Shri Ganesh Vasantlal Jariwala, Surat V. The Income tax Officer,Ward-2(4), Surat

ITA 2470/AHD/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0387 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 30-09-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 18-10-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAHUL KUMAR
• Assessee Lawyers: R B SHAH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER ./ ITA NO. 2470/AHD/2013 / ASSESSMENT YEAR : 2007-08 GANESH VASANTLAL JARIWALA, 2/3979, CHOGAN STREET, SAGRAMPURA, SURAT PAN : AFYPJ 0282 L VS INCOME TAX OFFICER, WARD 2 (4), SURAT / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI R.B. SHAH, CA REVENUE BY : SHRI RAHUL KUMAR, SR DR / DATE OF HEARING : 30/09/2016 / DATE OF PRONOUNCEMENT: 30/09/2016 / O R D E R THIS IS ASSESSEES APPEAL CHALLENGING IMPOSITION OF PENALTY OF RS.1,42,558/- U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2. THE LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT T HE IMPUGNED ADDITION WAS AGITATED BY ASSESSEE BEFORE ITAT WHICH BY ORDER DATED 19.09.2014 IN QUANTUM PROCEEDINGS RESTRICTED THE ADDITION @ 8% OF THE CASH DEPOSITS OF RS.33,39,500/- ON ESTIMATE BASIS. THE LD. COUNSEL FOR THE ASSESSEE ALSO CONTENDS THAT ITAT IN THE CASE OF MURARILAL RATANLA L AGARWAL VS. ACIT IN IT(SS)A NOS. 573 & 615/AHD/2012, HAS HELD THAT PENA LTY CANNOT BE IMPOSED BASED ON ESTIMATED INCOME. 3. LD. DR, ON THE OTHER HAND, CONTENDS THAT IT IS C LEAR THAT ASSESSEE WAS INDULGING IN UNDISCLOSED INVESTMENTS. MERELY BECAU SE A LENIENT VIEW IS TAKEN ON THE ESTIMATE OF THE UNDISCLOSED TURNOVER, IT CANNOT BE HELD THAT THERE IS NO FAULT ON THE PART OF THE ASSESSEE. SINC E THE UNDISCLOSED NATURE OF SMC-ITA NO. 2470/AHD/2013 GANESH VASANTLAL JARIWALA VS. ITO AY : 2007-08 2 TRANSACTIONS IS NOT DISPUTED, THE PENALTY ON THE BA LANCE AMOUNT SUSTAINED BY THE ITAT DESERVES TO BE UPHELD. 4. I HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. I FIND MERIT IN THE CONTENTIONS OF THE LD. DR. IT HAS NOT BEEN DIS PUTED BY THE ASSESSEE THAT THERE WERE UNDISCLOSED TRANSACTIONS; ONLY INCOME TH EREFROM HAS BEEN SUBJECTED TO DIFFERENT RATES AND FINALLY ITAT RESTR ICTED THE ADDITION AT 8% OF THE TOTAL CASH DEPOSITS ON ESTIMATE BASIS. HOWEVER , THE FACT REMAINS THAT THE ASSESSEE HAS INDULGED IN UNDISCLOSED TRANSACTIONS. IN VIEW THEREOF, I FIND MERIT IN THE CONTENTIONS OF LD. DR THAT THE PENALTY U/S 271(1)(C) SHOULD BE IMPOSED ON THE BALANCE AMOUNT RETAINED BY THE ITAT. THE AO WILL ACCORDINGLY WORK OUT THE QUANTUM OF PENALTY @ 100% OF THE TAX SOUGHT TO BE EVADED. THE APPEAL OF THE ASSESSEE IS ACCORDING LY PARTLY ALLOWED. 5. IN THE RESULT, ASSESSEES APPEAL IS PARTLY ALLOW ED. ORDER PRONOUNCED IN THE COURT ON 30 TH SEPTEMBER, 2016 AT AHMEDABAD. SD/- R.P. TOLANI (JUDICIAL MEMBER) AHMEDABAD; DATED 30/09/2016 *BIJU T. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD