The ITO, Ward-9(2), Surat V. Shri Kantilal Vajulal Chokshi(HUF), Surat

ITA 2202/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 89580 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 9 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-06-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 02-06-2015
• Assessment Year: 2001-2002
• Appeal Filed On: 02-09-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Reopening of assessment

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI RAJPAL YADAV,JUDICIAL MEMBER NO. 2202/AHD/2011 / ASSESSMENT YEAR: 2001-02 INCOME TAX OFFICER, WARD 9(2), SURAT. VS SHRI KANTILAL VAJULAL CHOKSI (HUF), B-51, BHULABHAI DESAI PARK, LAXMINARAYAN ASHRAM ROAD, KATARGAM, SURAT-395 001. / (APPELLANT) / (RESPONDENT) PAN AABHC 5169 F REVENUE BY : MR. NIMESH YADAV, SR.D.R. ASSESSEE(S) BY : WRITTEN SUBMISSIONS. / DATE OF HEARING : 02/ 06/2015 / DATE OF PRONOUNCEMENT: 05/06/2015 / O R D E R PER N.S. SAINI, ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT (A)-V, SURAT DATED 25-5-2011. ITA NO 2202 /AHD/2011 ASSESSMENT YEAR: 2001-02 2 2. THE SOLE GROUND OF APPEAL TAKEN BY THE REVENUE I N THIS APPEAL IS THAT THE CIT (A) HAS ERRED IN DELETING THE PENALTY LEVIED BY THE ASSESSING OFFICER OF RS.5,04,005/- ON ACCOUNT OF UN EXPLAINED OPENING CAPITAL. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FI LED RETURN OF INCOME FOR THE FIRST TIME FOR A.Y. 2001-02 ON 12-09-2002 W HEREIN IT HAD CLAIMED OPENING CAPITAL OF RS.14,74,303/-. SINCE T HE ASSESSEE COULD NOT EXPLAIN THE SOURCE OF OPENING CAPITAL OF RS.14, 74,303/-, THE ASSESSING OFFICER MADE THE ADDITION OF THE ENTIRE A MOUNT OF RS.14,74,303/- TO THE INCOME OF THE ASSESSEE. 4. ON APPEAL, FILED BY THE ASSESSEE THE CIT (A) CON FIRMED THE ACTION OF THE ASSESSING OFFICER 5. THEREAFTER, THE ASSESSING OFFICER LEVIED PENALTY U/S. 271(1)(C) OF THE ACT FOR FURNISHING INACCURATE PARTICULARS OF IN COME OF RS.5,04,005/- BEING 100% OF THE TAX SOUGHT TO BE EVADED ON THE CO NCEALED INCOME. 6. ON APPEAL, THE CIT(A) DELETED THE PENALTY BY OBS ERVING THAT IN THE CASE OF SHRI RAJNIKANT V. CHOKSHI (HUF) AND OTHER S IMILAR CASES, HE HAS ALLOWED THE QUANTUM APPEALS OF THE APPELLANT FOLLOW ING THE DECISION OF THE CIT (A) IN THE CASE OF SHRI NAVINCHANDRA V. CHO KSI (HUF) AND SHRI KAMLESH R. CHOKSI (HUF). THE CIT (A) ALSO OBSERVED THAT DURING THE PENALTY PROCEEDINGS ASSESSING OFFICER HAS NOT BROUG HT ANY NEW MATERIAL ON RECORD OTHER THAN WHAT HAS BEEN STATED IN THE AS SESSMENT ORDER TO ITA NO 2202 /AHD/2011 ASSESSMENT YEAR: 2001-02 3 INDICATE THAT THE ASSESSEE HAS FILED WRONG PARTICUL ARS OF INCOME. HE OBSERVED THAT AS THE QUANTUM APPEAL HAS BEEN DECIDE D IN FAVOUR OF THE ASSESSEE THE PENALTY LEVIED IN THIS CASE CANNOT BE SUSTAINED. HE ALSO OBSERVED THAT IN THE CASE OF SHRI NAVINCHANDRA V. C HOKSI (HUF), PENALTY LEVIED FOR ASSESSMENT YEAR 1999-2000 ON SIMILAR ISS UE WAS DELETED BY HIM VIDE ORDER DATED 19-11-2010 IN APPEAL NO.CAS/V/ 06/09-10 HE THEREFORE, DELETED THE LEVY OF PENALTY. 7. BEFORE US THE A.R. OF THE ASSESSEE HAS FILED WRI TTEN SUBMISSIONS WHEREIN IT HAS BEEN STATED THAT THE CIT (A) HAS ALL OWED THE APPEAL OF THE ASSESSEE AND CANCELLED THE PENALTY LEVIED BY TH E ASSESSING OFFICER BY RELYING ON THE DECISION OF AHMEDABAD BENCH OF TH E TRIBUNAL IN THE QUANTUM APPEAL BEING ITA NO.163/AHD/2010 & ITA NO.2 50/AHD/2007 WHEREIN THE TRIBUNAL AFTER CONSIDERING THE FACTS OF THE CASE HELD THAT REOPENING OF ASSESSMENT CANNOT BE UPHELD AND THAT T HE FACTS IN HIS CASE ARE EXACTLY SIMILAR TO THE CASE DECIDED BY THE TRIB UNAL. IT IS FURTHER STATED THAT THE TRIBUNAL IN QUANTUM APPEAL IN THE C ASE OF THE ASSESSEE ITSELF IN ITA NO.4420/AHD/2007 FOR ASSESSMENT YEAR 2001-02 HAS ALLOWED THE APPEAL FOR STATISTICAL PURPOSES. THERE FORE, IT WAS PRAYED THAT THE APPEAL OF THE REVENUE SHOULD BE DISMISSED. 8. ON THE OTHER HAND THE DEPARTMENTAL REPRESENTATIV E SUPPORTED THE ORDER OF THE ASSESSING OFFICER. 9. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE MATERIAL AVAILABLE ON RECORDS, WE FIND THAT THE ASSESSING OF FICER LEVIED PENALTY OF RS.5,04,005/- AS THE ASSESSEE FAILED TO EXPLAIN THE SOURCE OF OPENING CAPITAL OF RS.14,74,303/-. THE SAME WAS CONFIRMED I N APPEAL BY THE CIT ITA NO 2202 /AHD/2011 ASSESSMENT YEAR: 2001-02 4 (A). ON FURTHER APPEAL BY THE ASSESSEE FOR AN ADDIT ION OF RS.14,74,303/- ON ACCOUNT OF OPENING CAPITAL THE TRIBUNAL VIDE ORD ER DATED 8-8-2013 IN ITA NO.4420/AHD/2007 RESTORED THE MATTER TO THE FIL E OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION OF THE ISSUE WITH TH E SAME DIRECTION AS GIVEN IN THE CASE OF SHRI ALPESHKUMAR J. MANGUKIA & OTHERS IN ITA NO.1419/AHD/2009 ORDER DATED 17-02-2012. IN THE ABO VE FACTS AND CIRCUMSTANCES WE ARE OF THE CONSIDERED OPINION THAT AS THE ISSUE OF ADDITION OF OPENING CAPITAL OF RS.14,74,303/- IS RE STORED BACK TO THE FILE OF THE ASSESSING OFFICER BY THE TRIBUNAL IN THE QUA NTUM APPEAL OF THE ASSESSEE, THE ISSUE OF LEVY OF PENALTY ON SUCH ADDI TION SHOULD ALSO BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION IN LIGHT OF THE DECISION TAKEN IN THE SET ASIDE PROCEE DINGS. WE ORDER ACCORDINGLY. THIS GROUND OF APPEAL OF THE REVENUE I S ALLOWED FOR STATISTICAL PURPOSE. 10. IN THE RESULT THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON FRIDAY, THE 5 TH DAY OF JUNE,2015 AT AHMEDABAD. SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER ( N.S. SAINI) ACCOUNTANT MEMBER AHMEDABAD. DATED 05 /06/2015