Smt. Anjanaben H.Shah, Ahmedabad V. The Income Tax Officer, Ward-10(2), Ahmedabad

ITA 2441/AHD/2014

• Counselvise Citation: 244120514 RSA 2014
• Duration Of Justice: 5 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 23-02-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 03-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANTOSH KARNANI SR DR

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD .. , , BEFORE SHRI BEFORE SHRI G.D. AGARWAL,VICE PRESIDENT (AZ) AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ I.T.A. NO. 2441/AHD/2014 ( / ASSESSMENT YEAR : 2008-09) SMT.ANJANABEN H.SHAH 2, PARASKUNJ OPP.MUNICIPAL MARKET NAVRANGPURA AHMEDABAD-380 009 / VS. THE ITO WARD-10(2) AHMEDABAD ! '# ./ ./ PAN/GIR NO. : BDIPS 1519 L ( !% / APPELLANT ) .. ( &'!% / RESPONDENT ) !%(' / APPELLANT BY : MS.URVASHI SHODHAN, A.R. &'!%)(' / RESPONDENT BY : SHRI SANTOSH KARNANI, SR.DR * +) ,# / DATE OF HEARING 23/02/2015 -./0 ) ,# / DATE OF PRONOUNCEMENT 27/02/2015 '/ O R D E R PER BENCH : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-XVI, AHMEDAB AD (CIT(A) IN SHORT) DATED 18/07/2014 PERTAINING TO ASSESSMEN T YEAR (AY) 2008-09. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL:- 1. LD. CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING PENALTY LEVIED BY AO OF RS.5,73,470/- ERRONEOUSLY U/S.271(1)(C) OF TH E ACT. LD.CIT(A) ITA NO.244 1/AH D/2014 SMT. ANJANABEN H. SHAH VS. ITO ASST.YEAR 2008-09 - 2 - OUGHT TO HAVE DELETED PENALTY LEVIED WHEN APPELLANT NEITHER FURNISHED INACCURATE PARTICULARS OF INCOME NOR CONC EALED ANY INCOME. IT BE SO HELD NOW. 2. LD.CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING P ENALTY IGNORING THE SUBMISSIONS THAT APPELLANT HAD NO SUCH SOURCE O F INCOME TO MAKE ALLEGED UNEXPLAINED DEPOSITS AND FURTHER THE S OURCE OF DEPOSITS WAS CLEARLY VERIFIED AND PROVED IN ASSESSM ENT PROCEEDINGS. LD.CIT(A) OUGHT TO HAVE DELETED PENALTY LEVIED ON A DDITION MADE ON PROTECTIVE BASIS. IT BE SO HELD NOW. 3. LD.CIT(A) ERRED IN LAW AND ON FACTS IN NOT APPRECIA TING THAT PENALTY IS NOT LEVIABLE IN ABSENCE OF REQUISITE SATISFACTIO N ESSENTIAL FOR HOLDING CHARGE OF CONCEALMENT IN ASSESSMENT MADE ON PROTECTIVE BASIS EVEN IF LATER CONVERTED TO SUBSTANTIVE ADDITI ON IN APPELLATE PROCEEDINGS. LD.CIT(A) OUGHT TO HAVE QUASHED PENAL TY ORDER PASSED AGAINST TENETS OF LAW. IT BE SO HELD NOW. 4. LD. CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING PENALTY LEVIED WITHOUT CORRECTLY APPRECIATING RATIO OF THE JUDGMEN TS RELIED UPON BY THE APPELLANT DIRECTLY APPLICABLE TO THE FACTS OF T HE CASE. LD.CIT(A) OUGHT TO HAVE DELETED PENALTY LEVIED WHEN THE APPEL LANT HAS NEITHER CONCEALED INCOME NOR FURNISHED INACCURATE PARTICULA RS OF INCOME. IT BE SO HELD NOW. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER, ED IT, DELETE, MODIFY OR CHANGE ALL OR ANY OF THE GROUNDS OF APPEAL AT TH E TIME OF OR BEFORE THE HEARING OF THE APPEAL. 2. BRIEFLY STATED FACTS ARE THAT THE CASE OF THE AS SESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S.143( 3) OF THE INCOME TAX ACT,1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VIDE ORDER DATED 23/12/2010, THEREBY THE ASSESSING OFFICER (AO IN SHORT) MADE ADDITION OF RS.19,89,225/- BEING THE CREDIT ENTRIES REFLECTED IN THE JOINT ACCOUNT HELD BY THE ASSESSEE WITH HER SON; NAMELY, RAHUL H.SHAH ON PROTECTIVE BASIS. THE AO WHILE MAKING THE ADDITIO N ALSO INITIATED ITA NO.244 1/AH D/2014 SMT. ANJANABEN H. SHAH VS. ITO ASST.YEAR 2008-09 - 3 - PENALTY PROCEEDINGS U/S.271(1)(C) OF THE ACT. THE PENALTY WAS IMPOSED VIDE ORDER DATED 22/06/2012 ON THE ADDITION OF RS.1 9,89,225/-. 3. AT THE OUTSET, THE LD.COUNSEL FOR THE ASSESSEE S UBMITTED THAT THIS ADDITION OF RS.19,89,225/- WAS CHALLENGED IN APPEAL BEFORE THE COORDINATE BENCH (ITAT AHMEDABAD BENCH A) AND THE TRIBUNAL IN ITA NO.2858/AHD/2011 FOR AY 2008-09 VIDE ORDER DAT ED 28/08/2014 HAS ALLOWED THE APPEAL OF THE ASSESSEE AND DELETED THE ADDITION. THEREFORE, LD.COUNSEL FOR THE ASSESSEE SUBMITTED TH AT THE PENALTY DOES NOT SURVIVE. 3.1. ON THE CONTRARY, LD.SR.DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE DECISION OF COORDINATE BENCH IN ASSE SSEES OWN CASE(SUPRA). WE FIND THAT THIS TRIBUNAL (ITAT AHME DABAD A BENCH) IN QUANTUM APPEAL (ITA NO.2858/AHD/2011-FOR AY 2008 -09) VIDE ITS ORDER DATED 08/07/2014 HAS DELETED THE ADDITION BY OBSERVING AS UNDER:- 6.2 IN A SITUATION WHEN A TAX PAYER, I.E., A SON IS DULY DISCLOSING THE SAID TRANSACTION IN THE REGULAR COURSE IN HIS BOOKS OF ACCOUNT AND THOSE ENTRIES WERE DULY DISCLOSED IN THE INCOME TAX RETUR N THEN THOSE VERY ENTRIES ARE NOT REQUIRED TO BE AGAIN ASSESSED, IF R EVENUE IS NOT SATISFIED, ITA NO.244 1/AH D/2014 SMT. ANJANABEN H. SHAH VS. ITO ASST.YEAR 2008-09 - 4 - IN THE HANDS OF THAT PERSON WHO IS ONE OF THE ACCOU NT HOLDER. ALTHOUGH, THE NAME OF THE ASSESSEE APPEARED AS FIRST NAME IN THE SAID BANK ACCOUNT BUT FOR ALL PRACTICAL PURPOSES THE SON WAS OPERATING THAT ACCOUNT AS IS EVIDENT FROM SEVERAL EVIDENCES WHICH WERE IN THE NOTICE OF THE REVENUE DEPARTMENT. THEREFORE ON MERITS, WE ARE OF THE VIEW THAT THE ENTRIES BEING EXPLAINED IN THE CASE OF THE SON AND THE REVENUE DEPARTMENT HAS NOT TAKEN ANY ACTION IN THE CASE OF THE SON, THEREFORE, THERE WAS NO JUSTIFICATION TO ADD THOSE VERY ENTRIE S IN THE HANDS OF HER MOTHER, I.E., THE APPELLANT BEFORE US. 4.1. IN VIEW OF THE FACT THAT IN QUANTUM APPEAL, TH E ADDITION AS MADE BY THE AO AND CONFIRMED BY THE LD.CIT(A) HAS BEEN DELE TED BY THE TRIBUNAL, THEREFORE, THE PENALTY IMPOSED ON SUCH ADDITION DOE S NOT SURVIVE. HENCE, WE DIRECT THE AO TO DELETE THE PENALTY. THUS, GROU ND RAISED IN THE ASSESSEES APPEAL ARE ALLOWED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE COURT ON FRIDAY, THE 27 TH DAY OF FEBRUARY, 2015 AT AHMEDABAD. SD/- SD/- ( .. ) ( ) ( G.D. AGARWAL ) ( KUL BHARAT ) VICE PRESIDENT (AZ) JUDICIAL MEMBER AHMEDABAD; DATED 27 / 02 /2015 4,..* , .*../ T.C. NAIR, SR. PS ITA NO.244 1/AH D/2014 SMT. ANJANABEN H. SHAH VS. ITO ASST.YEAR 2008-09 - 5 - !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. !% / THE APPELLANT 2. &'!% / THE RESPONDENT. 3. 567 8 / CONCERNED CIT 4. 8 ( ) / THE CIT(A)-XVI, AHMEDABAD 5. 9 :&*67 , ,670 , 5 / DR, ITAT, AHMEDABAD 6. : <= + / GUARD FILE. / BY ORDER, ' 9& //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 23.2.15(DICTATION-PAD 3- P AGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ..24.2.15 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.27.2.15 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 27.2.15 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER