M/s. Lilaram Manomal & Sons, Baroda V. The Income tax Officer, Ward-5(2), Baroda

ITA 2184/AHD/2005

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 0334 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 29-09-2009
• Assessment Year: 1997-1998
• Appeal Filed On: 07-10-2005
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEETA SHAH
• Section: 274

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B BEFORE SHRI R.V.EASWAR, VICE PRESIDENT AND SHRI D.C.AGRAWAL, ACCOUNTANT MEMBER DATE OF HEARING : 29/09/09 DRAFTED ON: 29/0 9/09 ITA NO.2184/AHD/2005 ASSESSMENT YEAR : 1997-98 M/S.LILARAM MANOMAL & SONS 152, MANGAL BAZAR BARODA VS. THE ITO WARD-5(2) BARODA PAN/GIR NO. : - (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI MANISH J.SHAH RESPONDENT BY: SMT. NEETA SHAH, SR.DR O R D E R PER D.C.AGRAWAL , ACCOUNTANT MEMBER :- THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST T HE ORDER OF THE LEARNED CIT(APPEALS)-V, BARODA DATED 22/07/2005 PASSED FOR ASSESSMENT YEAR 1997-98. 2. THE EFFECTIVE GROUND RAISED BY THE ASSESSEE IN T HIS APPEAL IS AGAINST THE LEVY OF PENALTY OF RS.2,50,876/- U/S.271(1)(C) OF THE I.T. ACT, 1961. ITA NO .2184/AHD/2005 M/S.LILARAM MANOMAL & SONS VS. ITO ASST.YEAR - 1997-98 - 2 - 3. AT THE OUTSET, THE LEARNED AUTHORISED REPRESENTA TIVE OF THE ASSESSEE POINTED OUT THAT THE ITAT AHMEDABAD BENCH A VIDE ITS ORDER DATED 15/02/2008 IN ITA NO.4439/AHD/2003 (IN ASSESSEES O WN CASE) QUASHED THE RE-OPENING PROCEEDINGS BY HOLDING THAT RE-OPENI NG U/S.147/148 OF THE I.T. ACT, 1961 IS NOT VALID. THUS, THE VERY ASSESS MENT WHICH WAS MADE THE BASIS FOR LEVY OF PENALTY BY THE ASSESSING OFFICER AND SO CONFIRMED BY THE LEARNED CIT(APPEALS) DID NOT SURVIVE. 4. SINCE THE VERY BASIS FOR LEVY OF PENALTY DID NOT SURVIVE AS RE-ASSESSMENT PROCEEDINGS WERE QUASHED, THERE IS NO CASE FOR SUSTAINING PENALTY. WE ARE FORTIFIED BY THE DECISION OF HON' BLE RAJASTHAN HIGH COURT IN THE CASE OF CIT VS. COSMOPOLITAN TRADING CORPORA TION (2005) 274 ITR 640 (RAJ.) AND OF HON'BLE SUPREME COURT IN THE CASE OF K.C.BUILDERS VS. ACIT (2004) 265 ITR 560 (SC). ACCORDINGLY PENALTY IS LIABLE TO BE CANCELLED. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED TH E ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RE CORD. RESPECTFULLY FOLLOWING THE AFORESAID DECISIONS, WE QUASH THE PEN ALTY LEVIED BY THE ITA NO .2184/AHD/2005 M/S.LILARAM MANOMAL & SONS VS. ITO ASST.YEAR - 1997-98 - 3 - LEARNED ASSESSING OFFICER AND SUSTAINED BY THE LEAR NED CIT(APPEALS). THUS, THE ISSUE RAISED BY THE ASSESSEE IS ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 09/10/2009. SD/- AD/- ( R.V. EASWAR ) ( D.C. AGRAWAL ) VICE PRESIDENT ACC OUNTANT MEMBER AHMEDABAD; DATED 09/ 10 /2009 T.C. NAIR COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-V, BARODA 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD