Shri Pramod Baburao Shetty., V. Income Tax Officer, Ward-2(2), Belgaum

ITA 247/PAN/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93476 (ITAT-PANAJI)
• Duration Of Justice: 10 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 15-06-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 07-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NISHANT K
• Section: 40A(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI GEORGE MATHAN , HONBLE JUDICIAL MEMBER AND SHRI N.K. BILLAIYA , HONBLE ACCOUNTANT MEMBER ITA NO. 2 47 /PNJ/2014 (ASST. YEAR : 200 9 - 1 0 ) SHRI PRAMOD BABURAO SHETTY, RAIBAG RAILWAY STATION AREA, GOODSHED ROAD, RAIBAG. VS. ITO , WARD - 2(2) BELGAUM PAN NO. ANMPS 6899 L (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE DEPARTMENT BY : SHRI NISHANT K. - D.R. DATE OF HEARING : 15 / 0 6 /2015 . DATE OF PRONOUNCEMENT : 15 / 0 6 /201 5 . O R D E R PER N.K. BILLAIYA THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF L D. CIT (A), BELGAUM , DATED 2 2/0 5 /201 4 PERTAINING TO A.Y. 2009 - 10 . 2. THE SOLE GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT. 2 ITA NO. 247 /PNJ/2014 3. NONE ATTENDED ON BEHALF OF THE ASSESSEE . 4 . WE HAVE HEARD LD. DR AT LENGTH AND CAREFULLY PERUSED THE ORDERS OF THE AUTHORITIES BELOW. 5 . IN THIS CASE, RETURN WAS FILED ELECTRONICALLY ON 29/09/2009 DECLARING TOTAL INCOME OF RS. 5,66,640/ - . THE ASSESSEE IS A TRANSPORT CONTRACTOR, TRANSPORTING SUGAR FROM GODAVARI SUGAR MILLS, MUDHOL TO RAIBAG RAILWAY STATION BY HIRING T RUCKS LOCALLY . WHILE SCRUTINIZING THE RETURN OF INCOME AND VERIFYING THE REGISTER MAINTAINED FOR LORRY HIRE CHARGES, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS MADE SOME LORRY HIRE CHARGES EXCEEDING RS. 20,000/ - IN VIOLATION OF THE PROVISIONS OF SEC. 40A(3) OF THE ACT. THE TOTAL AMOUNT OF SUCH PAYMENT WAS RS. 10,44,790/ - . SINCE THE ASSESSEE HAS VIOLATED THE PROVISIONS OF SEC. 40A(3), THE ENTIRE AMOUNT OF RS. 10,44,790/ - WAS ADDED TO THE RETURNED INCOME OF THE ASSESSEE. PENALTY PROC E EDINGS WERE SEPARATELY INITIATED. A PERUSAL OF THE ASSESSMENT ORDER SHOW S THAT THE DISALLOWANCE HAS BEEN MADE BY THE ASSESSING OFFICER SIMPLY BECAUSE OF THE SPECIFIC PROVISIONS OF SEC. 40A(3 ) OF THE ACT WHEREIN CASH PAYMENT EXCEEDING TO 3 ITA NO. 247 /PNJ/2014 RS. 20,000/ - HAS TO BE DISALLOWED. WE FIND THAT AT NO PLACE, THE ASSESSING OFFICER HAS STATED THAT THE EXPENSES A R E INFLATED OR THE EXPENSES ARE BOGUS OR EXPENSES ARE NOT GENUINE OR THE EXPENSES HAVE NOT BEEN INC URRED FOR THE PURPOSES OF BUSINESS. NONE OF THE CONDITIONS APPLICABLE FOR THE DISALLOWANCE OF ANY EXPENDITURE WAS APPLICABLE. THE DISALLOWANCE HAS BEEN MADE PURELY ON THE APPLICATION OF SEC.40A(3) OF THE ACT. IN OUR CONSIDERED OPINION, THIS CANNOT BE CONSIDERED A S CONCEALING THE PARTICULARS OF INCOME AS THE ASSESSING OFFICER FAILED TO BRING OUT ANY CASE OF CONCEALMENT OF PARTICULARS OF INCOME . D RAWING SUPPORT FROM THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. RELIANCE PETROPRODUCTS (P) LTD. (322 ITR 158) , T HE ASSESSING OFFICER IS DIRECTED TO DELETE THE PENALTY , SO LEVIED. THE ORDER OF THE LD. CIT(A) IS SET ASIDE. 6 . IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED. ( ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH JUNE , 201 5 ). S D / - S D / - ( GEORGE MATHAN ) ( N.K. BILLA I YA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 1 5 T H JUNE , 201 5 . VR/ - 4 ITA NO. 247 /PNJ/2014 COPY TO: 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE LD. CIT 4 . THE CIT(A) 5 . THE D.R 6 . GUARD FILE. BY ORDER ASSISTANT REGISTRAR I.T.A.T., PANAJI 5 ITA NO. 247 /PNJ/2014 DATE INITIAL ORIGINAL DICTATION PAD IS ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 1 5 .06.2015 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 1 6 .06.2015 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 1 6 /06/2015 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 1 6 /06/2015 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 1 6 /06/2015 SR.PS 6. DATE OF PRONOUNCEMENT 1 5 /06/2015 SR.PS 7. FILE SENT TO THE BENCH CLERK 1 6 /06/2015 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER