Shri Saumil Prabodhchandra Patel, Ahmedabad V. The ACIT.,(OSD) Circle-10, Ahmedabad

ITA 2271/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94505 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 09-09-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 08-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S N DIVETIA
• Keywords: Salary income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH BEFORE: S H RI PRAMOD KUMAR , ACCOUNTANT MEMBER AND SHR I S. S. GODARA , JUDICIAL MEMBER SAUMIL PRABODHCHANDRA PATEL, 91, 9 TH FLOOR, SAROVAR COMPLEX, ST. XAVIER S COLLEGE ROAD, VANRANGPURA, AHMEDABAD - 14 (APPELLANT) VS ACIT(OSD), CIRCLE - 10, AHMEDABAD (RESPONDENT) ASSESSEE BY: S H RI S.N. DIVETI A , A.R. REVENUE BY: SHRI DILEEP KUMAR , SR. D.R. DATE OF HEARING : 09 - 09 - 2 015 DATE OF PRONOUNCEMENT : 30 - 09 - 2 015 / ORDER P ER : S. S. GODARA , JUDICIAL MEMBER : - THIS ASSESSEE S APPEAL FOR A.Y. 2007 - 08, AR ISES FROM ORDER OF THE CIT(A) - XVI, AHMEDABAD DATED 14 - 07 - 2011 IN APPEAL NO. CIT(A) - I T A NO . 2271 / A HD/20 11 A SSESSMENT YEAR 200 7 - 08 I .T.A NO. 2271 /AHD/20 11 A.Y. 2007 - 08 PAGE NO SAUMIL PRABODHCHANDRA PATEL VS. ACIT (OSD) 2 XVI / ACIT(OSD)/CIR. - 10/041/ 10 - 11 , IN PROCEEDINGS UNDER SECTION 271(1)(C ) OF THE INCOME TAX ACT, 1961; IN SHORT THE AC T . 2. THE ASSESSEE S SOLE SUBSTANTIVE CHALLENGES CORRECTNESS OF THE LOWER APPELLATE ORDER UPHOLDING SECTION 271(1)(C) PENALTY OF RS. 2 LACS LEVIED BY ASSESSING OFFICER IN ORDER DATED 26 - 04 - 2010. 3. THIS ASSESSEE IS ASSESSED AS AN INDIVI DUAL EARNING INCOME FROM SALARY, HOUSE PROPERTY, SHORT AND LONG TERM CAPITAL GAINS AND COMMISSION RECEIPTS. HE FILED HIS RETURN ON 30 - 11 - 2007 DECLARING INCOME OF RS. 10,77,770/ - . THIS INCLUDED A COMMISSION RECEIPT OF RS. 11,50,000/ - RECEIVED FROM TWO PAYERS. THE ASS ESSEE HAD CLAIMED CORRESPONDING EXPENDITURE OF RS. 8,93,503/ - COMPRISING OF COMMISSION PAYMENT OF RS. 6 LACS , LEGAL EXPENDITURE OF RS. 1,90,000/ - AND PROFESSIONAL EXPENSES OF RS. 1,08,000/ - . THE ASSESSING OFFICER SOUGHT FOR NECESSARY DETAIL. THE ASSESSE E PROVED HAVING INCURRED THE NECESSARY EVIDENCE BY PLACING ON RECORD THE NECESSARY RECEIPTS A ND PROOF OF PAYMENTS. HOWEVER, HE COULD NOT CO - RELATE THE SAME AS AGAINST HIS COMMISSION INCOME OF RS. 11 LACS. HE WOULD IN TURN REVISE HIS RETURN. THE ASSE SSING OFFICER FRAMED A REGULAR ASSESSMENT TO THIS EFFECT ASSESSING ASSESSEE S INCOME TO BE OF RS. 15 ,17,721/ - . NEEDLESS TO SAY, THE ASSESSEE S EXPENDITURE AMOUNT OF RS. 8,93,503/ - STOOD DISALLOWED/ADDED. THE ASSESSEE DID NOT FILE ANY APPEAL. QUANTUM PR OCEEDINGS ACCORDINGLY ATTAINED FINALITY. THE ASSESSING OFFICER FURTHER TREATED ASSESSEE S CLAIM OF EXPENDITURE AS THAT OF CONCEALMENT AND FURNISHING OF INACCURATE I .T.A NO. 2271 /AHD/20 11 A.Y. 2007 - 08 PAGE NO SAUMIL PRABODHCHANDRA PATEL VS. ACIT (OSD) 3 PARTICULARS OF INCOME FOR INITIATING SECTION 271(1)(C) PENALTY PROCEEDINGS. 4. IN PENALTY PROCEEDINGS, THE ASSESSEE PLEADED TO HAVE PAID TAXES UPON THE IMPUGNED DISALLOWANCE AFTER FILING A REVISED COMPUTATION TO PRAY FOR DROPPING THE IMPUGNED PROCEEDINGS. THE ASSESSING OFFICER INTER ALIA HELD IN PENALTY ORDER DATED 26 - 04 - 2010 THAT THE ASSESSE E HAD COME FORWARD WITH THE FACT THAT THE EXPENDITURE WAS CAPITAL AND NOT REVENUE IN NATURE ONLY AFTER TWO HEARING S FOR SECURITY ASSESSMENT , HE HAD FURNISHED INACCURATE PARTICULARS OF INCOME IN RAISING CLAIM OF IMPUGNED EXPENDITURE AND PAYMENT OF TAX DID N OT ABSOLVE HIM FROM CONSEQUENTIAL PENALTY THEREOF. HE ACCORDINGLY IMPOSED THE P ENA L T Y IN QUESTION OF RS. 2 LACS. THE CIT(A) CONFIRMS THE ASSESSING OFFICER S ACTION. 5. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE CASE FILE. RELEVANT FACTS OF THE CASE STANDS NARRATED HEREINABOVE. THE ASSESSEE CLAIMED EXPENDITURE OF R S. 8,93,503/ - (SUPRA) AS AGAINST COMMISSION INCOME OF RS. 11 LACS. IT HAS COME ON RECORD THAT HE HAD ACTUALLY INCURRED THE SAME; ALTHOUGH NOT CORRESPONDING TO HIS COMMISSION INCO ME. THERE IS NO DISPUTE ON GENUINENESS OF EXP ENDITU RE OTHERWISE. WE INFER IN THESE FACTS TH AT THE ASSESSEE HAD RAISED IMPUGNED CLAIM AND WITHDREW THE SAME BY FILING REVISED COMPUTATION IN THE COURSE OF SCRUTINY . WE HOLD IN THESE FACTS THAT THE ASSESSEE S ACTION IN RAISING THE ABOVE STATED CLAIMED DOES NOT AMOUNT T O CONCEALMENT AND FURNISHING OF INACCURATE PARTICULARS OF I .T.A NO. 2271 /AHD/20 11 A.Y. 2007 - 08 PAGE NO SAUMIL PRABODHCHANDRA PATEL VS. ACIT (OSD) 4 INCOME ATTRACTING SECTION 271(1) (C) PENALTY. WE REITERATE TRITE PROPOSITION OF LAW THAT QUANTUM AND PENALTY PROCEEDINGS ARE SEPARATE AN D EACH AND EVERY ADDITION DOES NOT RESULT IN AUTOMATIC IMPOSITION OF PENALTY AS HELD BY HON BLE APEX COURT IN CIT VS. RELIANCE PETRO - PRODUCTS 322 ITR 158 (SC). WE ACCEPT ASSESSE S SOLE SUBSTANTIVE GROUND ACCORDINGLY. THE REVENUE S ARGUMENT SUPPORTS THE I MPUGNED STAND REJECTED. 6. THIS ASSESSEE S APPEAL IS ALLOWED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 30 - 09 - 2015 SD/ - SD/ - ( PRAMOD KUMAR ) ( S. S. GODARA ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 30 /09 /2015 AK / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,