Shri Madhavdas H. Fichadiya, RAJKOT-GUJARAT V. The Income Tax Officer, Ward-5(1), RAJKOT-GUJARAT

ITA 18/RJT/2012

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1090 (ITAT-RAJKOT)
• Duration Of Justice: 3 year(s) 4 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 26-05-2015
• Assessment Year: 2001-2002
• Appeal Filed On: 12-01-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Assessee Lawyers: RD LALCHANDANI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH , RAJKOT BEFORE SHRI SHAILEND RA K UMAR YADAV, JUDICIAL MEMBER, AND SHRI N. S. SAINI , ACCOUNTANT MEMBER . ITA. NO. 1 0 6 / RJT /20 1 1 (ASSESSMENT YEAR: 200 1 - 0 2 ) ITO, WARD - 5(1), RAJKOT APPELLANT VS. SHRI MADHAVRAV H. FICHADIA, PROP. OF M/S.H.H.SONS, DARBARGADH ROAD, RAJKOT RESPONDENT & ITA NO. 18 / RJT /20 1 2 (ASSESSMENT YEAR: 200 1 - 0 2 ) SHRI MADHAVRAV H. FICHADIA, PROP. OF M/S.H.H.SONS, DARBARGADH ROAD, RAJKOT A PPELLANT VS. ITO, WARD - 5(1), RAJKOT RESPONDENT PAN: AA C P F4462D / BY REVENUE : SHRI AVINASH KUMAR, D.R. / BY ASSESSEE : SHRI R. D . LALCHANDANI, A DV . / DATE OF HEARING : 2 6 .0 5 .2015 / D ATE OF PRONOUNCEMENT : 29 .0 5 .2015 I T A NO. 1 0 6 /R / 1 1 & ITA NO. 18 /R/1 2 , A.Y.0 1 - 0 2 [ IT O VS. SHRI MADHAVRAV H. FICHADIA ] PAGE 2 ORDER PER BENCH SINCE, B OTH THESE REVENUE S APPEAL AND ASSESSEE S APPEAL ARE ARISING OUT FROM THE SAME ORDER OF CIT(A) - XXI , AHMEDABAD, DATED 3 1 . 0 1 .20 1 1 FOR A.Y. 200 1 - 0 2 , S O THEY ARE BEING DISPOS ED OF BY COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. IN ITA NO. 1 0 6 / RJT /20 11 , REVENUE HAS FILED THE APPEAL ON THE FOLLOWING GROUND S : 1 THE LD. CIT(A) , HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE AO TO DELETE THE PENALTY LEVIED U/S.271(1)(C) OF THE AC T OF RS.607912/ - , WITHOUT CONSIDERING THE FACTS BROUGHT ON RECORD BY THE AO. 2. THE LD. CIT(A), HAS ERRED IN LAW AND ON FACTS IN NOT CONSIDERING THE FACT THAT THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(A) & HON.ITAT AGAINST THE AGREED ASSESSMENT, BUT DIS MISSED THE APPEALS EVEN BY THE ITAT. THUS, THE LD.CIT(A) OUGHT TO HAVE UPHELD THE PENALTY LEVIED BY THE A.O. 3. ASSESSING OFFICER LEVIED PENALTY U/S.271(1)(C) OF THE ACT AMOUNTING TO RS.6,07,912/ - . MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AUTHORITY , WHEREIN VARIOUS CONTENTIONS WERE RAISED ON BEHALF OF ASSESSEE AND HAVING CONSIDERED THE SAME, CIT(A) HAS GRANTED RELIEF TO ASSESSEE. SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENUE INTER ALIA SUBMITTING THAT CIT(A) WAS NOT JUSTIFIED IN DELETING PE NALTY IN QUESTION, MORE SO WHEN, QUANTUM ADDITION HAS BEEN DECIDED AGAINST ASSESSEE. ON OTHER HAND LEARNED AUTHORIZED REPRESENTATIVE SUPPORTED THE ORDER OF CIT(A). I T A NO. 1 0 6 /R / 1 1 & ITA NO. 18 /R/1 2 , A.Y.0 1 - 0 2 [ IT O VS. SHRI MADHAVRAV H. FICHADIA ] PAGE 3 3 . 1 AFTER GOING THROUGH RIVAL SUBMISSIONS AND MATERIAL ON RECORD, WE FIND THAT ASSESSEE IS IN BUSINESS OF MANUFACTURING AND TRADING OF GOLD AND SILVER ORNAMENTS. THE BRIEF FACTS OF THE CASE ARE THAT THERE WAS A THEFT OF GOLD ORNAMENTS ON 16.06.2000 DURING ACCOUNTING PERIOD RELEVANT TO A.Y. 2001 - 02. ON THE BASIS OF NEWSPAPER REPORT INQUIRY WAS CONDUCTED BY INVESTIGATION WING OF INCOME TAX DEPARTMENT. ASSESSEE HAD DISCLOSED RS.12,82,442/ - IN ADDITION TO REGULAR INCOME TO CURRENT YEAR IN STATEMENT RECORDED ON 04.09.2000 BY DDIT. RETURN WAS FILED ON 31.07.2001 AND INCOME WAS DISCLOSED BEFORE DDIT , WAS DECLARED IN THE RETURN OF INCOME. THE RETURN WAS FILED AT LOSS OF RS.18,18,610/ - . DURING COURSE OF ASSESSMENT PROCEEDING ON 22.09.2002 AND 25.11.2002, ASSESSEE AGREED TO IGNORE THE LOSS OF RS.18,18,610/ - AND ASSESSMENT OF INCOME AT NIL SUBJECT TO T HE CONDITION THAT N O PENALTY SHOULD BE LEVIED. IN ORDER TO BRING INCOME TO NIL, ASSESSING OFFICER MADE CERTAIN ADDITIONS. ASSESSING OFFICER MENTIONED THAT ADDITIONS WERE MADE ON AGREED BASIS. THUS, LOSS INCOME WAS REDUCING TO NIL. HOWEVER, PENALTY WAS LEVIED, WHICH WAS DELETED BY CIT(A). AS STATED ABOVE, ADDITIONS HAVE BEEN MADE ON AGREED BASIS, THERE IS NO FINDING OF ANY CONCEALMENT OF ASSESSING OFFICER IN PARA 3 OF ASSESSMENT ORDER. ASSESSING OFFICER HAS GIVEN CATEGORY FINDING THAT LEARNED AUTHORIZE D REPRESENTATIVE OF ASSESSEE SUBMITTED THAT ASSESSEE HAS GIVEN ITS CONSENT THAT TOTAL LOSS DECLARED AT RS.18,18,610/ - HAS TO BE IGNORED AND TOTAL INCOME HAS TO BE TAKEN AT NIL, SUBJECT TO NON - LEVY OF PENALTY. ASSESSING OFFICER HAS IGNORED THIS AND MADE AD DITIONS AND ALSO INITIATED PENALTY U/S.271(1)(C). ASSESSEE HAS PRODUCED ALL THE EVIDENCES BEFORE ASSESSING OFFICER BUT HE HAS NOT TAKEN COGNIZANCE OF SAME WHICH IS NOT JUSTIFIED. I T A NO. 1 0 6 /R / 1 1 & ITA NO. 18 /R/1 2 , A.Y.0 1 - 0 2 [ IT O VS. SHRI MADHAVRAV H. FICHADIA ] PAGE 4 ASSESSEE HAS SUBMITTED THE COPY OF FIR, COPIES OF LETTERS DATED 02.09.2002, 25.11.2002, 26.12.2002, COPY OF PROFIT AND LOSS ACCOUNT, BUT ASSESSING OFFICER HAS NOT CONSIDERED THE SAME AND FINALLY ASSESSED INCOME HAS BEEN DETERMINED AT RS.NIL. THERE IS NOTHING ON RECORD, EXCEPT, CONSENT FOR REDUCING THE LOSS TO NIL TO ESTABLISH TH E CASE OF CONCEALMENT TO FILE INACCURATE PARTICULARS OF INCOME SO AS TO ATTRACT THE PROVISIONS OF SECTION 271(1)(C). IN FACTS AND CIRCUMSTANCES, ASSESSING OFFICER WAS NOT JUSTIFIED IN LEVYING PENALTY. SAME HAS BEEN RIGHTLY DELETED BY CIT(A). WE UPHOLD T HE SAME. 3.2 AS A RESULT, APPEAL FILED BY REVENUE IS DISMISSED. 4 . ITA NO . 18/RJT/12 FOR A.Y. 2001 - 02 FILED BY ASSESSEE. ASSESSEE HAS NOT PRESSED THIS APPEAL. SO, THIS APPEAL IS DISMISSED AS NOT PRESSED. 5 . AS A RESULT, REVENUE S AND ASSESSEE S APP EALS ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE 29 TH DAY OF MA Y , 201 5 . SD/ - SD/ - (N. S. SAINI) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER RAJKOT : DATED 29 /0 5 /2015 TRUE COPY S K SINHA COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, RAJKOT 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT, RAJKOT