Mahavir Dyeing & Printing Mills Pvt.Ltd., Surat V. The Dy.CIT.,Circle-1, Surat

ITA 222/AHD/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 60236 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-04-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 28-02-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 22-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: KAMLESH N BHATT
• Keywords: Loose papers
• Section: 271(1)(c); 143(3); 133A

Judgement Text

ITA NO.222 /AHD/2010 A.Y.. 2006- 07 1 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD (BEFORE SHRI MUKUL KR.SHRAWAT JM & SHRI ANIL CHATUR VEDI A.M.) I.T.A. NO. 22 2 /AHD/2010. (ASSESSMENT YEAR: 2006 -07) MAHAVIR DYEING & PRINTING MILLS PVT, LTD., BLOCK NO.3000-301-303, TANTITHAIYA, TAL. PALSANA, DIST.SURAT. (APPELLANT) VS. DEPUTY COMMISSIONER OF INCOME TAX, AAYAKAR BHAVAN, MAJURA GATE, SURAT. (RESPONDENT) PAN: AABCM 9240J APPELLANT BY : SHRI KAMLESH N. BHATT. RESPONDENT BY : SHRI SAMIR TEKRIWAL, SR. D.R. ( )/ ORDER DATE OF HEARING : 28-2-2012 DATE OF PRONOUNCEMENT : 13-4-2012 PER: SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER. THIS APPEAL IS DIRECTED AGAINST THE ORDER OF LD. C IT (A)-I, SURAT DATED 10-12-2009 FOR THE ASSESSMENT YEAR 2006-07. 2. THE ONLY GROUND RAISED BY THE APPELLANT IS AS UN DER:- IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) OUGHT TO HELD THAT THE LD. A.O. HAS ERRED IN LAW AN D IN LEVYING THE PENALTY OF RS.1,33,314/- U/S. 271(1)(C) OF THE INCO ME TAX ACT,1961 AND HENCE YOUR APPELLANT MOST HUMBLY PRAYS THAT THE ORDER LEVYING THE IMPUGNED PENALTY BE QUASHED. ITA NO.222 /AHD/2010 A.Y.. 2006- 07 2 3. ASSESSEE IS A COMPANY ENGAGED IN THE BUSINESS OF DYEING AND PRINTING OF CLOTH. FOR ASSESSMENT YEAR 2006-07, RET URN OF INCOME WAS FILED DECLARING TOTAL LOSS OF RS.8,20,530/-. THE CASE WAS TAKEN UP FOR SCRUTINY AND ORDER PASSED U/S. 143(3) DELETING TOTAL LOSS OF RS.3,85,520/-. 4. A SURVEY ACTION U/S. 133A WAS CARRIED OUT ON 13- 1-2006 IN THE BUSINESS PREMISES OF ASSESSEE, THE ASSESSEE HAD DIS CLOSED AN EXCESS INVESTMENT OF RS.44,65,082/- WHEREAS THE INCOME REF LECTED IN THE LOOSE PAPERS INVENTORISED SHOWED THAT THE TOTAL UNACCOUNT ED, INVESTMENT CAME TO RS.47,89,525/-. THE ASSESSEE COULD NOT RECONCILE THE DIFFERENCE DURING THE ASSESSMENT PROCEEDINGS AND ACCORDINGLY THE DIFF ERENCE OF RS.3,24,443/- (RS.47,89,525 - RS. 44,65,082) WAS ADDED AS INCOME OF THE ASSESSEE AND PENALTY U/S. 271(1)(C) WAS INITIATED O N THE DIFFERENCE. THE ASSESSMENT WAS COMPLETED IN DECEMBER, 2008. THE ASS ESSEE HAD NOT FILED ANY APPEAL AGAINST THE ASSESSMENT ORDER. AS T HE TIME TO PASS PENALTY ORDER WAS GETTING TIME BARRED ON 30-6-2009, A.O. PA SSED ORDER OF PENALTY U/S. 271(1)(C ) ON 29-6-2009 AND LEVIED PENALTY OF RS. 1,33,114/-. 5. AGAINST THE PENALTY ORDER, ASSESSEE PREFERRED AP PEAL BEFORE CIT (A). CIT (A) CONFIRMED THE PENALTY VIDE HIS ORDER DATED 10-12-2009. 6. AGAINST THE PENALTY, ASSESSEE IS NOW IN APPEAL B EFORE US. THE LD. AR REITERATED THE SUBMISSION MADE BEFORE LOWER AUTHORI TIES. HE STATES THAT DURING THE COURSE OF SURVEY U/S. 133A, THE ASSESSEE DISCLOSED EXCESS INCOME OF RS.44,65,082/- AS PER CALCULATION MADE BY I.T. DEPARTMENT OF LOOSE PAPER FOUND DURING THE COURSE OF SURVEY AND T HE ASSESSEE FILED ITS RETURN OF INCOME SHOWING THE DISCLOSED INCOME. HOWE VER, DURING THE ITA NO.222 /AHD/2010 A.Y.. 2006- 07 3 COURSE OF ASSESSMENT PROCEEDINGS THE A.O. RECALCULA TED THE TOTAL OF LOOSE PAPERS FOUND SE OF SURVEY AND THE SAME CAME TO RS. 47,89,525/- AND THE ASSESSEE AGREED FOR THE SAID AMOUNT. ON ACCOUNT OF UNACCOUNTED PAYMENT OF SALARY TO THE EXTENT OF RS.1,10,570/-, IT WAS DU E TO CALCULATION MISTAKE DONE BY DEPARTMENTS PERSON. AS PER THE INFORMATION GIVEN BY SURVEY OFFICER, THE ASSESSEE AGREED FOR UNACCOUNTED SALARY PAYMENT OF RS.9,41,500/- WHILE AT THE TIME OF ASSESSMENT PROCE EDINGS THE A.O. AGAIN CALCULATED THE FIGURE OF LOOSE PAPER OF SALARY SHEE T AND IT WAS FOUND THAT SALARY PAYMENT WAS RS.10,52,070/- AND NOT RS.9,41,5 00/- AND SO THE ASSESSEE AGREED FOR ADDITION OF DIFFERENCE OF RS.1, 10,570/-. 7. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE RECO RDS. IT IS UNDISPUTED FACT THAT THE ADDITION WAS MADE ON DIFFERENCE OF TH E MATERIAL FOUND DURING THE SURVEY AND THAT RECALCULATED AT THE TIME OF ASS ESSMENT PROCEEDINGS. IT IS ALSO A FACT THAT ASSESSEE HAD AGREED FOR THE ADD ITION MADE AT THE TIME OF SURVEY AND THAT DETECTED ON RECALCULATION AT THE TI ME OF ASSESSMENT. THE PLEA OF THE ASSESSEE THAT THE DIFFERENCE IS DUE TO THE ARITHMETICAL AND CLERICAL MISTAKE HAS NOT BEEN CONTROVERTED BY THE R EVENUE. THE ASSESSEE HAS OFFERED EXPLANATION IN RESPECT OF ALL ITEMS ON WHICH THE PENALTY HAS BEEN LEVIED BY THE A.O AND IT WAS NOT FOUND BY THE A.O. THAT THE EXPLANATION WAS FALSE. AFTER CONSIDERING THE ENTIRE FACTS AND CIRCUMSTANCES OF THE CASE IT IS CLEAR THAT THE EXPLANATION GIVEN BY THE ASSESSEE IS BONAFIDE. IT IS NOT A CASE OF FURNISHING OF INACCUR ATE PARTICULARS OR CONCEALMENT OF INCOME. IN VIEW OF THE ABOVE FACTS, WE ARE OF THE OPINION, THAT THE CASE OF ASSESSEE IS NOT LIABLE TO PENALTY U/S. 271(1)(C) OF THE ACT. 8. ACCORDINGLY, WE DIRECT TO DELETE THE PENALTY. ITA NO.222 /AHD/2010 A.Y.. 2006- 07 4 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN OPEN COURT ON 13 - 4 - 2012. SD/- SD/- (MUKUL KUMAR SHRAWAT) (ANIL CHATURVEDI) JUDICIAL MEMBER ACC OUNTANT MEMBER AHMEDABAD. S.A.PATKI. COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS)-I, SURAT. 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD. ITA NO.222 /AHD/2010 A.Y.. 2006- 07 5 1.DATE OF DICTATION 28 - 2 -2012 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 9 / 4 / 2012 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S 11 - 4 -2012. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 13 - 4 -2012 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 13 - 4 -2012 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 13 - 4 -2012. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..