Shri Dilesh R Raval, RAJKOT-GUJARAT V. The Income Tax Officer, Ward 1 (1), JUNAGADH

ITA 23/RJT/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7314 (ITAT-RAJKOT)
• Duration Of Justice: 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 1996-1997
• Appeal Filed On: 31-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Assessee Lawyers: DR ADHIA
• Section: 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH SMC, RAJKOT BEFORE SHRI A.L. GEHLOT (AM) I.T.A. NO.23/RJT/2011 (ASSESSMENT YEAR 1996-97) DILESHBHAI R RAVAL VS THE ITO, WD.1(1) PROP ALPHA SCIENCE CLASSES JUNAGADH JUNAGADH PAN : ABMPR5176K (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI DR ADHIA RESPONDENT BY : SHRI AVINASH KUMAR O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF CIT(A)- IV, RAJKOT DATED 29-10-2010 FOR THE ASSESSMENT YEAR 1996-97. THE GROUND RAISED IN THE APPEAL IS IN RESPECT OF LEVY OF PENAL TY U/S 271(1)(C) OF THE ACT. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS RUNNING A TUITION CLASS. A SURVEY U/S 133A WAS CARRIED OUT ON 19-10-1995. T HE ASSESSEE ADMITTED IN THE STATEMENT RECORDED AN ADDITIONAL INCOME OF RS.2 LAK H IN ADDITION TO THE INCOME OF RS.50,000 WORKED OUT UPTO THE DATE OF SURVEY. WHIL E FINALIZING THE ASSESSMENT AN ADDITION OF RS.2 LAKH WAS MADE ON ACCOUNT OF DIS CLOSURE MADE BY THE ASSESSEE AT THE TIME OF SURVEY U/S 133A. THE ASSES SEE FILED APPEAL BEFORE CIT(A) WHO HAS CONFIRMED THE ADDITION. AGGRIEVED B Y THE ORDER OF CIT(A) THE ASSESSEE PREFERRED APPEAL BEFORE ITAT. THE ITAT AL LOWED RELIEF OF RS.75,000 AND THE ADDITION WAS THEREFORE RESTRICTED TO RS.1,2 5,000. ASSESSING OFFICER LEVIED PENALTY ON THE AMOUNT OF RS.1,25,000 SUSTAINED BY T HE ITAT. THE MINIMUM PENALTY U/S 271(1)(C) WAS IMPOSED AT RS.42,000. TH E CIT(A) CONFIRMED THE PENALTY ON THE GROUND THAT THE ASSESSEE HAS FURNISH ED INACCURATE PARTICULARS OF INCOME. ITA NO.23/RJT/2011 2 3. THE LD.AR SUBMITTED THAT THE SURVEY WAS CARRIED OUT ON 19-10-1995 AND THE DEPARTMENT GOT DECLARATION FROM THE ASSESSEE FO R FUTURE SIX MONTHS INCOME FROM OCTOBER 1995 TO 31 ST MARCH, 1996 WHICH IS APPARENTLY INCORRECT. THE LD .AR SUBMITTED THAT MERELY ON ESTIMATION OF INCOME PENAL TY U/S 271(1)(C) IS NOT LEVIABLE. THE LD. AR IN SUPPORT OF HIS CONTENTION HAS RELIED UPON THE DECISION OF ITAT, RAJKOT BENCH IN THE CASE OF ACIT VS M/S SHIVS HAKTI HANDLING & TRANSPORT CO ORDER DATED 15-10-2007 IN ITA NO.475/RJT/2006. THE LD.DR RELIED UPON THE ORDER OF CIT(A). 4. I FIND THAT THE SURVEY HAS TAKEN PLACE ON 15-10- 1995 WHEREAS THE FINANCIAL YEAR HAS ENDED ON 31-03-1996. THE DEPARTMENT GOT T HE DISCLOSURE FOR ADVANCE INCOME FROM OCTOBER, 1995 TO 31-03-1996. THE ITAT VIDE ITA NO.546/RJT/2003 ORDER DATED 14 TH MARCH, 2004 WHILE DECIDING THE QUANTUM MATTER HAS OBSERVED THAT THE ASSESSING OFFICER HAS RIGHTLY ESTIMATED TH E INCOME OF THE ASSESSEE. HOWEVER, THIS ESTIMATION HAD NOT BEEN SUBSTANTIATED WITH CONCRETE DETAILS OF OMISSIONS AND DEFECTS NOTICED AT THE TIME OF SURVEY . RATHER, IT IS PURELY BASED ON REPLY TO QUESTION NO.12 OF THE ASSESSEES STATEMENT . THE ITAT WAS OF THE OPINION THAT THE ADDITION WAS ON HIGHER SIDE. THER EFORE, ON ACCOUNT OF FAIRNESS AND EQUITY THE ADDITION TO THE EXTENT OF RS.1,25,00 0 WAS SUSTAINED AND ALLOWED RELIEF OF RS.75,000. FROM THE QUANTUM ORDER OF THE ITAT I FIND THAT IT IS MERELY A CASE OF ESTIMATION OF THE INCOME AND IN THE LIGHT O F THE ORDER OF THE ITAT, RAJKOT BENCH IN ITA NO.475/RJT/2006 I AM OF THE VIEW THAT THE PENALTY IS NOT LEVIABLE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 18-03-2011. SD/- (A.L. GEHLOT) ACCOUNTANT MEMBER RAJKOT, DT : 18 TH MARCH, 2011 PK/- ITA NO.23/RJT/2011 3 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A)-IV, RAJKOT 4. THE CIT-III, RAJKOT 5. THE DR (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, RAJKOT