M/s. Radhakishan Pulse Mills, Borsad V. The Income Tax Officer, Ward-3(4), Petlad

ITA 1783/AHD/2014

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5947 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 8 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 12-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: B T THAKKAR
• Section: 142(1); 147; 148

Judgement Text

, ,L ,L,L ,L- -- -,E ,E,E ,E- -- -LH LHLH LH IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD IZEKSN DQEKJ IZEKSN DQEKJ IZEKSN DQEKJ IZEKSN DQEKJ BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER I.T.A. NOS.1783 & 1784/AHD/2014 ( / ASSESSMENT YEAR : 2006-07) M/S. RADHAKISHAN PULSE MILLS ANAND CHOKDI, BARODA - 388540 VS. ITO, WARD -3(4), PETLAD. ! PAN/GIR NO. : AACFR 2151 D ( ' / APPELLANT ) .. ( #' RESPONDENT ) '$ APPELLANT BY : SHRI B. T. THAKKAR, A.R. #'%$ / RESPONDENT BY : SHRI JAMES KURIAN, SR. D.R. & ' (%) * / DATE OF HEARING 25/01/2018 +,-. %) * / DATE OF PRONOUNCEMENT 26/02/2018 / O R D E R PER MAHAVIR PRASAD, JUDICIAL MEMBER : THESE ARE TWO APPEALS BY THE ASSESSEE AGAINST THE SEPARATE ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS)-I, BARO DA, VIDE APPEAL NOS.CAB-I/061/2013-14 AND CAB-I/215/2013-14 DATED 2 5/04/2014 FOR THE ASSESSMENT YEARS (AYS) 2006-07. 2. FIRST WE TAKE UP ITA NO.1783/AHD/2014, ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEALS: 1. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ITA NOS. 1783 & 1784/AHD/2 014 M/S. RADHAKISHAN PULSE MILLS VS. ITO ASST.YEARS 2006-07 - 2 - HAS ERRED IN CONFIRMING REOPENING THE ASSESSMENT U/ S.148 OF THE ACT. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE A S WELL AS LAW ON THE SUBJECT, THE NOTICE ISSUED U/S.148 IS ILLEGAL AND CONTRARY TO LAW. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE A S WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (AP PEALS) HAS ERRED IN CONFIRMING ADDITION OF RS.19,65,988/- U/S 69D OF THE ACT. 4. IT IS PRAYED THAT ABOVE ADDITION/DISALLOWANC E MADE BY ASSESSING OFFICER AND CONFIRMED BY COMMISSIONER OF INCOME-TAX (APPEALS) MAY PLEASE BE DELETED. 3. BRIEFLY STATED FACTS AS CULLED OUT FROM THE RECO RDS ARE THAT IN THIS CASE, RETURN OF INCOME FILED ON 26/09/2006 DECLARIN G TOTAL INCOME RS.23,550/-. THE SAME IS PROCESSED U/S.143(1). THE SCRUTINY ASSESSMENT U/S.143(3) OF THE ACT, WAS COMPLETED ON 07/11/2008 ON TAXABLE INCOME OF RS. 99,620/- THE NOTICE U/S.148 WAS ISSUED ON 06.02 .2012 AND SERVED UPON THE ASSESSEE. 4. THEREAFTER NOTICE U/S. 142(1) OF THE ACT, ISSUED ON 31/05/2012 WITH PARTICULARS OF ACCOUNTS AND DOCUMENTS REQUIRED. 5. IN RESPONSE TO STATUTORY NOTICES, SHRI ASHOK MAH ESHWRI, CA, AR OF THE ASSESSEE, AND KIRIT PATEL, THE PARTNER OF TH E CAPTIONED FIRM ATTENDED AND FILED THE DETAILS REQUIRED. THE CAPTIONED FIRM IS DOING TRADING BUSINESS OF PULSES, MAIZE OIL CAKE ETC ON WHOLESALE BASIS. 6. ON VERIFICATION OF THE DETAILS FURNISHED BY THE ASSESSEE, IT IS NOTICED THAT THE CAPTIONED FIRM HAS MADE THE REPAYM ENT OF LOAN/DEPOSIT OF ITA NOS. 1783 & 1784/AHD/2 014 M/S. RADHAKISHAN PULSE MILLS VS. ITO ASST.YEARS 2006-07 - 3 - RS.19,65,988/- BY WAY ACCOUNT PAYEE HUNDI THROUGH M /S. RANCHHODBHAI ZAVERBHAI INSTEAD OF BY ACCOUNT PAYEE CHEQUE/DRAFT AS REQUIRED UNDER THE PROVISIONS OF SECTION 269T OF THE INCOME TAX ACT, 1 961. THE AR OF THE ASSESSEE APPROACHED ADDL. C.I.T., R-3 TO AND THEY A RE OF THE OPINION THAT THE PROVISION OF SEC. 69D IS APPLICABLE IN THIS CAS E BUT THE ASSESSEE WAS GIVEN AN OPPORTUNITY TO PROVE WITH APPROPRIATE SUPP ORTING EVIDENCE THAT SUCH REPAYMENTS OF LOAN WERE NOT MADE BY WAY OF HUN DI, BUT A/C PAYEE CHEQUES ISSUED BY THE ASSESSEE BUT HE COULD NOT PRO VE. HENCE THE REPAYMENT OF SUCH LOAN/DEPOSIT I.E. RS, 19,65,988/- SHALL BE DEEMED TO BE THE INCOME OF THE ASSESSEE AS PER THE PROVISIONS OF SECTIONS 69D. 7. AGAINST THE SAID ORDER ASSESSEE PREFERRED FIRST STATUTORY APPEAL BEFORE THE LD. CIT(A) WHO DISMISSED THE APPEAL OF T HE APPELLANT. 8. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IMP UGNED ORDER. IN THIS CASE, THE SCRUTINY U/S.143(3) OF THE I.T. ACT, 1961 WAS COMPLETED ON 07/11/2008 BY ASSESSING INCOME OF RS.99,620/- AS AG AINST THE RETURN OF RS.99,620/- IN RETURN OF INCOME FILED BY THE ASSESS EE ON 26/09/2006. THEREAFTER, A NOTICE U/S. 148 WAS ISSUED ON 06/02/2 012. NOTICE U/S.148 OF THE ACT WAS ISSUED ON THE ASSESSEE AFTER 4 YEARS OF COMPLETION OF ASSESSMENT YEAR. 9. IN OUR CONSIDERED OPINION, RE-ASSESSMENT CANNOT BE MADE AFTER 4 YEARS IF ASSESSEE HAS NOT FAILED IN DISCLOSING ALL THE RELEVANT MATERIAL IN ITA NOS. 1783 & 1784/AHD/2 014 M/S. RADHAKISHAN PULSE MILLS VS. ITO ASST.YEARS 2006-07 - 4 - SUPPORT OF ITS CONTENTION. LD. AR CITED A JUDGMENT OF JURISDICTIONAL HIGH COURT IN THE MATTER OF DISHMAN PHARMACEUTICALS AND CHEMICALS LIMITED VS. DCIT (OSD) REPORTED IN 346 ITR 245 , THE ASPECTS TOUCHING THE POWERS OF AN ASSESSING OFFICER TO REOP EN ASSESSMENT BEYOND 4 YEARS OF THE END OF ASSESSMENT YEAR UNDER SECTION 147 OF THE INCOME TAX ACT. 10. IN THIS CASE, THERE WAS NO FAILURE ON THE PART OF THE ASSESSEE IN AS MUCH AS ASSESSEE HAS GIVEN DETAILS IN THE AUDIT REP ORT ITSELF. FURTHER FROM THE PERUSAL OF REASONS RECORDED ALSO, IT CAN BE DER IVED THAT THERE IS NO ALLEGATION OF ANY FAILURE OF ASSESSEE IN DISCLOSING FULLY AND TRULY ANY MATERIAL FACT NECESSARY FOR ITS ASSESSMENT. 11. IN VIEW OF THE ABOVE, WE HOLD THAT NOTICE U/S.1 48 WAS ISSUED TO THE ASSESSEE AFTER THE PERIOD OF 4 YEARS OF COMPLETION OF ASSESSMENT YEAR. WE QUASH THE ASSESSMENT PROCEEDINGS. THEREFORE, APPEAL OF THE ASSESSEE IS ALLOWED. 12. NOW WE TAKE UP ITA NO.1784/AHD/2014 APPELLANT H AS TAKEN FOLLOWING GROUNDS: 1. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE A S WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN CONFIRMING PENALTY OF RS.19,65,988/- U /S 271E OF THE ACT. 2. IT IS PRAYED THAT ABOVE ADDITION/DISALLOWANC E MADE BY ASSESSING OFFICER AND CONFIRMED BY COMMISSIONER OF INCOME-TAX (APPEALS) MAY PLEASE BE DELETED. ITA NOS. 1783 & 1784/AHD/2 014 M/S. RADHAKISHAN PULSE MILLS VS. ITO ASST.YEARS 2006-07 - 5 - 13. SINCE WE HAVE QUASHED THE ASSESSMENT PROCEEDING IN CONNECTED APPEAL IN ITA NO. 1783/AHD/2014 IN QUANTUM PROCEEDI NG AND GRANTED RELIED TO THE APPELLANT AND NOW THIS APPEAL IS CONS EQUENTIAL. WE DELETE THE PENALTY OF RS.19,65,988/- U/S.271. 14. IN THE RESULT, BOTH THE APPEALS FILED BY THE AS SESSEE ARE ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 26 / 0 2 /201 8 SD/- SD/- IZEKSN DQEKJ IZEKSN DQEKJ IZEKSN DQEKJ IZEKSN DQEKJ EGKOHJ IZLKN EGKOHJ IZLKN EGKOHJ IZLKN EGKOHJ IZLKN YKS[KK LN YKS[KK LN YKS[KK LN YKS[KK LNL; L; L; L; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; (PRAMOD KUMAR) ( MAHAVIR PRASAD ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 26/02/2018 PRITI YADAV, SR.PS !'# $#! COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #' / THE RESPONDENT. 3. 012) & 3) / CONCERNED CIT 4. & 3) 45 / THE CIT(A)-I, BARODA. 5. 67 8)'12 *12. 0 / DR, ITAT, AHMEDABAD 6. 8 9: ( GUARD FILE. % & / BY ORDER, # 6)) //TRUE COPY// '/& () ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD TRUE C