Vrundavan Ceramics Pvt. Ltd., V. The Assistant Commissioner of Income Tax, Central Circle-1, RAJKOT-GUJARAT

ITA 252/RJT/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 89147 (ITAT-RAJKOT)
• Duration Of Justice: 11 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 18-02-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 08-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR; M L MEENA
• Assessee Lawyers: VIJAY RANJAN; J C RANPURA
• Keywords: Question of law

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH RAJKOT 00 , , BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ ITA NO. 252/RJT/2014 ! '# $'/ ASSESSMENT YEAR: 2007-2008 VRUNDAVAN CERAMICS P. LTD. 8-A, NATIONAL HIGHWAY, VILLAGE DHUVA TAL. WANKANER, DIST. RAJKOT. VS ACIT, CENT.CIR.1 RAJKOT. %& / (APPELLANT) '( %& / (RESPONDENT) REVENUE BY : SHRI M.L. MEENA, CIT-DR, AND SHRI AVINASH KUMAR, DR ASSESSEE(S) BY : SHRI VIJAY RANJAN, ADVOCATE AND SHRI J.C. RANPURA, CA / DATE OF HEARING : 18/02/2015 / DATE OF PRONOUNCEMENT: 27/03/2015 )/ O R D E R PER BENCH: 1. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A)-IV, AHMEDABAD DATED 25.2.2014 FOR THE ASSTT. YEAR 2007-08. 2. THE SOLE GROUND OF APPEAL TAKEN BY THE ASSESSEE READS AS UNDER: 2. THE LD.CIT(A) ERRED ON FACTS AS ALSO IN CONFIRM ING THE LEVY OF PENALTY U/S.271(1)(C) OF THE ACT OF RS.65,19,387/- ON ADDITION MADE BY ESTIMATING PROFIT OF RS.1,93,68,351/-. THE PENALTY U/S.271(1)(C) OF THE ACT MAY KINDLY BE DELETED. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND MATERIAL AVAILABLE ON RECORD. IN THE INSTANT CASE, PENALTY UNDER SECTION 271(1)(C) OF THE ACT WAS LEVI ED BY THE AO OF RS.65,19,387/- IN PURSUANCE TO THE ADDITION OF RS. 1,93,68,351/- ITA NO.252/RJT/2014 (VRUNDAVAN CERAMICS P. LTD.VS. ACI T, RAJKOT) 2 SUSTAINED BY THE TRIBUNAL IN QUANTUM APPEAL AGAINST THE ORDER OF THE CIT(A). 4. ON APPEAL, THE CIT(A) CONFIRMED THE LEVY OF THE AFORESAID PENALTY. 5. WE FIND THAT THE ASSESSEE HAS FILED A FURTHER AP PEAL BEFORE THE HONBLE GUJARAT HIGH COURT FOR ADDITION SUSTAINED B Y THE TRIBUNAL WHICH HAS BEEN ADMITTED BY THE HONBLE HIGH COURT BY AN O RDER IN TAX APPEAL NO.1157 OF 2013 VIDE DATED 26.12.2013 BY FRAMING TH E FOLLOWING SUBSTANTIAL QUESTION OF LAW: 1. WHETHER IN FACTS AND CIRCUMSTANCES OF THE CASE THE INCOME TAX APPELLATE TRIBUNAL HAS ERRED IN LAW IN CONFIRMI NG THE ACTION OF THE ASSESSING OFFICER IN HOLDING THAT THERE WAS SUP PRESSION OF SALES BY THE APPELLANT SOLELY ON THE BASIS OF MATER IAL FURNISHED BY THE CENTRAL EXCISE DEPARTMENT. IN DOING SO LEARNED ITAT FAILED TO APPRECIATE THAT THE ASSESSING OFFICER OUGHT TO HAVE CONDUCTED IN INDEPENDENT INQUIRY. 6. IN VIEW OF THE ABOVE, WE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND RESTORE THE ISSUE OF LEVY OF PENALT Y UNDER SECTION 271(1)(C) OF THE ACT BACK TO THE FILE OF THE AO FOR ADJUDICATION AFRESH IN ACCORDANCE WITH LAW AFTER TAKING INTO CONSIDERATION THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN THE QUANTUM APPEAL. OUR ABOVE VIEW FIND SUPPORT FROM THE DECISION OF THE HONBLE BOMBAY HIG H COURT IN THE CASE OF CIT VS. M/S.WANDAR PVT. LTD., INCOME TAX APPEAL NO.2753 OF 2010 ORDER DATED 21.8.2012 WHEREIN, WHILE DECIDING A SI MILAR ISSUE, THE HONBLE HIGH COURT OBSERVED AS UNDER: 4. AS NOTED EARLIER, THE APPEAL AGAINST THE QUANTU M PROCEEDINGS HAS BEEN ADMITTED AND IS PENDING HEARING IN THIS CO URT. IF THE APPELLANT SUCCEEDS IN THE QUANTUM PROCEEDINGS, IT W OULD NOT EVEN BE NECESSARY TO CONSIDER THE PROCEEDINGS UNDER SECT ION 271. IN THE CIRCUMSTANCES, NO PREJUDICE HAS BEEN CAUSED TO THE APPELLANT EVEN QUA THE PENALTY PROCEEDINGS. 7. NEEDLESS TO MENTION THAT THE AO SHALL ALLOW REAS ONABLE OPPORTUNITY O HEARING TO THE ASSESSEE BEFORE THE DI SPOSAL OF THE APPEAL ITA NO.252/RJT/2014 (VRUNDAVAN CERAMICS P. LTD.VS. ACI T, RAJKOT) 3 AFRESH. THUS, THIS GROUND OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSE. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON FRIDAY THE 27 TH MARCH, 2015 AT AHMEDABAD. SD/- SD/- (KUL BHARAT) JUDICIAL MEMBER ( N.S. SAINI) ACCOUNTANT MEMBER