M/s. Rolex Tin Works, Prop.of Shri Husainbhai M.Karwaniya, Ahmedabad V. The Income tax Officer,Ward-5(4), Baroda

ITA 2439/AHD/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0531 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 07-03-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 31-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T SANKAR SRDR
• Assessee Lawyers: ANIL R SHAH
• Section: 143(3); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE SHRI, A.K.GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.2439-2440/AHD/2012 ASSESSMENT YEARS 2003-04 & 2004-05 : M/S. ROLEX TIN WORKS PROP. OF SHRI HUSAINBHAI MOHMADBHAI KARWANIYA. P.G. TEXTILE MILLS, YAKUTPURA, BARODA 3900017 [ PAN NO.ADSPK 2645L ] V/S . INCOME TAX OFFICER, WARD-5(4), AYKAR BHAWAN, RACE COURSE CIRCLE, BARODA -390 007 / APPELLANT .. / RESPONDENT) /BY ASSESSEE SHRI ANIL R SHAH, AR /BY RESPONDENT SHRI T SANKAR, SR-DR /DATE OF HEARING 07-03-2013 ! /DATE OF PRONOUNCEMENT 15-03-2013 ' ' ' ' / // / O R D E R PER KUL BHARAT, JUDICIAL MEMBER:- THESE TWO APPEALS BY THE ASSESSEE ARE DIRECTED AGA INST THE DIFFERENT ORDERS OF COMMISSIONER OF INCOME-TAX (APPEALS)-V, B ARODA (CIT(A) FOR SHORT) OF EVEN DATED I.E., 21-08-2012 PERTAINING TO ASSESS MENT YEARS (AY) 2003-04 AND 2004-05 RESPECTIVELY. FIRST WE TAKE ITA NO.2439/AHD/2012 FOR AY 03-04. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- I. ON POINT OF LAW:- ITA NO.2439-40/AHD/2012 A.YS. 03-04 & 04-05 M/S ROLEX TIN WORKS V. ITO WD-5(4) BRD PAGE 2 1. THE COMMISSIONER OF INCOME TAX (A) HAS ERRED BOT H IN LAW AND IN FACT IN PARTLY CONFIRMING PENALTY OF RS.15750/- LEV IED BY THE ASSESSING OFFICER U/S. 271(1)(C). 2. YOUR APPELLANT SUBMITS THAT THE ASSESSING OFFICE R HAD NOT RECORDED SATISFACTION OF CONCEALMENT BEFORE ISSUING SHOW C AUSE NOTICE AND IF RECORDED COPY OF SUCH SATISFACTION SO RECORDED W AS NOT GIVEN TO THE APPELLANT THOUGH ASKED FOR AND THEREBY RESULTIN G IN LEVY OF PENALTY NOT VALID. 3. THE NOTICE OF PENALTY ISSUED BY ASSESSING OFFICE R U/S. 271(1) WAS VAGUE, CAPABLE OF TWO VIEWS AND NOT CLEAR AS TO WHE THER THE PENALTY WAS INITIATED FOR CONCEALMENT OF INCOME OR FOR FU RNISHING INACCURATE PARTICULARS OF SUCH INCOME AND THEREFORE LEVY OF P ENALTY IS NOT VALID. II. ON MERITS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LEARNED CIT(A) HAS GROSSLY ERRED IN CONFIRMING THE PENALTY IMPOSED BY APPLYING FOR FURNISHING INACCURATE PARTICULAR OF IN COME IN RESPECT OF COMMISSION U/S. 271(1)(C) THEREBY COMPLETING IGNORI NG THE FACT THAT APPELLANT HAD DISCLOSED THE DETAILS WITH THE RESPEC T TO CLAIM U/S. 44AB IN THE COMPUTATION OF INCOME AND THE SAID CLAI M WAS AS PER AUDIT REPORT ALONG WITH FORM NO. 3CD (SEE RULE 6G(2 ) ISSUED BY CHARTERED ACCOUNTANT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LEARNED CIT(A) HAD GROSSLY ERRED IN CONFIRMING PENALTY IMPO SED OF RS.15750/- BY APPLYING EXPLANATION U/S. 271(1)(C) O F IT ACT FOR FURNISHING INACCURATE PARTICULAR OF INCOME TO THE A PPELLANT FIRM. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LEARNED CIT(A) HAS GROSSLY ERRED CONFIRMING THE PENALTY OF RS.15750/- U/S. 271(1)(C) LEVIED BY ASSESSING OFFICER IGNORING RELA TED LEGAL DECISION CITED BY THE APPELLANT. 4. BECAUSE THE OBSERVATION BY THE LEANED CIT(A) ALL GROUNDS ARE NOT DEALING IN PARA 4 OF THE APPEAL ORDER AND DO NOT RE QUIRE ANY COMMENT IS CORRECT ALSO CASE AND OBJECTED TO. 3. BRIEFLY STATED FACTS ARE THAT ASSESSEE-COMPANY I S ENGAGED IN MANUFACTURING BUSINESS OF CHANNELS, PATTIES AND FAL SE CEILING CHANNEL. THE CASE OF ASSESSEE WAS PICKED UP FOR SCRUTINY ASSESSM ENT AND SUBSEQUENTLY CASE OF ASSESSEE WAS REOPENED AND NOTICE U/S. 148 O F THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS ISS UED. SUBSEQUENTLY THE ASSESSMENT U/S. 147 R.W.S. 143(3) OF THE ACT WAS FR AMED THEREBY THE ADDITION ITA NO.2439-40/AHD/2012 A.YS. 03-04 & 04-05 M/S ROLEX TIN WORKS V. ITO WD-5(4) BRD PAGE 3 OF RS.4 LAKH WAS ADDED ON ACCOUNT OF UNEXPLAINED IN VESTMENT WAS MADE AND PENALTY U/S. 271(1) OF THE ACT WAS INITIATED FOR C ONCEALMENT OF PARTICULARS. THE PENALTY ORDER U/S. 271(1) WAS PASSED. THEREBY THE PENALTY IMPOSED OF RS.31,500/- WAS IMPOSED. THE ASSESSEE FEELING AGGRI EVED PREFERRED APPEAL BEFORE LD. CIT(A) WHO REDUCED THE PENALTY TO RS.15, 750/-. 4. AGAINST THIS ORDER OF LD. CIT(A) NOW ASSESSEE PR EFERRED APPEAL BEFORE THE TRIBUNAL. LD. AR FOR THE ASSESSEE SUBMITTED THA T IN QUANTUM PROCEEDINGS IN ASSESSEES OWN CASE IN ITA NO.652-653/AHD/2009 D ATED 30-04-2012 HONBLE CO-ORDINATE D BENCH HAS REDUCED THE ADDIT ION AND HE FURTHER SUBMITTED THAT ADDITION WAS MADE ON ESTIMATE BASIS. ON THE CONTRARY, LD. SR- DR STRONGLY SUPPORTED THE ORDER OF ASSESSING OFFICE R. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT IN QUANTUM PROCEE DINGS THE ADDITION MADE BY ASSESSING OFFICER WAS REDUCED BY THE HONBLE CO- ORDINATE BENCH IN ASSESSEES OWN CASE (SUPRA). IN THIS CASE, ADMITTED LY THE ADDITION WAS MADE ON ESTIMATION BASIS AND FIRST APPELLATE AUTHORITY R EDUCED THE PENALTY. UNDER THE PECULIAR FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND IN VIEW OF SMALLNESS OF THE AMOUNT, WE FEEL THAT PENALTY IS NO T JUSTIFIED THEREFORE, SAME IS DIRECTED TO BE DELETED. THIS GROUND OF ASSESSEES A PPEAL IS ALLOWED. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. COMING TO ITA NO.2440/AHD/2012 FOR A.Y. 04-05. 7. THE FACTS ARE IDENTICAL EXCEPT AMOUNT AND SINCE WE HAVE TAKEN A CONSISTENT VIEW IN ITA NO. 2439/AHD/2012, THE APPEA L OF ASSESSEE IN AY ITA NO.2439-40/AHD/2012 A.YS. 03-04 & 04-05 M/S ROLEX TIN WORKS V. ITO WD-5(4) BRD PAGE 4 2004-05 IS ALSO ALLOWED FOLLOWING THE DECISION IN I TA NO. 2439/AHD/2012. THIS GROUND OF ASSESSEES APPEAL IS ALLOWED. 8. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. 9. IN COMBINED RESULT, BOTH APPEAL OF ASSESSEE ARE ALL OWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- (A.K.GARODIA) (KUL BHARAT) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, *DKP #$%- 15/03/2013 ,-. / ' ' ' ' 001 001 001 001 21 21 21 21 / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. $.$04 5 / CONCERNED CIT 4. 5- / CIT (A) 5. 1 78 0004, 04!, ,-. / DR, ITAT, AHMEDABAD 6. 8;< => / GUARD FILE. BY ORDER/ ' , /TRUE COPY/ ?/, $ 04!, ,-. / STRENGTHEN PREPARATION & DELIVERY O F ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 07/03 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE NO 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 07/03 4) DATE OF CORRECTION 08/03 5) DATE OF FURTHER CORRECTION - - 6) DATE OF INITIAL SIGN BY MEMBERS 11/03 7) ORDER UPLOADED ON - - 8) ORIGINAL DICTATION PAD-PART HAS BEEN ENCLOSED IN THE FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 15/03