The ITO, Ward-6(2), Ahmedabad V. Shri Devichand Bheruchand Bafna, Ahmedabad

ITA 2563/AHD/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6154 (ITAT-AHMEDABAD)
• Duration Of Justice: 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 01-07-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 27-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PAMIL SHAH
• Keywords: Set aside
• Section: 271(1)(c)

Judgement Text

ITA NO.2563/A HD/2010 . ASS ESSMENT YEAR 2006- 07 1 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH,AHM EDABAD. (BEFORE SHRI T.K. SHARMA & SHRI A. K. GARODIA) I.T.A. NO. 2563/AHD/2010 (ASSESSMENT YEAR 2006-07) INCOME TAX OFFICER, WARD 6(2), C.U.SHAH BUILDING, ASHRAM ROAD, AHMEDABAD. (APPELLANT) VS. SHRI DEVICHAND BEHRUCHAND BAFNA A-862, OXFORD TOWER, GURUKUL, AHMEDABAD. (RESPONDENT) PAN: AAAPB 8734 E APPELLANT BY : SHRI SAMIR TEKRIWAL, SR. D.R . RESPONDENT BY : SHRI PAMIL SHAH. ( (( ( )/ )/)/ )/ ORDER PER: SHRI A.K. GARODIA,A.M. THIS IS A REVENUES APPEAL DIRECTED AGAINST THE OR DER OF LD. C.I.T.(A)- XXI, AHMEDABAD DATED 18-6-2010 FOR ASSESSMENT YEAR 2006-07. 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER:- 1. THE LD. COMMISSIONER OF INCOME TAX(A)-XXI, AHME DABAD HAS ERRED IN LAW AND ON FACTS IN CANCELING THE PENALTY LEVIED OF RS. 2,87,972/- UNDER SECTION 271(1)(C) OF THE I. T. ACT . ITA NO.2563/A HD/2010 . ASS ESSMENT YEAR 2006- 07 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT (A)-XXI, AHMEDABAD OUGHT TO HAVE UPHELD THE ORDER O F THE ASSESSING OFFICER. 3. IT IS THEREFORE, PRAYED THAT THE ORDER OF THE LD . CIT(A)-XXI, AHMEDABAD MAY BE SET ASIDE AND THAT OF THE ASSESSIN G OFFICER BE RESTORED. 3. BRIEF FACTS ARE THAT IN THE ASSESSMENT ORDER, TH E A.O. MADE ADDITION OF RS.8,52,876/- U/S. 68 BEING UNSECURED LOAN FROM SIX PERSONS. THE ASSESSMENT WAS COMPLETED BY THE A.O. U/S.144 OF THE ACT. THERE AFTER, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT (A). IN THE MEANTIME THE A.O. INITIATED THE PENALTY PROCEEDINGS U/S. 271(1) (C) O F THE ACT. THE LD. CIT (A) IN QUANTUM PROCEEDINGS DELETED THIS ADDITION ON THI S BASIS THAT THESE LOAN CREDITORS ARE OLD LOAN AND NO FRESH LOAN FROM THESE PERSONS WAS TAKEN IN THE PRESENT YEAR. THE REVENUE HAS FILED AN APPEAL BEFO RE THE TRIBUNAL AGAINST THE ORDER IN QUANTUM PROCEEDINGS. THE SAME IS PEND ING BEFORE THE TRIBUNAL. IN THE MEANTIME, THE A.O. IMPOSED PENALTY ON THIS A DDITION AND THE PENALTY IMPOSED BY HIM IS OF RS.2,86,972/-. THE LD. CIT (A) DELETED THIS PENALTY ON THE GROUND THAT WHEN THE QUANTUM ADDITION HAS BEEN DELETED, PENALTY CANNOT SURVIVE. NOW, THE REVENUE IS IN FURTHER APPEAL AGA INST THIS ORDER OF THE LD. C.I.T. (A) AS PER WHICH HE HAS DELETED THE PENALTY. BOTH THE SIDES AGREED THAT ALTHOUGH THE QUANTUM APPEAL IS PENDING BEFORE THE TRIBUNAL, PENALTY APPEAL CAN BE DECIDED BECAUSE THE ASSESSEE HAS SUBM ITTED IN THE PAPER BOOK THE BALANCE SHEET OF THE ASSESSEE FOR THE PRESENT Y EAR AS WELL FOR THE PRECEDING YEAR I.E. FOR THE ACCOUNTING YEAR ENDED 3 1-3-2006 AND 31-3-2005. THE ASSESSEE HAS ALSO SUBMITTED A COPY OF LEDGER AC COUNT OF LOAN CREDITORS SHOWING THAT NO FRESH LOAN HAS BEEN TAKEN BY THE AS SESSEE IN THE PRESENT YEAR FROM ANY OF THESE PERSONS AND ALL BALANCES ARE FOR OPENING BALANCES AND ITA NO.2563/A HD/2010 . ASS ESSMENT YEAR 2006- 07 3 INTEREST CREDITED IN THE PRESENT YEAR IN SOME CASES . UNDER THESE FACTS, WE DECLINE TO INTERFERE IN THE ORDER OF THE LD. CIT (A ), AS PER WHICH HE HAS DELETED THE PENALTY BECAUSE WHEN NO FRESH LOAN IS T AKEN IN THIS PRESENT YEAR, THERE CANNOT BE CONCEALMENT OF INCOME FOR WHICH PEN ALTY CAN BE IMPOSED. 4. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN OPEN COURT ON 08 - 07 - 2 011. SD./- SD./- (T. K. SHARMA) (A.K. GARODIA) JUDICIAL MEMBER ACCOUNT ANT MEMBER AHMEDABAD. DATED: 08- 07 - 2011. S.A.PATKI. COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS)-XXI, AHMEDABAD. 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD. ITA NO.2563/A HD/2010 . ASS ESSMENT YEAR 2006- 07 4 1.DATE OF DICTATION 1 - 7 -2011 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 4 /7 / 2011 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S - -2011. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT - -2011 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S - -2011 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK - -2011. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..