The ITO, Ward-1(1), Ahmedabad V. Shri Valibhai Khanbhai Mankad, Ahmedabad

ITA 1960/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 85752 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 24-02-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 08-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: A C SHAH AR
• Keywords: Non-deduction of tax
• Section: 133A; 2

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ ././ ./ ITA NO. 1960/AHD/2011 / // / ASSESSMENT YEAR: 2006-07 ITO WARD 1(1), AHMEDABAD VS SHRI VALIBHAI KHANBHAI MANKAD PROP. ABAD ROADWAYS, 35-A, TASLIM SOCIETY, NR. BIBI TALAV, VATVA, AHMEDABAD PAN : AFAPM 0480 P / // / (APPELLANT) !' !' !' !' / // / (RESPONDENT) REVENUE BY : SHRI SUBHASH BAINS, CIT-DR ASSESSEE(S) BY : SHRI A.C. SHAH, AR #$ % &'(/ // / DATE OF HEARING : 24/02/2015 )* % &'( / // / DATE OF PRONOUNCEMENT: 27/02/2015 +, +, +, +,/ // / O R D E R PER BENCH : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-VI, AHMEDABAD DATED 09.06.2011 FOR THE ASSESSMENT YEAR 2006-07. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN DELETIN G THE PENALTY U/S 271(1)(C) AMOUNTING TO RS.2,81,24,512/-. 3. BRIEFLY STATED FACTS ARE THAT ASSESSMENT U/S 143 (3) OF THE INCOME-TAX ACT (HEREINAFTER REFERRED TO AS 'THE ACT') WAS FRAM ED PERTAINING TO ASSESSMENT YEAR 2006-07 VIDE ORDER DATED 26/12/2008 . WHILE FRAMING THE ASSESSMENT, THE ASSESSING OFFICER MADE VARIOUS DISA LLOWANCES AND ADDITIONS. THE ASSESSING OFFICER, WHILE FRAMING TH E ASSESSMENT, ALSO INITIATED THE PENALTY PROCEEDINGS. SUBSEQUENTLY, T HE PENALTY WAS IMPOSED ITA NO 1960/AHD/2011 ITO V. VALIBHAI KHANBHAI MANKAD FOR AY 2006-07 2 U/S 271(1)(C) OF THE ACT VIDE ORDER DATED 17.03.201 1. AGAINST THE AFORESAID PENALTY ORDER, THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A) WHO, AFTER CONSIDERING THE SUBMISSIONS, ALLOWED THE APPEAL AND DIRECTED THE ASSESSING OFFICER TO DELETE THE PENALTY. AGGRIEVED BY THE AFO RESAID ORDER OF THE LD. CIT(A), THE REVENUE IS AN APPEAL BEFORE US. 4. THE LD. CIT-DR SUBMITTED THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN DELETING THE PENALTY IMPOSED U/S 271(1)(C) OF THE A CT. HE SUBMITTED THAT ADMITTEDLY A SURVEY OPERATION U/S 133A OF THE ACT W AS CONDUCTED AT THE BUSINESS PREMISES OF THE ASSESSEE ON 24.11.2006 AND DURING THE SURVEY OPERATION, THE ASSESSEE OFFERED ADDITIONAL INCOME T OTALING TO RS.41,73,000/-. HE SUBMITTED THAT THE ASSESSEE CANNOT BE ALLOWED TO TAKE THE BENEFIT OF ITS DELIBERATE ACT OF CONCEALING INCOME. HE SUBMITTED THAT HAD THE SURVEY ACTION WAS NOT CONDUCTED, THE INCOME WOULD HAVE BEE N ESCAPED ASSESSMENT. 5. ON THE CONTRARY, THE LD. COUNSEL FOR THE ASSESSE E SHRI A.C. SHAH VEHEMENTLY ARGUED THAT THE ORDER OF THE CIT(A) IS J USTIFIED AND HE SUBMITTED THAT THE PENALTY WAS IMPOSED ON ADDITION OF RS. 7,93,34,193/- AND THE INCOME OFFERED FOR TAXATION AMOUNTING TO RS.41, 73,000/-, TOTALING TO RS.8,41,96,458/-. HE SUBMITTED THAT OUT OF THESE A DDITIONS, THE ADDITION MADE ON ACCOUNT OF NON-PAYMENT OF TDS AMOUNTING TO RS.7,93,34,193 HAS BEEN DELETED BY THE HONBLE ITAT IN ITA NO.2228/AHD /2009 VIDE ORDER DATED 29.04.2011 AND IN RESPECT OF OTHER ADDITIONS, PENALTY HAS BEEN DELETED ON THE BASIS THAT THE ASSESSEE HAS DISCLOSED THE SA ME IN HIS ORIGINAL RETURN. THEREFORE, THERE WAS NO CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME BY THE ASSESSEE . 6. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND MATERIAL AVAILABLE ON RECORD. THE FACTUM OF DELETION OF ADDITION IN RESPECT OF NON-DEDUCTION OF TAX BY THE ASSESSEE IS NOT ITA NO 1960/AHD/2011 ITO V. VALIBHAI KHANBHAI MANKAD FOR AY 2006-07 3 CONTROVERTED BY THE LD. CIT-DR. THEREFORE, WE DO NO T SEE ANY REASON TO INTERFERE WITH THE ORDER OF THE LD. CIT(A) DELETING THE PENALTY ON THIS AMOUNT. FURTHER, WE FIND THAT THE FACT THAT THE PE NALTY IS LEVIED ON THE AMOUNT WHICH WAS REFLECTED IN THE ORIGINAL RETURN A S INCOME. THE LD. CIT(A) HAS FOLLOWED THE DECISION OF THIS BENCH OF THE TRIB UNAL RENDERED IN THE CASE OF DCIT VS. DR. SATISH B GUPTA (42 SOT 48)(AHD). L D. CIT-DR HAS CONTENDED THAT THE CIT(A) FAILED TO APPRECIATE THE FACT THAT THE ADDITIONAL INCOME AMOUNTING TO RS.41,73,000/- WAS DECLARED IN CONSEQUENCE TO THE SURVEY ACTION BY THE REVENUE. HOWEVER, IT IS NOT D ISPUTED BY THE LD. CIT- DR THAT THE ASSESSEE HAS DECLARED THIS INCOME IN HI S ORIGINAL RETURN OF INCOME, ALTHOUGH IT WAS BELATED RETURN. AS PER PRO VISIONS OF SECTION 271(1)(C) OF THE INCOME-TAX ACT, PENALTY CAN BE IMP OSED IF THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME OR FURNISHING T HE INACCURATE PARTICULARS OF SUCH INCOME. THERE IS NO DISPUTE WITH REGARD TO THE FACT THAT THE PARTICULARS OF INCOME ARE REFLECTED IN THE RETURN O F INCOME. IT IS NOT THE CASE OF THE REVENUE THAT THE RETURNS OF INCOME FILED WER E INVALID. IN FACT, THE ASSESSING OFFICER HAS PROCEEDED ON THE BASIS OF THE RETURNS FILED BY THE ASSESSEE AND PARTICULARS FURNISHED THEREIN. THEREFO RE, WE DO NOT SEE ANY GOOD REASON TO INTERFERE WITH THE ORDER OF THE LD. CIT(A) WHICH IS HEREBY CONFIRMED. THUS, THIS GROUND OF APPEAL OF THE REVEN UE IS REJECTED. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS REJE CTED. ORDER PRONOUNCED IN THE COURT ON 27 TH FEBRUARY, 2015 AT AHMEDABAD. SD/- SD/- G.D. AGRAWAL VICE-PRESIDENT (AZ, LZ & BZ) (KUL BHARAT) JUDICIAL MEMBER AHMEDABAD; DATED 27/02/2015 BIJU T., PS ITA NO 1960/AHD/2011 ITO V. VALIBHAI KHANBHAI MANKAD FOR AY 2006-07 4 +, % !&- .+-& +, % !&- .+-& +, % !&- .+-& +, % !&- .+-&/ COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT. 3. & #/ / CONCERNED CIT 4. #/ ( ) / THE CIT(A) - VI, AHMEDABAD 5. -23 !& , , / DR, ITAT, AHMEDABAD 6. 34 5$ / GUARD FILE . +,# +,# +,# +,# / BY ORDER, TRUE COPY 6 66 6/ // / 7 7 7 7 ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD