Nazir Haji Ibrahim Kunda, Surat V. The Income tax Officer,Ward-2(1), Surat

ITA 2094/AHD/2009

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 2368 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 25-01-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 01-07-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K N BHATT
• Keywords: Unexplained cash credit
• Section: 271(1)(c); 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : B BENCH : AHMEDABAD (BEFORE HONBLE SHRI G.D. AGRAWAL, V.P.(AZ) & HON'BLE SHRI T.K. SHARMA, J.M. ) I.T.A. NO. 2094/AHD./2009 ASSESSMENT YEAR : 2003-2004 NAZIR HAJI IBRAHIM KUNDA, SURAT -VS.- INCOME TAX OFFICER, WARD-2(1), SURAT (PAN : AASPK 6281 B) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.N. BHATT, A.R. RESPONDENT BY : SHRI K. MADHUSUDAN, SR. D.R. O R D E R PER SHRI T.K. SHARMA, JUDICIAL MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE O RDER DATED 19.05.2009 OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-II, SURAT CONF IRMING THE PENALTY OF RS.2,10,000/- LEVIED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 FOR THE ASSESSMENT YEAR 2003-04. 2. BRIEFLY STATED THE FACTS ARE THAT IN THE ASSESSM ENT ORDER THE ASSESSING OFFICER MADE ADDITION OF RS.7,36,000/- WHICH INCLUDES THE ADDITI ON MADE ON THE BASIS OF UNEXPLAINED CASH CREDITS AMOUNTING TO RS.7,00,000/-. SUBSEQUENTLY, V IDE ORDER DATED 28.03.2008, THE ASSESSING OFFICER LEVIED THE PENALTY UNDER SECTION 271(1)(C) AMOUNTING TO RS.2,10,000/- ON CASH CREDITS AMOUNTING TO RS.7,00,000/-. ON APPEAL, IN THE IMPUG NED ORDER THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) CONFIRMED THE PENALTY OF RS.2, 10,000/- FOLLOWING THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF UOI & OTHERS VS.- DHARMENDRA TEXTILE PROCESSORS REPORTED IN [2008] 306 ITR 277 (SC). AGGRIEVED WITH THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS), THE ASSESSEE IS IN APPEAL BEF ORE THE TRIBUNAL. 3. AT THE TIME OF HEARING BEFORE US, ON BEHALF OF A SSESSEE SHRI K.N. BHATT, LD. COUNSEL APPEARED AND CONTENDED THAT ITAT, RAJKOT BENCH, RAJ KOT (CAMP AT SURAT) VIDE ORDER DATED 18.09.2009 IN I.T.A. NO. 2178/AHD/2006 FOR THE ASSE SSMENT YEAR 2003-04 IN ASSESSEES OWN CASE IN QUANTUM APPEAL RESTORED THE ISSUE REGARDING ADDITION OF RS.7,00,000/- TO THE FILE OF 2 ITA NO. 2094-AHD-2009 ASSESSING OFFICER. PURSUANT TO THE ORDER OF TRIBUNA L, THE ASSESSING OFFICER PASSED AN ORDER ON 02.07.2010 UNDER SECTION 143(3) READ WITH SECTION 2 54, WHEREIN HE DELETED THE ADDITION OF RS.7,00,000/- IN THE LIGHT OF DIRECTION OF ITAT, RA JKOT BENCH, RAJKOT (SUPRA). THE LD. COUNSEL OF THE ASSESSEE ACCORDINGLY SUBMITTED THAT NOW THERE R EMAINS NO BASIS AT ALL FOR LEVYING THE PENALTY FOR CONCEALMENT, THEREFORE, PENALTY OF RS.2,10,000/ - CONFIRMED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IN THE IMPUGNED ORDER BE CANCE LLED. 4. ON THE OTHER HAND, SHRI K. MADHUSUDAN, LD. SR. D .R. APPEARING ON BEHALF OF THE REVENUE COULD NOT CONTROVERT THE AFORESAID SUBMISSIONS MADE BY THE LD. COUNSEL OF THE ASSESSEE. 5. AFTER HEARING BOTH THE SIDES, WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IT IS WELL SETTLED LAW THAT WHERE THE ADDITI ONS MADE IN THE ASSESSMENT ORDER ON THE BASIS OF WHICH PENALTY FOR CONCEALMENT IS LEVIED, ARE DELETE D, THERE REMAINS NO BASIS AT ALL FOR LEVYING PENALTY FOR CONCEALMENT. ADMITTEDLY, THE ADDITION O F RS.7,00,000/- ON THE BASIS OF WHICH PENALTY IS LEVIED HAS BEEN DELETED BY THE ASSESSING OFFICER HIMSELF VIDE ORDER UNDER SECTION 143(3) READ WITH SECTION 254 DATED 02.07.2010. IN VIEW OF THIS, PENALTY OF RS.2,10,000/- LEVIED BY THE ASSESSING OFFICER IS HEREBY CANCELLED. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. THE ORDER WAS PRONOUNCED IN THE COURT ON 25.01.20 11 SD/- SD/- (G.D. AGRAWAL) (T.K. SHARMA ) VICE-PRESIDENT (AZ) JUDICIAL MEMBER DATED : 25/ 01 / 2011 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE (2) THE DEPARTMENT. 3) CIT(A.) CONCERNED, (4) CIT CONCERNED, (5) D.R. , ITAT, AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGI STRAR, ITAT, AHMEDABAD LAHA/SR.P.S.