Shri Ashok B.Modi, Surat V. The Income tax Officer,Ward-6(1), Surat

ITA 219/AHD/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 67650 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 12-09-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 23-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J P JANGID
• Assessee Lawyers: RASESH SHAH

Judgement Text

, , , , , , , , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD , , , , . .. . . .. . !'# !'# !'# !'#, , , , $ % $ % $ % $ % BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ./ I.T.A.NO.219/AHD/2013 ( ' ( )( ' ( )( ' ( )( ' ( )( / / / / ASSESSMENT YEAR : 2004-05) SHRI ASHOK B. MODI 97-98 GIDC PANDESARA SURAT 394 221 ' ' ' ' / VS. THE INCOME TAX OFFICER WARD-6(1) SURAT * $ ./+, ./ PAN/GIR NO. : ABPPM 9008 A ( *- / // / APPELLANT ) .. ( ./*- / RESPONDENT ) *- 0 / APPELLANT BY : SHRI RASESH SHAH ./*- 1 0 / RESPONDENT BY : SHRI J.P.JANGID, SR.D.R. '2 1 3$ / / / / DATE OF HEARING : 12/09/2013 4!) 1 3$ / DATE OF PRONOUNCEMENT : 16/09/2013 5 / O R D E R PER SHRI A.K.GARODIA ACCOUNTANT MEMBER : THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE ORDER OF LD.CIT(A)-I SURAT, DATED 19/11/2012 FOR ASST.YEAR 2 004-05. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER:- 1. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WE LL AS LAW ON THE SUBJECT, THE LEARNED CIT(APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN L EVYING PENALTY OF RS.5,67290/- U/S.271(1)(C) ON THE ADDITI ON OF RS.17,87304/- ON ACCOUNT OF GROSS PROFIT. 2. IT IS THEREFORE PRAYED THAT THE ABOVE PENALTY LEVIE D BY ASSESSING OFFICER AND CONFIRMED BY CIT(APPEALS) MAY PLEASE BE DELETED. ITA NO.219/AHD/ 2013 SHRI ASHOK B. MODI VS. ITO ASST.YEAR - 2004-05 - 2 - 2. IT WAS SUBMITTED BY THE LD.AR OF THE ASSESSEE BE FORE US THAT IN THE PRESENT CASE, IN QUANTUM PROCEEDINGS THE TRIBUNAL H AS CONFIRMED AN ADDITION OF ONLY RS.443,283/- BY ADOPTING GROSS PRO FIT RATE OF 13.38% OUT OF TOTAL ADDITION MADE BY THE ASSESSING OFFICER OF RS.17,87,304/-. HE SUBMITTED A COPY OF TRIBUNAL DECISION IN QUANTUM APPEAL IN ITA NO.1060/AHD/2008 IN ASSESSEES OWN CASE FOR AY 2004 -05, DATED 20/04/2012. HE FURTHER SUBMITTED THAT SINCE THE PA RT ADDITION CONFIRMED BY THE TRIBUNAL IS ALSO ON ESTIMATED BASIS, NO PENA LTY IS JUSTIFIED EVEN FOR THIS PART ADDITION UPHELD BY THE TRIBUNAL AND IN SU PPORT OF HIS CONTENTION, HE PLACED RELIANCE ON THE TRIBUNALS DECISION RENDE RED IN THE CASE OF AJAYBHAI MAHESHBHAI MAVANI VS. ITO IN ITA NO.1175/A HD/2009 FOR AY 2003-04, DATED 13/01/2012. HE SUBMITTED A COPY OF TRIBUNALS DECISION. AS AGAINST THIS, LD.DR OF THE REVENUE HAS SUPPORTED THE ORDER OF THE CIT(A). 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT A PENALTY WAS IMPOSED BY THE AO ON THE ADDITION OF RS.17,82,5 65/- MADE BY THE AO. OUT OF THIS ADDITION, IN QUANTUM PROCEEDINGS, THE TRIBUNAL HAS UPHELD THE ADDITION OF ONLY RS.4,43,283/- AND THE S AME IS ALSO CONFIRMED BY ESTIMATING THE GP RATE OF 13.38% AS PER PARAGRAP H NO.8 OF THE TRIBUNAL ORDER IN QUANTUM PROCEEDINGS. SINCE THE P ART ADDITION UPHELD BY THE TRIBUNAL IS ALSO ON THE BASIS OF ESTIMATED G P PERCENTAGE, NO PENALTY IS JUSTIFIED ON SUCH ESTIMATED ADDITION AS PER THE TRIBUNAL DECISION CITED BY THE LD.AR OF THE ASSESSEE THAT HA S BEEN RENDERED IN THE CASE OF AJAYBHAI MAHESHBHAI MAVANI VS. ITO (SUPRA). RESPECTFULLY ITA NO.219/AHD/ 2013 SHRI ASHOK B. MODI VS. ITO ASST.YEAR - 2004-05 - 3 - FOLLOWING THIS TRIBUNAL DECISION, WE DELETE THE PEN ALTY IN THE PRESENT CASE. THEREFORE, GROUND RAISED BY THE ASSESSEE I S ALLOWED. 4. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED ON THE DATE MENTIONED ON CAPTION PAGE SD/- SD/- ( ) ( .. !'# ) $ ( MUKUL KR. SHRAWAT ) ( A. K. GARODIA ) JUDICIAL MEMBER A CCOUNTANT MEMBER AHMEDABAD; DATED 16/09/2013 63..', .'../ T.C. NAIR, SR. PS 5 1 .7 87) 5 1 .7 87) 5 1 .7 87) 5 1 .7 87)/ COPY OF THE ORDER FORWARDED TO : 1. *- / THE APPELLANT 2. ./*- / THE RESPONDENT. 3. 9 / CONCERNED CIT 4. 9() / THE CIT(A)-I, SURAT 5. 7< .' , , / DR, ITAT, AHMEDABAD 6. #( =2 / GUARD FILE. 5' 5' 5' 5' / BY ORDER, /7 . //TRUE COPY// > >> >/ // / + + + + ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION 16.9.13 (DICTATION-PAD 4 PAGES ATTACHED WITH THE FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 16.9.13 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH FAIR ORDER PLACED BEFORE OTHER MEMBER 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.17.9.13 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 17.9.13 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER