Abhishek Estate Limited, Surat V. The Income tax Officer, Ward-1(4), Surat

ITA 2285/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 89357 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2002-2003
• Appeal Filed On: 09-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Section: 143(3); 147; 148; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD (BEFORE SHRI SHAILENDRA KR. YADAV, J.M & SHRI ANIL CHATURVEDI, A.M.) I.T. A. NO.2285/AHD/2011 (ASSESS MENT YEAR: 2002-03) ABHISHEK ESTATE LIMITED H- 1, HOUSING ZONE, GIDC, SACHIN, SURAT V/S I.T.O., WARD 1(4), SURAT (APPELLANT) (RESPONDENT) PAN: AABCA9744K APPELLANT BY : SHRI MANISH J. SHAH, A.R. RESPONDENT BY : SMT. SONIA KUMAR, SR. D.R. ( )/ ORDER DATE OF HEARING : 22-04-2015 DATE OF PRONOUNCEMENT : 30 -04-2015 PER ANIL CHATURVEDI,A.M. 1. THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE OR DER OF CIT(A)-VI, BARODA DATED 23.06.2011 FOR A.Y. 2002-03. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 3. ASSESSEE IS A COMPANY STATED TO BE ENGAGED IN THE B USINESS OF REAL ESTATE. ASSESSEE FILED ITS RETURN OF INCOME FOR A.Y. 2002-0 3 ON 31.10.2002 DECLARING LOSS OF RS. 8,250/-. THE CASE WAS INITIAL LY PROCESSED U/S. 143(1). SUBSEQUENTLY THE CASE WAS RE-OPENED BY ISSUANCE OF NOTICE U/S. 148 AND ITA NO 2285/ AHD/2011 . A.Y. 2002- 03 2 THEREAFTER THE ASSESSMENT WAS FRAMED U/S. 147 R.W.S . 143(3) VIDE ORDER DATED 31.12.2007 WHEREIN ADDITION ON ACCOUNT OF UNEXPLAIN ED CASH CREDIT OF RS. 26,54,922/- WAS MADE. ON THE AFORESAID ADDITION OF CASH CREDIT MADE BY THE A.O PENALTY OF RS. 9,29,223/- ON ACCOUNT OF CONCEAL MENT OF INCOME WAS MADE U/S. 271(1)(C) VIDE ORDER DATED 22.03.2010. AG GRIEVED BY THE ORDER OF A.O., ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) WHO VIDE ORDER DATED 14.06.2011 DISMISSED THE APPEAL OF THE ASSESSEE. AG GRIEVED BY THE AFORESAID ORDER OF LD. CIT(A), ASSESSEE IS NOW IN APPEAL BEFO RE US AND HAS RAISED THE FOLLOWING GROUNDS;- 1. THE LEARNED CIT (A) - I, SURAT HAS ERRED IN NOT PRO PERLY APPRECIATING VARIOUS FACTUAL AND PRACTICAL DIFFICULTIES FACED BY THE APPELLANT C OMPANY AND IT'S DIRECTORS AS EXPLAINED IN VARIOUS SUBMISSIONS MADE BEFORE THE IN COME TAX OFFICER AND LEARNED CIT (A). 2. ON VARIOUS LEGAL AND FACTUAL CONSIDERATIONS OF THE CASE, THE CIT (A) IS NOT JUSTIFIED IN UPHOLDING THE PENALTY OF RS. 9,29,223/- LEVIED U/S. 271 (1)(C) OF THE INCOME TAX ACT, 1961. 3. IT IS THEREFORE, PRAYED THAT THE SAID PENALTY OF RS . 9,29,223/- UPHELD BY THE CIT (A) MAY KINDLY BE DELETED. 4. THE APPELLANT PRAYS FOR GRANTING SUCH OTHER RELIEF AS MAY BE DEEMED JUST AND PROPER BY YOUR HONOURS CONSIDERING THE FACTUAL AND LEGAL A SPECTS OF THE CASE OF THE APPELLANT. 4. BEFORE US, AT THE OUTSET, LD. A.R. SUBMITTED THAT O N THE ADDITION MADE U/S. 68 OF RS. 26,54,922/-, ASSESSEE HAD PREFERRED APPEAL B EFORE HONBLE TRIBUNAL. HONBLE TRIBUNAL VIDE ORDER DATED 06.02.2015 IN ITA NO. 3559/AHD/2008 HAS ALLOWED THE APPEAL OF THE ASSESSEE AND DELETED THE ADDITION. HE THEREFORE SUBMITTED THAT SINCE THE ADDITION ON WHICH THE PENA LTY HAS BEEN LEVIED ITSELF HAS BEEN DELETED, NO PENALTY ON ACCOUNT OF CONCEALM ENT OF INCOME U/S. 271(1)(C) IS THEREFORE LEVIABLE. HE ALSO PLACED ON RECORD THE COPY OF THE AFORESAID ORDER OF TRIBUNAL. LD. D.R. ON OTHER HAND SUPPORTED THE ORDER OF A.O AND LD. CIT(A). ITA NO 2285/ AHD/2011 . A.Y. 2002- 03 3 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT A.O HAD LEVIED PENALTY ON ACCOUNT OF CONC EALMENT OF INCOME U/S. 271(1)(C) ON THE ADDITION OF RS. 26,54,922/- MADE U /S. 68 OF THE ACT. WE FURTHER FIND THAT AGAINST THE AFORESAID ADDITION, A SSESSEE HAD PREFERRED APPEAL BEFORE THE HONBLE TRIBUNAL. HONBLE TRIBUN AL VIDE ORDER DATED 06.02.2015 (SUPRA) DELETED THE ADDITION MADE U/S. 6 8. IN VIEW OF THE FACT THAT THE ADDITION ON WHICH THE PENALTY WAS LEVIED HAS IT SELF BEEN DELETED AND THEREFORE, THE PENALTY U/S. 271(1)(C) ON THE ADDITI ON ALSO DOES NOT SURVIVE. WE THEREFORE DELETE THE PENALTY LEVIED U/S. 271(1)( C) OF THE ACT. THUS THE GROUND OF ASSESSEE IS ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN OPEN COURT ON 30 - 04 - 2015. SD/- SD/- (SHAILENDRA KR. YADAV) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD. TRUE CO PY 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,AH MEDABAD