Asian Petroproducts & Exports Ltd., Baroda V. The Dy.CIT., Circle-1(1), Baroda

ITA 2481/AHD/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8884 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 16-03-2017
• Assessment Year: 2004-2005
• Appeal Filed On: 21-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G C DAXINI
• Assessee Lawyers: M K PATEL
• Keywords: Additional evidence
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH (BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER & SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER) ITA. NO: 2481/AHD/2013 (ASSESSMENT YEAR: 2004-05) ASIAN PETROPRODUCTS & EXPORTS LTD., 204/205, STERLING CENTRE, R.C. DUTT ROAD, ALKAPURI, BARODA V/S DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 1(1),BARODA (APPELLANT) (RESPONDENT) PAN: AACCA8443J APPELLANT BY : SHRI M.K. PATEL, AR RESPONDENT BY : SHRI G. C. DAXINI, SR. D.R. ( )/ ORDER DATE OF HEARING : 16-03-2017 DATE OF PRONOUNCEMENT : 20-03-2017 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE LD. CIT(A)- I, BARODA DATED 25.07.2013 PERTAINING TO A.Y. 2004- 05. ITA NO. 2481 /AHD/2013 . A.Y. 2004-05 2 2. THE ONLY GRIEVANCE OF THE ASSESSEE RELATES TO THE L EVY OF PENALTY OF RS. 4.25 LACS U/S. 271(1)(C) OF THE ACT. 3. THE ROOTS FOR THE LEVY OF PENALTY LIE IN THE ASSESS MENT ORDER DATED 31.10.2006 MADE U/S. 143(3) OF THE ACT. THE RETURNE D LOSS OF RS. 2,40,05,449/- WAS ASSESSED AT REVISED TOTAL INCOME AT NIL. THE REVISED TOTAL INCOME ASSESSED BY THE A.O., INTERALIA, CONSISTED O F SHORT TERM CAPITAL GAIN OF RS. 1,22,136/-, ADDITION ON ACCOUNT OF OUTSTANDI NG CREDITORS AT RS. 1,23,68,527/- AND ADDITION ON ACCOUNT OF CASH CREDI TS OF RS. 10,20,000/-. 4. SO FAR AS THE ADDITION ON ACCOUNT OF SHORT TERM CAP ITAL GAIN OF RS. 1,22,136/- IS CONCERNED, DURING THE COURSE OF THE ASSESSMENT P ROCEEDINGS ITSELF, THE ASSESSEE HAS ACCEPTED THE OMISSION AS INADVERTENT A ND ACCEPTED THE ASSESSMENT ORDER ON THIS ACCOUNT WITHOUT PREFERRING ANY APPEAL. THE ADDITION ON ACCOUNT OF OUTSTANDING CREDITORS OF RS. 1,23,68,527/- WAS RESTRICTED TO RS. 40,000/- BY THE FIRST APPELLATE A UTHORITY AND THE TRIBUNAL IN ITA NO. 512/AHD/2010 VIDE ORDER DATED 13.03.2015 HAS DELETED THE ADDITION OF RS. 40,000/- SUSTAINED BY THE LD. CIT(A ). 5. SINCE, THE ISSUE RELATING TO THE SHORT TERM CAPITAL GAIN WHICH COULD NOT BE ADDED DUE TO THE INADVERTENT MISTAKE OF THE ASSESSE E WAS IMMEDIATELY ACCEPTED BY THE ASSESSEE DURING THE COURSE OF THE A SSESSMENT PROCEEDINGS ITSELF, IN OUR CONSIDERED OPINION, THIS WOULD NOT T RIGGER THE PROVISIONS OF SECTION 271(1)(C) OF THE ACT. THEREFORE, NO PENALTY IS LEVIABLE TO THIS EXTENT. ITA NO. 2481 /AHD/2013 . A.Y. 2004-05 3 6. SINCE, THE ADDITION SUSTAINED BY THE LD. CIT(A) WAS SUBSEQUENTLY DELETED BY THE TRIBUNAL, THERE REMAINS NO CAUSE FOR THE LEVY O F PENALTY. WE, ACCORDINGLY, DIRECT THE A.O. TO DELETE THE PENALTY ON THE ADDITIONS MADE ON ACCOUNT OF SHORT TERM CAPITAL GAIN AND OUTSTANDING CREDITORS. 7. THE ONLY SURVIVING ADDITION NOW REMAINS ARE THAT ON ACCOUNT OF CASH CREDITS OF RS. 10.20 LACS. WE FIND THAT THE TRIBUNAL IN ITA NO. 512/AHD/2010 VIDE ORDER DATED 13.03.2015 HAS RESTORED THIS ADDITION T O THE FILES OF THE A.O. FOR FRESH CONSIDERATION. THE RELEVANT FINDINGS OF THE T RIBUNAL READ AS UNDER:- 17. WE FIND THAT IT IS NOT IN DISPUTE THAT THE NAME , ADDRESS AND CONFIRMATION OF ALL TEN PERSONS IN QUESTION WERE FILED BEFORE THE L OWER AUTHORITIES. THE LOWER AUTHORITIES HAVE NOT ACCEPTED THE CLAIM OF THE ASSE SSEE ON THE GROUND THAT THE PAN OF THE TAX-PAYERS IN QUESTION WERE NOT FURNISHE D, THE AMOUNT WAS RECEIVED IN CASH IN SPITE OF BANK ACCOUNT BEING MAINTAINED B Y THESE TEN PERSONS. FURTHER, IT WAS ALSO OBSERVED BY THE CIT{A) THAT TEN PERSONS IN QUESTION WERE RELATIVES OF THE MANAGING DIRECTOR OF THE ASSESSEE-COMPANY. TH US, WE FIND THAT THE IDENTITIES OF THE SHARE APPLICANTS ARE NOT IN DOUBT . THE REVENUE HAS BROUGHT NO MATERIAL, AFTER PROPER VERIFICATION, TO SHOW THAT T HE SHARE APPLICANTS IN QUESTION WERE NOT GENUINE. BEFORE US, THE AR OF THE ASS ESSEE FILED ADDITIONAL EVIDENCE IN THE FORM OF AFFIDAVITS OF TEN PERSONS. BEF ORE THESE ADDITIONAL EVIDENCES ARE ACCEPTED, IN OUR CONSIDERED VIEW, IT IS IN THE INTEREST OF JUSTICE THAT THE AO EXAMINE THE SAME. THE AR OF THE ASSESSEE SUBMITTED THAT THE ISSUE, THEREFORE, BE RESTORED TO THE FILE OF AO FOR EXAMINATION OF AD DITIONAL EVIDENCES NOW FILED BY THE ASSESSEE, IN THE CIRCUMSTANCES, IT SHALL BE IN THE INTEREST OF JUSTICE TO RESTORE THE ISSUE BACK TO THE FILE OF THE AO FOR ADJUDICATI ON AFRESH AFTER PROPER VERIFICATION. THE ASSESSEE IS ALSO DIRECTED TO COOPERATE WITH THE AO AND FILE ALL THE MATERIALS, WHICH IT WISHES TO RELY UPON BEFORE THE AO, AS AND WHEN CALLED ITA NO. 2481 /AHD/2013 . A.Y. 2004-05 4 UPON BY THE AO. WE ORDER ACCORDINGLY. THUS, THI S GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 8. SINCE, THE QUANTUM ADDITION HAS BEEN RESTORED TO TH E FILES OF THE A.O, IN OUR CONSIDERED OPINION; THE LEVY OF PENALTY HAS TO BE DECIDED AFTER DECIDING THE IMPUGNED ADDITIONS. WE, THEREFORE, RESTORE THE MATTER RELATING TO THE LEVY OF PENALTY ON THIS ACCOUNT TO THE FILES OF THE A.O. THE A.O. IS DIRECTED TO DECIDE THE LEVY OR OTHERWISE AFTER DECIDING THE ISS UE IN THE LIGHT OF THE FINDINGS OF THE TRIBUNAL (SUPRA). 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 20 - 03- 20 17 SD/- SD/- (RAJPAL YADAV) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY ACCOUNTANT MEMBER AHMEDABAD: DATED 20 /03/2017 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD