The ACIT, Circle-3, Vadodara V. Chandrikaben R. Patel, Dharmaj

ITA 2049/AHD/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 6296 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 10-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Assessee Lawyers: P M MEHTA
• Keywords: Business income

Judgement Text

, CKH CKHCKH CKH IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER !# I.T.A. NO.2049/AHD/2015 ( / ASSESSMENT YEAR : 2008-09) DCIT, CIRCLE 1(3), 3 RD FLOOR, ROOM NO.302, AAYKAR BHAVAN, RACE COURSE CIRCLE, VADODARA 390 007 # VS. CHANDRIKABEN R. PATEL, C/O. PRANNATH PETROLEUM, NR. JALARAM MANDIR, DHARMAJ CHOWKDI, DHARMAJ- 388 430 $ # % & # PAN/GIR NO. : AERPP 3062 N ( !$' / APPELLANT ) .. ( ($' # RESPONDENT ) !$') # APPELLANT BY : MS. SONIA KUMAR, SR. D.R. ($'*) / RESPONDENT BY : SHRI P. M. MEHTA, A.R. + ,*-. / DATE OF HEARING 17/01/2018 /012*-. / DATE OF PRONOUNCEMENT 22/01/2018 3# O R D E R PER MAHAVIR PRASAD, JUDICIAL MEMBER : THIS IS AN APPEAL BY THE DEPARTMENT AGAINST THE ORD ER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-5, VADODARA DA TED 20/03/2015 FOR DELETING THE PENALTY OF RS.46,59,400/- LEVIED U /S.271(1)(C) OF THE INCOME TAX ACT FOR ASSESSMENT YEAR (A.Y.) 2008-09, ON THE FOLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE PENALTY OF RS. 46,59,400/- LEVIED U/S.271(1)(C) OF THE I.T. ACT BY NOT APPRECI ATING THE FACT ITA NO.2049/AHD /2015 DCIT VS. CHANDRIKABEN R. PATEL A.Y. 2008-09. - 2 - THAT CHANGING THE HEAD OF INCOME WAS A DELIBERATE A TTEMPT OF ASSESSEE TO REDUCE THE TAX LIABILITY. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI ALS ON RECORD ARE AS UNDER:- IN THIS CASE, THE ASSESSEE FILED HER RETURN OF INC OME ON 31 ST JULY, 2008 DECLARING TOTAL INCOME OF RS.1,44,94,890/-. TH E RETURN OF INCOME WAS PROCESSED U/S.143(1) OF THE ACT. ON SELECTION O F SCRUTINY, THE SAME WAS ASSESSED U/S.143(3) WAS COMPLETED ON 22/12/2010 AT AN INCOME OF RS.1,44,94,890/-. HOWEVER, THE AO HAS TREATED THE S HORT TERM CAPITAL GAIN ON RS.1,37,07,905/- OFFERED BY THE ASSESSEE AS BUSINESS INCOME AND PENALTY U/S.271(1)(C) WAS INITIATED FOR FURNISHING INACCURATE PARTICULARS OF INCOME. THEREAFTER, THE ASSESSEE FILED AN APPEAL BE FORE THE LD. CIT(A) WHO DELETED THE PENALTY. 3. NOW DEPARTMENTS APPEAL IS BEFORE US. 4. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IMP UGNED ORDER. LD. AR CITED AN ORDER IN ITA NO.2483/AHD/2011 FOR A SST. YEAR 2008-09. IN ASSESSEE QUANTUM CASE, CO-ORDINATE BENCH RESTORE D THE QUANTUM MATTER TO THE FILE OF THE AO WITH FOLLOWING OBSERVA TION: THEREFORE, WE FEEL THAT INTEREST OF JUSTICE WOULD BE MET IN CASE THE ISSUE RAISED IN THE PRESENT CASE IS ALSO REMITTED B ACK TO THE ASSESSING OFFICER FOR A FRESH DECISION IN THE LIGHT OF HIS CO NSEQUENTIAL ORDER BEING PASSED IN EARLIER ASSESSMENT YEARS. WE ORDER ACCORD INGLY. THE ASSESSEES GROUNDS STANDS SET ASIDE TO THE FILE OF ASSESSING OFFICER. 6. THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO.2049/AHD /2015 DCIT VS. CHANDRIKABEN R. PATEL A.Y. 2008-09. - 3 - 5. SINCE IN QUANTUM APPEAL, CO-ORDINATE BENCH HAS R ESTORED THE MATTER BACK TO THE FILE OF THE AO. THEREFORE, WE ALSO SEND THIS PENALTY MATTER BACK TO THE FILE OF THE AO TO DECIDE AFRESH ALONGWI TH QUANTUM MATTER. 6. IN THE RESULT, APPEAL OF THE DEPARTMENT IS DISMI SSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 22/01/2018 SD/- SD/- ( ) 4 5 ( N.K. BILLAIYA ) ( MAHAVIR PRASAD ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 22/01/2018 PRITI YADAV, SR. PS !'# $#! # COPY OF THE ORDER FORWARDED TO : 1. !$' / THE APPELLANT 2. ($' / THE RESPONDENT. 3. 67- + 8- / CONCERNED CIT 4. + 8- 4!5 / THE CIT(A)-5, VADODARA. 5. 9:;-67 !.!672 ! / DR, ITAT, AHMEDABAD 6. ;<=, # GUARD FILE. % & / BY ORDER, (9-- //TRUE COPY// '/& () ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD