Shri Dipakkumar Nathuram Ashwani, Surendranagar V. The Income Tax Officer, Ward-2, Surendranagar

ITA 2567/AHD/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5970 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 28-04-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 31-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANITA SURESHHARDASANISR
• Assessee Lawyers: CHHAJED
• Keywords: Revised return

Judgement Text

,, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH (SMC), AHMEDABAD .., , BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER & SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ./ I.T.A. NO.2567/AHD/2013 ( / ASSESSMENT YEAR : 2008-09) SHRI DIPAKKUMAR NATHURAM ASHWANI SHIV CHAMBRS GIDC WADHWAN SURENDRANAGAR-363 030 / VS. THE ITO WARD-2 SURENDRANAGAR $ ./ ./ PAN/GIR NO. : ABBPA 8668 A ( $' / APPELLANT ) .. ( ($' / RESPONDENT ) $') / APPELLANT BY : SHRI M.S. CHHAJED, AR ($'*) / RESPONDENT BY : SMT. ANITA SURESH HARDASANI,SR.DR +,*- / DATE OF HEARING 28/04/2017 ./0*- / DATE OF PRONOUNCEMENT 04 / 05/2017 / O R D E R PER PRADIP KUMAR KEDIA, AM: THE CAPTIONED APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-XVI, AHM EDABAD [CIT(A) IN SHORT] DATED 29/08/2013 FOR THE ASSESSMENT YEAR (AY) 2008-09. 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE RE AD AS UNDER:- ITA NO.2567/AHD /2013 DIPAKKUMAR NATHURAM ASHWANI VS. ITO ASST.YEAR 2008-09 - 2 - 1) THE ORDER PASSED BY THE LEARNED CIT(A) IS AGAIN ST LAW, EQUITY & JUSTICE. 2) THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE ORDER OF LD.A.O. FOR LEVY OF PENALTY U/S.271(1)(C) OF THE ACT OF RS.12860/-. 3. AS PER GROUNDS RAISED, THE ASSESSEE IS AGGRIEVED BY THE IMPOSITION OF PENALTY OF RS.72,860/- UNDER S.271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'THE ACT') BY THE ASSES SING OFFICER (AO) AND SUSTAINED BY THE CIT(A). 4. BRIEFLY STATED, THE ASSESSEE FILED THE RETURN OF INCOME FOR AY 2008-09 DECLARING A TOTAL INCOME OF RS.3,52,970/-. THE RET URN WAS SUBJECTED TO SCRUTINY ASSESSMENT. THE AO INTER ALIA MADE ADDITION ON ACCOUNT OF UNACCOUNTED CONTRACT RECEIPTS OF RS.2,15,144/- TO T HE RETURNED INCOME AND IMPOSED PENALTY THEREON. 5. WE HAVE PERUSED THE ORDERS OF THE AUTHORITIES BE LOW AND CONSIDERED THE RIVAL SUBMISSION. WE OBSERVE THAT T HE CAUSE FOR IMPOSITION OF PENALTY IS ADDITION ON ACCOUNT OF UND ERREPORTING OF CONTRACT RECEIPTS IN THE RETURN OF INCOME QUA THE INCOME ON WHICH THE TDS WAS DEDUCTED AND REPORTED IN 26AS. THE GROSS CONTRACT RECEIPT SHOWN IN THE ORIGINAL RETURN WAS RS.5,99,85,085/- WHICH WAS REVI SED TO RS.6,02,98,775/- IN THE SUBSEQUENT REVISED RETURN. THE AO IMPOSED PENALTY ON THE DIFFERENTIAL CONTRACT RECEIPTS ON TH E GROUND THAT THE ITA NO.2567/AHD /2013 DIPAKKUMAR NATHURAM ASHWANI VS. ITO ASST.YEAR 2008-09 - 3 - ASSESSEE HAS CONCEALED AS WELL AS FURNISHED INACCUR ATE PARTICULARS OF INCOME TO THIS EXTENT. IT IS THE CASE OF THE ASSES SEE, ON THE OTHER HAND, THAT THE CONTRACTED RECEIPTS WERE SHOWN AT A LESSER FIGURE POINT TO MISTAKE FROM THE EXECUTIVE ENGINEER IN FORM NO.16A ISSUED W HERE THE VALUE OF WORK DONE WAS WRONGLY SHOWN. WE FIND THAT THE ASSE SSEE HAS PRODUCED BOOKS OF ACCOUNTS AT THE TIME OF THE ASSESSMENT PRO CEEDINGS. IT IS NOT DISCERNIBLE FROM THE RECORD WHETHER THE DIFFERENTIA L INCOME WAS ACTUALLY RECEIVED OR NOT. IN THE CIRCUMSTANCES, THE BONAFID ES PLEADED BY THE ASSESSEE CANNOT BE OUTRIGHTLY REJECTED. THE INCOME HAS EVENTUALLY BEEN OFFERED IN THE COURSE OF ASSESSMENT AND NOT CONTEST ED. IT IS WELL SETTLED THAT PENALTY UNDER S.271(1)(C) OF THE ACT IS NOT AU TOMATIC. MITIGATING CIRCUMSTANCES EXISTS IN THE PRESENT CASE WHICH CALL S FOR DELETION OF PENALTY. CONSEQUENTLY, WE FIND MERIT IN THE APPEAL OF THE ASSESSEE AND DIRECT THE AO TO DELETE THE PENALTY. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . THIS ORDER PRONOUNCED IN OPEN COURT ON 04/ 05/2017 SD/- SD/- (..) ( ) ( S.S. GODARA ) ( PRADIP KUMAR KEDIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 04/ 05 /2017 4..+,.+../ T.C. NAIR, SR. PS ITA NO.2567/AHD /2013 DIPAKKUMAR NATHURAM ASHWANI VS. ITO ASST.YEAR 2008-09 - 4 - !'#$#! / COPY OF THE ORDER FORWARDED TO : 1. $' / THE APPELLANT 2. ($' / THE RESPONDENT. 3. 567- 8- / CONCERNED CIT 4. 8- ( ) / THE CIT(A)-XVI, AHMEDABAD 5. 9:-+67 , 670 , 5 / DR, ITAT, AHMEDABAD 6. <, / GUARD FILE. / BY ORDER, (9-- //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 1.5.17 (DICTATION-PAD 5-PA GES ATTACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 2.5.17 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.4.5.17 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 4.5.17 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER