO: 1761/AHD/2013 (ASSESSMENT YEAR: 2009-10) FLUID LOGIC SYSTEM PVT. LTD. 11-12 MAHAGUJRAT INDUSTRIAL NAGAR, SARKHEJ BAVLA HIGHWAY N.H-8, VILLAGE-MORAIYA, AHMEDABAD-382210 V/S ACIT CIRCLE-4, AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AAACF3161A APPELLANT BY : NONE RESPONDENT BY : SHRI K. MADHUSUDAN, SR. D.R. ( )/ ORDER DATE OF HEARING : 23 -03-201 7 DATE OF PRONOUNCEMENT : 24 -03-2017 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE LD. CIT(A)- VIII, AHMEDABAD DATED 23.04.2013 PERTAINING TO A.Y. 2009-10. ITA NO. 1761 /AHD/2013 . A.Y. 2009-1 0 2 2. THE SOLE GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE PENALTY OF RS. 45,326/- LEVIED U/S. 271(1)(C) O F THE ACT. 3. THE ROOTS FOR THE LEVY OF PENALTY LIE IN THE ASSESS MENT ORDER DATED 30.09.2011 MADE U/S. 143(3) OF THE ACT. 4. DURING THE COURSE OF SCRUTINY ASSESSMENT PROCEEDING S, THE A.O. NOTICED THAT THE ASSESSEE HAS CLAIMED BONUS EXPENDITURE OF RS. 6,30,333/- AND HAS SHOWN THE SAME AS PAYABLE ON 31.03.2009. ON VERIFIC ATION OF PAYMENT OF DETAILS, THE A.O. FOUND THAT THE ASSESSEE HAD PAID ONLY AN AMOUNT OF RS. 5,54,306/-. THEREFORE, THE UNPAID BONUS OF RS. 75,6 94/- WAS DISALLOWED U/S. 43B OF THE ACT. 5. PENAL PROCEEDINGS WERE SEPARATELY INITIATED. 6. DURING THE COURSE OF THE PENAL PROCEEDINGS, THE ASS ESSEE CONTENDED THAT THOUGH THE AUDITORS HAVE QUALIFIED IN THE TAX AUDIT REPORT REGARDING THE PROVISION FOR BONUS AT RS. 6,30,333/- BUT SINCE THE SAME WAS NOT PAID BEFORE THE FINALIZATION OF AUDIT REPORT, IT WAS QUA LIFIED BY THE AUDITORS. 7. HOWEVER, AT THE TIME OF FILING OF THE RETURN, THE U NPAID BONUS OF RS. 75,694/- WAS INADVERTENTLY NOT DISALLOWED AND ADDED TO THE RETURNED INCOME. IT WAS STRONGLY CONTENDED THAT THE OMISSION WAS PURELY A CLERICAL ERROR AND THERE IS NO WILLFUL CONCEALMENT OF ANY IN COME OR FILING OF INACCURATE PARTICULARS. ITA NO. 1761 /AHD/2013 . A.Y. 2009-1 0 3 8. THIS CONTENTION OF THE ASSESSEE DID NOT FIND FAVOUR WITH THE A.O. WHO CONCLUDED BY LEVYING A PENALTY OF RS. 45,326/-. 9. AGGRIEVED BY THIS, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) BUT WITHOUT ANY SUCCESS. 10. NONE APPEARED BEFORE US ON BEHALF OF THE ASSESSEE I N SPITE OF NOTICE; THEREFORE, WE DECIDED TO PROCEED EX PARTE. THE LD. D.R. STRONGLY RELIED UPON THE FINDINGS OF THE FIRST APPELLATE AUTHORITY. 11. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE ORD ERS OF THE AUTHORITIES BELOW. IT IS TRUE THAT THE PROVISION WAS AT RS. 6,3 0,333/- AND IT IS EQUALLY TRUE THAT THE ASSESSEE HAD PAID ONLY AN AMOUNT OF R S. 5,54,306/-. A PERUSAL OF THE ASSESSMENT ORDER SHOWS THAT THE ASSESSEE REA LIZED ITS MISTAKE OF OMISSION AND IMMEDIATELY AGREED FOR THE ADDITION OF RS. 75,694/- AND DID NOT PREFER ANY APPEAL. 12. IN OUR CONSIDERED OPINION, IT APPEARS TO BE A CLERI CAL ERROR WITHOUT ANY INTENTION TO CONCEAL THE PARTICULARS OF INCOME. THE REFORE, DRAWING SUPPORT FROM THE DECISION OF THE HONBLE SUPREME COURT IN T HE CASE OF PRICE WATERHOUSE COOPERS PVT. LTD. 348 ITR 306, WE DO NOT FIND ANY MERIT IN THE LEVY OF THE IMPUGNED PENALTY. WE, ACCORDINGLY DIREC T THE A.O. TO DELETE THE PENALTY OF RS.45,326/-. ITA NO. 1761 /AHD/2013 . A.Y. 2009-1 0 4 13. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ACCORDINGLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 24 - 03- 20 17 SD/- SD/- (RAJPAL YADAV) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY ACCOUNTANT MEMBER AHMEDABAD: DATED 24/03/2017 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,AHME DABAD