Gaurishankar Jokhubhai Barud, Bhavnagar V. The ACIT.,Circle-1, Bhavnagar

ITA 201/AHD/2010

• Counselvise Citation: 20120514 RSA 2010
• Duration Of Justice: 2 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-08-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 31-07-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 21-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL KUMAR
• Assessee Lawyers: M K PATEL
• Keywords: Unexplained cash credit; Gift
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH AHMEDABAD BEFORE SHRI G.C.GUPTA , VICE PRESIDENT AND SHRI T.R. MEENA, ACCOUNTANT MEMBER ITA NO. 201/AHD/2010 ASSESSMENT YEAR :2004-05 GAURISHANKAR JUKHUBHAI BARUD, PLOT NO. C-1792, PATEL SOCIETY, VRINDAVAN PARK, KALIYABID, BHAVNAGAR V/S . THE ASSTT. COMMISSIONER OF INCOME-TAX, CIRCLE 1, BHAVNAGAR PAN NO. ACHPB7434N (APPELLANT) .. (RESPONDENT) BY APPELLANT SHRI M. K. PATEL, A.R. /BY RESPONDENT SHRI RAHUL KUMAR, SR.D.R. /DATE OF HEARING 31.07.2012 /DATE OF PRONOUNCEMENT 09.08.2012 O R D E R PER : T.R.MEENA, ACCOUNTANT MEMBER THIS IS AN APPEAL AT THE BEHEST OF THE ASSESSEE WHI CH HAS EMANATED FROM THE ORDER OF CIT(A)-XX, AHMEDABAD, ORDER DATED 15.10.2009 FOR ASSESSMENT YEAR 2004-05. THE SOLE GROUND OF APPEAL IS AGAINST CONFIRMING THE PENALTY LEVIED U/S. 271(1)(C) OF THE IT ACT FOR A.Y. 04-05. 2. THE BRIEF FACT OF THE CASE IS THAT LD. A.O. MADE ADDITION UNDER THE FOLLOWING HEADS IN ASSESSMENT ORDER U/S 143(3) DATE D 26.12.2006 AS UNDER: AGRICULTURE INCOME TREATED AS INCOME FROM UNDISCLOS ED SOURCE 687981 UNEXPLAINED GIFT 200000 UNEXPLAINED CASH CREDITS 152500 ITA NO. 201/AHD/2010 A.Y. 04-05 PAGE 2 THE LD. A.O. INITIATED PENALTY PROCEEDING U/S. 271( 1)(C) OF THE IT ACT FOR FURNISHING INACCURATE PARTICULARS OF INCOME IN ASSE SSMENT ORDER. THE ASSESSEE FILED SECOND APPEAL BEFORE CIT(A) WHO HAS CONFIRMED THE ADDITION ON ACCOUNT OF UNEXPLAINED GIFT OF RS.2,00,000/- AND UNEXPLAINED CASH CREDITS OF RS.1,52,500/-. THE LD. CIT(A) ALSO REDUCED THE UNDISCLOSED INCOME WHICH WAS CLAIMED BY THE ASSESSEE AS AN AGRICULTURE INCOM E OF RS.6,87,981/- WAS HELD AS AGRICULTURE INCOME RS.4,50,000/- AND UNDISC LOSED SOURCE OF INCOME TO THE TUNE OF RS.2,37,981/-. THE LD. A.O. IMPOSED TH E PENALTY U/S. 271(1)(C) OF THE IT ACT ON THIS GROUND THAT THE APPELLANT HAD FU RNISHED INACCURATE PARTICULARS OF INCOME. THE LD. A.O. IMPOSED PENALT Y OF RS.1,94,860/- BEING 100% OF TAX SOUGHT TO BE EVADED U/S. 271(1)(C) OF T HE IT ACT FOR FURNISHING INACCURATE PARTICULARS OF THE INCOME AND CONCEALMEN T OF INCOME. 3. BEING AGGRIEVED BY THE PENALTY ORDER, THE APPELL ANT FILED THE SECOND APPEAL BEFORE THE CIT(A)-XX, AHMEDABAD WHO HAD ADJU DICATED THE ISSUE AND CONFIRMED THE PENALTY ON ADDITION OF RS.1,52,500/- U/S 68 OF THE IT ACT AND REMAINING ADDITIONS I.E. UNDISCLOSED INCOME ON ACCO UNT OF AGRICULTURE INCOME AND GIFT WAS DELETED BY HIS ORDER DATED 15.10.2009. 4. THE ASSESSEE FILED SECOND APPEAL BEFORE THE ITAT AND LD. COUNSEL FOR THE APPELLANT CONTENDED THAT THE ORIGINAL ADDITION UNDER THE HEAD AGRICULTURE INCOME HAS BEEN REDUCED BY RS.37,981/- AND ONLY UND ISCLOSED INCOME ON ACCOUNT OF AGRICULTURE INCOME WAS CONFIRMED BY THE HONBLE ITAT CO - ORDINATE A BENCH, AHMADABAD IN ITA NO.257 / AHD / 2008 FOR A.Y. 04-05 AT ITA NO. 201/AHD/2010 A.Y. 04-05 PAGE 3 RS.2,00,000/- . THE QUANTUM ADDITION I.E. ON GIFT AS WELL AS CASH CREDIT U/S 68 HAS BEEN RESTORED BACK TO THE CIT(A) FOR PASSING TH E REASONED ORDER. THE FINDINGS OF CO-ORDINATE A BENCH, AHMADABAD, IS RE PRODUCED AS UNDER:- 5. AFTER HEARING THE PARTIES, WE RESTORE THE MATTE R TO THE FILE OF LD. CIT(A) FOR PASSING A REASONED ORDER AFTER GIVING FI NDING ON EACH ITEM OF GIFT AND CREDIT AS TO THE IDENTITY, CREDITWORTHINES S AND GENUINENESS OF THE TRANSACTIONS PARTICULARLY KEEPING IN MIND THE L ATEST AUTHORITY OF HON. SUPREME COURT IN CIT VS. P. MOHAN KALAS CASE (2007 ) 291 ITR 278 (SC). AS A RESULT, THESE TWO ISSUES ARE SET ASIDE TO THE FILE OF LD. CIT(A). THE ORDER HAS BEEN RESTORED BACK TO THE CIT(A) ON T WO ADDITIONS, ON WHICH, THE LD. A.O. IMPOSED THE PENALTY. THE PENALTY ORDE R OF THE LD. A.O. HAS BECOME INFRUCTUOUS. THUS, WE HAVE CONSIDERED VIEW THAT THE PENALTY ORDER OF THE A.O. IS NOT SURVIVED. ACCORDINGLY, THE APPEAL IS ALLOWED IN FAVOUR OF THE ASSESSEE. 5. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 09.08.2012 SD/- SD/- (G.C.GUPTA) (T.R. MEENA) VICE PRESIDENT ACCOUNTANT MEMBER TRUE COPY S.K.SINHA ! ! ! ! '! '! '! '! / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. '(' ) * / CONCERNED CIT 4. *- / CIT (A) 5. !./ ), ) , 12( / DR, ITAT, AHMEDABAD 6. /45 67 / GUARD FILE. BY ORDER/ , 8/ 1 ': ITA NO. 201/AHD/2010 A.Y. 04-05 PAGE 4 ) , 12( ; STRENGTHEN PREPARATION & DELIVERY OF ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 07.08.2012 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE XXX 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 07.08.2012 4) DATE OF CORRECTION XXX 5) DATE OF FURTHER CORRECTION XXX 6) DATE OF INITIAL SIGN BY MEMBERS 09.08.2012 7) ORDER UPLOADED ON 09.08.2012 8) ORIGINAL DICTATION PAD HAS BEEN ENCLOSED IN THIS FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 09.08.2012