Shri Sunilkumar N.Agrawal, Ahmedabad V. The Income tax Officer,Ward-6(1), Ahmedabad

ITA 2113/AHD/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 85714 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 13-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Assessee Lawyers: KETAN H SHAH
• Keywords: Unexplained investment
• Section: 143(3); 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH BEFORE: SHRI SHAILENDRA KR. YADAV, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTAN T MEMBER SHRI SUNILKUMAR N. AGRAWAL, C/O. KETAN H. SHAH, ADVOCATE, 903, SAPPHIRE COMPLEX, C.G. ROAD, NAVRANGPUR, AHMEDABAD PAN: AGEPA 2433 K (APPELLANT) VS INCOME TAX OFFICER, WARD 6(1) AHMEDABAD-380009 (RESPONDENT) ASSESSEE BY: SHRI KETAN H. SHAH, A.R . REVENUE BY: SHRI M.K. SINGH, SR. D.R. DATE OF HEARING : 23-02-2015 DATE OF PRONOUNCEMENT : 26-02- 2015 / ORDER PER : ANIL CHATURVEDI, ACCOUNTANT MEMBER:- THIS IS THE ASSESSEES APPEAL AGAINST THE ORDER OF LD. CIT(A)-XI, AHMEDABAD DATED 10-07-2013 FOR A.Y. 2006-07. ITA NO. 2113/AHD/2013 ASSESSMENT YEAR 2006-07 I.T.A NO. 2113/AHD/2013 A.Y. 2006-07 PAGE NO SUNILKUMAR N. AGRAWAL VS. ITO 2 2. THE FACTS AS CULLED OUT FROM THE MATERIAL ON RE CORD ARE AS UNDER. 3. ASSESSEE IS AN INDIVIDUAL STATED TO BE DERIVING INCOME FROM SOFTWARE COMMISSION. ASSESSEE FILED HIS RETURN OF INCOME FO R A.Y. 2006-07 ON 23- 06-2006 DECLARING TOTAL INCOME AT RS. 1,10,361/-. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER THE ASSESSMENT WAS FRAM ED U/S. 143(3) VIDE ORDER DATED 24-12-2008 AND THE TOTAL INCOME WAS DET ERMINED AT RS. 17,85,360/- BY MAKING ADDITION OF RS. 16,75,000/- A S UNEXPLAINED INVESTMENT U/S. 69 OF THE ACT. ON THE AFORESAID AD DITION OF RS. 16,75,000/- MADE, AO LEVIED PENALTY U/S. 271(1)(C) OF RS. 5,44, 851/- VIDE ORDER DATED 30.03.2012. AGGRIEVED BY THE AFORESAID ORDER OF AO , ASSESSEE CARRIED THE MATTER BEFORE CIT(A) WHO VIDE ORDER DATED 10/07/201 3 DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWIN G GROUNDS:- IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED ASSESSING OFFICER/COMMISSIONER OF INCOME TA X (APPEALS) ERRED - 1. IN NOT APPRECIATING THE WRITTEN SUBMISSION S MADE BEFORE HIM DATED 19.06.2013 WHEREIN IT WAS INTER ALIA CONTENDE D THAT THE PENALTY ORDER U/S. 271(1)(C) IS TO BE KEPT IN ABEYA NCE TILL THE OUTCOME OF THE ITAT DECISION IN QUANTUM PROCEEDINGS. 2. WITHOUT PREJUDICE, IT IS PRAYED THAT AS CON TENDED, THE INCOME SOUGHT TO BE EVADED HAS ALREADY BEEN TAXED IN THE H ANDS OF BROTHER SHRI RAJESHKUMAR AGARWAL, AND AS SUCH, IT IS AMOUNT TO DOUBLE TAXATION, THEREFORE, THE PENALTY IS NOT LEVIABLE AN D LIABLE TO BE DELETED. 3. EVEN OTHERWISE, IN VIEW OF THE FACTS AND C IRCUMSTANCES OF THE CASE, IT IS PRAYED THAT THERE IS NO JUSTIFICATION F OR INITIATING AS WELL AS LEVYING PENALTY U/S. 271(1)(C), AND THEREFORE, THE PENALTY LEVIED MAY PLEASE BE CANCELLED. I.T.A NO. 2113/AHD/2013 A.Y. 2006-07 PAGE NO SUNILKUMAR N. AGRAWAL VS. ITO 3 4. BEFORE US, LD. AR SUBMITTED THAT THOUGH ASSESSEE HAS RAISED VARIOUS GROUNDS BUT THE ONLY ISSUE IS WITH RESPECT TO LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT. 5. BEFORE US, LD. AR SUBMITTED THAT AGAINST THE QUA NTUM ADDITION MADE AND CONFIRMED BY CIT(A), ASSESSEE HAD PREFERRED APP EAL BEFORE TRIBUNAL. HONBLE TRIBUNAL VIDE ORDER IN ITA NO. 1011/AHD/201 1 ORDER DATED 12-12- 14 HAD SUBSTANTIALLY DELETED THE ADDITIONS AND HAD ONLY CONFIRMED THE ADDITIONS OF RS. 1,16,000/-. HE THEREFORE SUBMITTE D THAT WHEN SUBSTANTIAL ADDITIONS HAVE BEEN DELETED, THERE IS NO CASE OF LE VY OF PENALTY. HE FURTHER SUBMITTED THAT AO HAD LEVIED THE PENALTY ON THE ENT IRE ADDITIONS OF RS. 16.75 LACS BUT SINCE SUBSTANTIAL ADDITIONS HAVE BEE N DELETED, PENALTY U/S. 271(1)(C) COULD NOT HAVE BEEN LEVIED ON THE ENTIRE ADDITIONS MORE SO WHEN THE ASSESSEE HAD SUBMITTED THE EXPLANATION AND FURT HER IT IS A SETTLED LAW THAT PENALTY PROCEEDINGS AND ASSESSMENT PROCEEDINGS ARE DISTINCT AND SEPARATE. HE THEREFORE SUBMITTED THAT THE PENALTY L EVIED BY THE AO BE DELETED. LD. DR ON THE OTHER HAND SUPPORTED THE OR DER OF AO AND CIT(A). 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT AO HAD MADE AN A DDITION OF RS. 16.75 LACS AND THE CO-ORDINATE BENCH OF TRIBUNAL HAS DELE TED MOST OF THE ADDITIONS AND ONLY UPHELD THE ADDITION OF RS. 1,16, 000/- BUT HOWEVER PENALTY U/S. 271(1)(C) HAS BEEN LEVIED ON THE ENTIR E ADDITION MADE BY AO. WITH RESPECT TO THE ADDITIONS THAT HAVE BEEN CONFIR MED BY THE CO-ORDINATE BENCH OF TRIBUNAL, WE FIND THAT BEFORE TRIBUNAL, AS SESSEE HAD FILED CONFIRMATION LETTERS FOR 3 CREDIT ENTRIES, BUT HOWE VER THE ADDITION WAS CONFIRMED BECAUSE ASSESSE COULD NOT PROVE BEYOND DO UBT THE ENTRIES. IT IS WELL SETTLED THAT THE PARAMETERS OF JUDGING THE JUS TIFICATION FOR ADDITION MADE IN THE ASSESSMENT CASE OF THE ASSESSEE IS DIFF ERENT FROM THE PENALTY I.T.A NO. 2113/AHD/2013 A.Y. 2006-07 PAGE NO SUNILKUMAR N. AGRAWAL VS. ITO 4 IMPOSED ON ACCOUNT OF CONCEALMENT OF INCOME OR FILI NG INACCURATE PARTICULARS OF INCOME AND THAT CERTAIN DISALLOWANCE /ADDITION COULD LEGALLY BE MADE IN THE ASSESSMENT PROCEEDING ON THE PREPOND ERANCE OF PROBABILITIES, BUT NO PENALTY COULD BE IMPOSED U/S 271(1)(C) OF THE ACT ON THE PREPONDERANCE OF PROBABILITIES AND REVENUE HAS TO PROVE THAT THE CLAIM BY THE ASSESSES WAS NOT GENUINE OR WAS INFLAT ED TO REDUCE ITS TAX LIABILITY. CONSIDERING THE TOTALITY OF THE AFORESAI D FACTS, AND RELYING ON THE DECISIONS CITED BY THE LD AR, WE ARE OF THE VIEW TH AT IN THE PRESENT CASE NO PENALTY U/S 27L(1)(C) OF THE ACT IS LEVIABLE AND THEREFORE WE DIRECT ITS DELETION. THUS THIS GROUND OF ASSESSEE IS ALLOWED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE SD/- SD/- (SHAILENDRA KR. YADAV) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 26/02/2015 AK / COPY OF ORDER FORWARDED TO:- 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,