Shri Vikramkumar Sardarmal Shah, Ahmedabad V. The Income Tax Officer, Ward-3(3), Ahmedabad

ITA 188/AHD/2016

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9567 (ITAT-AHMEDABAD)
• Duration Of Justice: 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 25-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: D J SHAH

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI B.P. JAIN, ACCOUNTANT MEMBER ./ ITA.NO.188/AHD/2016 / ASSTT. YEAR: 2006-2007 VIKRAMKUMAR SARDARMAL SHAH A/401, ANMOL TOWR NR. RAJASTHAN HOSPITAL SHAHIBAUG AHMEDABAD. PAN : ALXPS 7634 J VS ITO, WARD-3(3) AHMEDABAD. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE BY : SHRI D.J. SHAH REVENUE BY : SHRI PRAJNA PARAMITA, SR.DR / DATE OF HEARING : 16/02/2016 / DATE OF PRONOUNCEMENT: 17/02/2016 $%/ O R D E R THIS APPEAL OF THE ASSESSEE AROSE FROM ORDER OF THE LD.CIT(A)-6, AHMEDABAD DATED 16.11.2015 FOR THE ASSTT.YEAR 2006- 2007. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. WHETHER, ON FACTS OF THE CASE AND AS PER PREVAI LING JUDICIAL PRONOUNCEMENTS, LD.CIT(A) HAS ERRED IN UPHOLDING TH E PENALTY U/S.271(1)(C) OF THE ACT ON ADDITION OF RS.5,59,781 /- WHEN LD.AO HAS NOT ARRIVED ON ANY FINDING THAT PENALTY IS LEVIED F OR FURNISHING INACCURATE PARTICULARS OR FOR CONCEALMENT OF INCOME ? 2. WHETHER, ON FACTS AND IN CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD.CIT(A) HAD ERRED IN UPHOLDING THE PENALTY U/ S.271(1)(C) OF THE ACT ON ADDITION OF RS.5,59,781/- ? ITA NO.188/AHD/2016 2 3. THE ISSUE IN THE PRESENT APPEAL IS THAT THE LD.A O HAS LEVIED PENALTY ON ACCOUNT OF CONCEALMENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME UNDER SECTION 271(1)(C) OF THE ACT, WHICH HA S BEEN CONFIRMED BY THE LD.CIT(A). 4. THE LD.AR POINTED OUT THAT IN THE PENALTY ORDER, AT THE LAST PAGE, THE AO HAS NOT APPLIED HIS MIND, AS TO WHETHER THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT HAS BEEN LEVIED FOR CONCEALMENT OF INCOME O R FURNISHING OF INACCURATE PARTICULARS OF SUCH INCOME. PARA-9 OF THE PENALTY ORDER WAS READ BY THE LD.AR. HE ALSO INVITED OUR ATTENTION TO THE FINDIN G OF THE AO IN PARA-6, AT LAST PAGE OF THE ASSESSMENT ORDER, WHERE THE PENALTY UN DER SECTION 271(1)(C) OF THE ACT WAS INITIATED FOR PROVIDING INACCURATE PART ICULARS OF INCOME AND CONCEALMENT OF INCOME, AND NO APPLICATION OF MIND W AS MADE BY THE AO WHETHER THE PENALTY HAS BEEN LEVIED FOR CONCEALING OF INCOME OR FOR FURNISHING INACCURATE PARTICULARS OF SUCH INCOME. HE RELIED UPON THE JUDGMENT OF HONBLE GUJARAT HIGH COURT JUDGMENT IN THE CASE OF CIT VS. WHITEFORD INDIA LTD, 38 TAXMMAN.COM 15 (GUJ) ANNEXE D AT PAGE NO.11 TO 13 OF THE PAPER BOOK IN THIS REGARD. 5. THE LD.DR, ON THE OTHER HAND, ARGUED THAT THE AS SESSEE HAS DEPOSITED THE CASH IN LIEU OF SUNDRY DEBTORS REALIZATION AND DELIBERATELY THE ASSESSEE HAS NOT FURNISHED PARTICULARS, AND THEREFORE, THE MATTE R CANNOT BE COVERED BY THE DECISION OF THE HONBLE GUJARAT HIGH COURT CITED BY THE ASSESSEE SUPRA. 6. I HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE M ATERIAL ON RECORD. IT IS EVIDENT FROM THE ORDER OF THE AO IN THE PENALTY ORD ER, IN PARA-9 THAT THE AO HAS LEVIED PENALTY UNDER SECTION 271(1)(C) OF THE A CT FOR CONCEALING THE INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME. AS PER PARA-6 OF THE ASSESSMENT ORDER, THE PENALTY HAS BEEN INITIATE D FOR CONCEALING THE INCOME ITA NO.188/AHD/2016 3 AND FURNISHING INACCURATE PARTICULARS OF SUCH INCOM E, WHICH HAS BEEN CONFIRMED BY THE LD.CIT(A). BUT THERE IS NO CLEAR FINDING RECORDED BY THE AO WHETHER THE ASSESSEE WAS GUILTY OF CONCEALMENT OF I NCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. IN SUCH CASES, T HE PENALTY UNDER SECTION 271(1)(C) OF THE ACT CANNOT BE LEVIED, AS HAS BEEN HELD BY THE HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. WHITEFORD INDIA L TD., (SUPRA). FOLLOWING THE DECISION IN THE CASE OF CIT VS. WHITEFORD INDIA LTD. (SUPRA) AND THE FACTS OF THE PRESENT CASE, THE ORDER PASSED BY THE AO IS LIABLE TO BE STRUCK DOWN, AND IT IS ORDERED ACCORDINGLY. THE IMPUGNED ORDER OF THE LD.CIT(A) IS REVERSED. THUS, ALL THE GROUNDS OF THE APPEAL OF T HE ASSESSEE ARE ALLOWED. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE COURT ON 17 TH FEBRUARY, 2016 AT AHMEDABAD. SD/- ( B.P. JAIN ) ACCOUNTANT MEMBER AHMEDABAD; DATED 17/02/2016