The ACIT, (OSD)Circle-9, Ahmedabad V. Shri Omprakash Ramlal Chaudhary, Ahmedabad

ITA 1773/AHD/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0348 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-01-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 17-01-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 09-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL KUMAR SRDR
• Assessee Lawyers: TUSHAR P HEMANAI
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A AHMEDABAD BEFORE SHRI, A.K.GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.1773/AHD/2012 ASSESSMENT YEAR :2006-07 ACIT (OSD), CIRCLE-9, 2 ND FLOOR, A WING, PRATYAKSH KAR BHAVAN OPP. SAHJANAND COLLEGE, PANJRAPOL, AMBAWADI, AHMEDABAD V/S . SHRI OMPRAKASH RAMLAL CHAUDHARY, PROP. CHAUDHARY CONSTRUCTION CO. & EARTH MOVERS, 129, NEW CLOTH MARKET, RAIPUR DARWAJA, SARANGPUR, AHMEDABAD [ PAN NO. AAJPC 1167H ] / APPELLANT .. / RESPONDENT) /BY APPELLANT SHRI RAHUL KUMAR, SR-DR /BY RESPONDENT SHRI TUSHAR P HEMANAI, AR /DATE OF HEARING 17-01-2013 /DATE OF PRONOUNCEMENT 18 -01-2013 / // / O R D E R PER KUL BHARAT, JUDICIAL MEMBER:- THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-XV, AHMEDABAD (CIT(A) FOR SHORT) DATED 23-05-2012 PERTAINING TO ASSESSMENT YEAR (AY) 2006-07. THE REVENUE HAS RAISED SOLE GROUND AS UNDER:- 1) THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV , AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENAL TY OF RS.37,97,959/- LEVIED U/S. 271(1) OF THE ACT. ITA NO.1773/AHD/2012 A.Y. 2006-07 ACIT (OSD) CIR-9 ABD V. SH OMPRAKASH R CHAUDHARY PA GE 2 2. BRIEFLY STATED FACTS ARE THAT ASSESSEE IS ENGAGE D IN THE BUSINESS OF CIVIL CONSTRUCTION IN NAMELY STYLE OF M/S. CHOUDHARY CONS TRUCTION CO. & EARTH MOVERS. THE CASE OF THE ASSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S. 143(3) OF THE INCOME-TAX ACT, 1 961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED THEREBY THE ASSESSING O FFICER MADE ADDITION U/S. 40(A)(IA) OF THE ACT IN RESPECT OF LABOUR EXPENSES AND EARTH WORK EXPENSES. THE AO WHILE FRAMING THE ASSESSMENT ORDER ALSO INIT IATED PENALTY PROCEEDINGS. SUBSEQUENTLY, PENALTY OF RS.37,97,959/ - WAS LEVIED VIDE PENALTY ORDER DATED 16-03-2011. AGAINST THIS, ASSESSEE FILE D APPEAL BEFORE LD. CIT(A) WHO AFTER CONSIDERING THE SUBMISSIONS ALLOWED THE A PPEAL OF ASSESSEE THEREBY DELETED THE PENALTY. 3. NOW, REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 4. AT THE TIME OF HEARING LD. COUNSEL FOR THE ASSES SEE SUBMITTED THAT PENALTY WAS LEVIED ON TWO ITEMS ONE OF THE ADDITI ON HAS BEEN DELETED BY THE HONBLE CO-ORDINATE BENCH OF THIS TRIBUNAL IN ASSES SEES CASE IN ITA NO.2925/AHD/2009 DATED 12-10-2012 FOR AY 2006-07 AN D ANOTHER ADDITION WAS REMITTED BACK TO THE FILE OF ASSESSING OFFICER TO VERIFY THAT ENTIRE SUM OF RS.39,72,302/- HAS BEEN PAID DURING THE YEAR UNDER APPEAL AND NOTHING IS PAYABLE AT THE END OF FINANCIAL YEAR. HE SUBMITTED THAT IN VIEW OF THE FACTUAL POSITION, THE PRESENT PENALTY DOES NOT SURVIVE. ON THE CONTRARY, LD. SR-DR FOR THE REVENUE, SHRI RAHUL KUMAR RELIED ON THE ORDER O F ASSESSING OFFICER AND SUBMITTED THAT THE DECISION OF HONBLE SPECIAL BENC H VISHAKHAPATNAM RENDERED IN THE CASE OF MERILYN SHIPPING AND TRANSPORT V. ACIT 136 ITD 23 (SB) (VSK) HAS BEEN SUSPENDED BY THE HONBLE ANDHRA PRADESH HIGH COURT. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD AND THE CASE LAW CITED BY LD. D R. WE FIND THAT PENALTY WAS LEVIED ON TWO ITEMS I.E. AMOUNTING TO RS.39,72, 260/- ON ACCOUNT OF LABOUR EXPENSES AND RS.72,38,302/- ON ACCOUNT OF EARTH WOR K EXPENSES. IT IS ITA NO.1773/AHD/2012 A.Y. 2006-07 ACIT (OSD) CIR-9 ABD V. SH OMPRAKASH R CHAUDHARY PA GE 3 UNDISPUTED FACT THAT ADDITION OF RS.72,38,302/- HAS BEEN DELETED BY THE HONBLE CO-ORDINATE BENCH OF THIS TRIBUNAL IN ASSES SEES OWN CASE (SUPRA) IN ITA NO. 2925/AHD/2009 IN QUANTUM PROCEEDING AND ANO THER ADDITION HAS BEEN REMITTED BACK TO THE FILE OF ASSESSING OFFICER. THI S BEING THE FACTUAL POSITION, IN OUR CONSIDERED OPINION, THE PENALTY AS IMPOSED BY T HE ASSESSING OFFICER DOES NOT SURVIVE, HOWEVER, THE AO WOULD BE AT LIBERTY TO INITIATE PENALTY PROCEEDINGS AND LEVY PENALTY IN RESPECT OF ISSUE REMITTED BACK TO HIS FILE. IN THIS VIEW OF THE MATTER THIS GROUND OF REVENUES APPEAL IS DISMISSED . 6. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- (A.K.GARODIA) (KUL BHARAT) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, *DKP !' #- 18/01/2013 *+, - ../ ../ ../ ../ 0/ 0/ 0/ 0/ / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. ','.2 3 / CONCERNED CIT 4. 3- / CIT (A) 5. /67 ...2, .2 , *+, / DR, ITAT, AHMEDABAD 6. 7:; <= / GUARD FILE. BY ORDER/ , /TRUE COPY/ >/* '? .2 , *+, - STRENGTHEN PREPARATION & DELIVERY OF ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 17/01 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE NO 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 17/01 4) DATE OF CORRECTION 5) DATE OF FURTHER CORRECTION 6) DATE OF INITIAL SIGN BY MEMBERS 7) ORDER UPLOADED ON 8) ORIGINAL DICTATION PAD-PART HAS BEEN ENCLOSED IN THE FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON ITA NO.1773/AHD/2012 A.Y. 2006-07 ACIT (OSD) CIR-9 ABD V. SH OMPRAKASH R CHAUDHARY PA GE 4