Pavasia Exports, Surat V. The ACIT., Circle-9, Now Circle-3(3), Surat

ITA 2264/AHD/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9465 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 16-02-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 31-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R N VEPARI
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI S.S. GODARA, JUDICIAL MEMBER) ITA. NO: 2264/AHD/2015 (ASSESSMENT YEAR: 2005-06) PAVASIA EXPORTS 405 TO 412, SUPER DIAMOND MARKET, VARACHHA ROAD, SURAT 395006 V/S THE ASSISTANT COMMISSIONER OF INCOME- TAX, CIRCLE-3(3), SURAT (APPELLANT) (RESPONDENT) PAN: AADFP5297P APPELLANT BY : SHRI R.N.VEPARI, AR RESPONDENT BY : SMT. USHA SHROTE, SR. D.R. ( )/ ORDER DATE OF HEARING : 16 -02-201 6 DATE OF PRONOUNCEMENT : 19 -02-2016 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. WITH THIS APPEAL, THE ASSESSEE HAS CHALLENGED THE C ORRECTNESS OF THE ORDER OF THE LD. CIT(A)-III, SURAT DATED 02.06.2015 PERTAINING TO A.Y. 2005-06. ITA NO. 2264 /AHD/2015 . A.Y.2005-06 2 2. THE SOLE GRIEVANCE OF THE ASSESSEE RELATES TO LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT. 3. THE ROOTS FOR THE LEVY OF PENALTY LIE IN THE ASSESS MENT ORDER DATED 21.12.2007 MADE U/S. 143(3) OF THE ACT. WHILE SCRUT INIZING THE RETURN OF INCOME AND AFTER THOROUGHLY EXAMINING THE BOOKS OF ACCOUNTS. THE A.O WAS OF THE FIRM BELIEF THAT THE ASSESSEE HAS SH OWN A LOWER PROFIT AS COMPARED TO EARLIER YEARS AND AFTER POINTING OUT CERTAIN DEFECTS IN THE BOOKS OF ACCOUNTS ADDITION OF RS. 70,81,679/- W AS MADE ON ACCOUNT OF LOWER PROFIT. ASSESSEE CARRIED THE MATTE R BEFORE THE LD. CIT(A) BUT WITHOUT ANY SUCCESS. 4. PENALTY PROCEEDINGS WERE INITIATED BY THE A.O FOR F ILING INACCURATE PARTICULARS OF INCOME, THE NOTICES WERE ISSUED AND SERVED UPON THE ASSESSEE. THE ASSESSEE WAS ASKED TO SHOW CAUSE WHY PENALTY SHOULD NOT BE LEVIED U/S. 271(1)(C) OF THE ACT. AFTER CONS IDERING THE SUBMISSIONS, THE A.O PROCEEDED BY DRAWING SUPPORT F ROM THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF DHARMEN DRA TEXTILES 306 ITR 277 AND COMPLETED THE PENALTY PROCEEDINGS BY LE VYING PENALTY OF RS. 25,91,363/- U/S. 271(1)(C) OF THE ACT FOR FILIN G INACCURATE PARTICULARS OF INCOME. 5. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) B UT WITHOUT ANY SUCCESS. BEFORE US, THE LD. COUNSEL FOR THE ASSESSE E BROUGHT TO OUR NOTICE THE APPELLATE ORDERS FOR ASSESSMENT YEAR 200 4-05 AND STATED THAT ON SIMILAR SET OF FACTS, THE PENALTY LEVIED WA S CANCELLED BY THE APPELLATE AUTHORITIES. IT IS THE SAY OF THE LD. COU NSEL THAT A SIMILAR VIEW SHOULD BE TAKEN ON THE FACTS OF THE CASE. PER CONTR A, THE LD. D.R. SUPPORTED THE FINDING OF THE REVENUE AUTHORITIES. ITA NO. 2264 /AHD/2015 . A.Y.2005-06 3 6. WE HAVE CAREFULLY CONSIDERED THE ORDERS OF THE AUTH ORITIES BELOW. WE HAVE ALSO GIVEN A THOUGHTFUL CONSIDERATION TO THE O RDER OF THE APPELLATE AUTHORITIES BROUGHT TO OUR NOTICE. IT WOULD BE PERT INENT TO MENTION THE OBSERVATIONS OF THE TRIBUNAL IN THE QUANTUM APPELLA TE PROCEEDINGS IN ITA NO. 2310 & 4010/AHD/2008. THE RELEVANT PORTION READ AS UNDER:- THEREFORE, WE HAVE CONSIDERED VIEW THAT LD. CIT(A) WAS RIGHT IN ENHANCING THE INCOME IN A.Y. 2004-05 AND REVERSING THE ORDER OF THE LD. CIT(A) IN A.Y. 2005-06 BECAUSE IN BOTH THE YEAR S, THE FACTS OF THE ASSESSEE ARE IDENTICAL . 7. KEEPING IN MIND, THIS FINDING OF THE TRIBUNAL IN QU ANTUM APPEAL, IN THE APPELLATE PROCEEDINGS AGAINST THE PENALTY APPEAL, T HE TRIBUNAL IN ITA NO. 2641/AHD/2011 HAS CONFIRMED THE FIRST APPELLATE AUTHORITY WHO HAS CANCELLED THE LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT. 8. WITH THE AFOREMENTIONED OBSERVATIONS OF THE TRIBUNA L, WE FIND THAT FACTS IN ISSUES IN BOTH THE YEARS I.E. A.Y. 2004-05 & 2005-06 ARE IDENTICAL. THEREFORE WE DO NOT FIND ANY REASON WHY THE PENALTY SHOULD BE UPHELD FOR THE YEAR UNDER CONSIDERATION. 9. SINCE THE FACTS ARE IDENTICAL AND NO DISTINGUISHING FACTS HAS BEEN BROUGHT BEFORE US. RESPECTFULLY, FOLLOWING THE FIND INGS OF THE CO- ORDINATE BENCH, WE SET ASIDE THE ORDER OF THE LD. C IT(A) AND DIRECT THE A.O TO DELETE THE PENALTY OF RS. 25,91,363/-. ITA NO. 2264 /AHD/2015 . A.Y.2005-06 4 10. APPEAL FILED BY THE ASSESSEE IS ACCORDINGLY ALLOWED . ORDER PRONOUNCED IN OPEN COURT ON 19 - 02 - 2016. SD/- SD/- (S. S. GODARA) (N. K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMED ABAD