Shri Vishal Neeraj Agrawal, Baroda V. The Dy.CIT.,Circle-2(2), Baroda

ITA 2573/AHD/2011

• Counselvise Citation: 257320514 RSA 2011
• Duration Of Justice: 3 year(s) 9 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 14-07-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 17-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL SRDR
• Keywords: Capital asset; Question of law; Non-deduction of tax; Bad and doubtful debts; Revised return; Revenue expenditure; Capital expenditure
• Section: 147; 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD , , BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER 1. ./ I.T.A.NO.2572/AHD/2011A.Y.2004-05 2. ./ I.T.A.NO.2573/AHD/2011A.Y.2005-06 3. ./ I.T.A.NO.2574/AHD/2011A.Y.2006-07 1-3. SHRI VISHAL NEERAJ AGRAWAL GF-22, WINDSOR PLAZA R.C.DUTT ROAD, ALKAPURI BARODA-390 005 / VS. 1-3. THE DCIT CIRCLE-2(2) BARODA ./ ./ PAN/GIR NO. : ADEPA 7760 L ( ' / APPELLANT ) .. ( #' / RESPONDENT ) ' $ / APPELLANT BY : SHRI PARIN S.SHAH, AR #' % $ / RESPONDENT BY : SHRI P.L.KUREEL, SR.DR &'( % ) / DATE OF HEARING 14/07/2015 *+, % ) / DATE OF PRONOUNCEMENT 14/08/2015 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THESE THREE APPEALS BY THE ASSESSEE ARE DIRECTED A GAINST THE SEPARATE ORDERS OF THE LD.COMMISSIONER OF INCOME TA X(APPEALS)-V, BARODA [CIT(A) IN SHORT] DATED 30/08/2011 FOR AY 2004-05, DATED 23/08/2011 FOR AY 2005-06 AND DATED 23/08/2011 FOR AY 2006-07. SINCE COMMON GROUND IS INVOLVED, ALL THESE THREE AP PEALS WERE TAKEN UP ITA NOS.2572,2573 & 2754 /AHD/2011 SHRI VISHAL NEERAJ AGRAWAL VS. DCIT AYS 2004-05, 2005-06 & 2006-07 RESPECTIVELY - 2 - TOGETHER FOR HEARING AND ARE BEING DISPOSED OF BY T HIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. FIRST, WE TAKE UP THE ASSESSEES APPEAL IN ITA NO.2572/AHD/2011 FOR AY 2004-05. THE ASSESSEE HAS RAISED THE FOLLOW ING GROUNDS OF APPEAL:- 1. LD.CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMI NG PENALTY LEVIED BY AO U/S.271(1)(C) ON ADDITION MADE ON ACCOUNT OF CAS H CREDIT/DISALLOWANCE OF EXPENDITURE CLAIMED AS REVEN UE IN NATURE THAT IS WHOLLY UNSUSTAINABLE IN LAW AND ON FACTS. BOTH THE LOWER AUTHORITIES FAILED TO APPRECIATE THE FACT THAT THE APPELLANT NE ITHER FURNISHED INACCURATE PARTICULARS NOR CONCEALED ANY INCOME. T HE PENALTY LEVIED BEING WITHOUT ANY MERITS AND JUSTIFICATION DESERVES TO BE QUASHED. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER, ED IT, DELETE, MODIFY OR CHANGE ALL OR ANY OF THE GROUNDS OF APPEAL AT THE T IME OF OR BEFORE THE HEARING OF THE APPEAL. 3. BRIEFLY STATED FACTS ARE THAT THE CASE OF THE AS SESSEE WAS REOPENED AND THE ASSESSMENT U/S.143(3) OF THE INCOME TAX ACT ,1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VIDE ORDER DAT ED 31/12/2008. WHILE FRAMING THE ASSESSMENT, THE ASSESSING OFFICER (AO I N SHORT) MADE ADDITION OF RS.7,000/- BY INVOKING THE PROVISIONS O F SECTION 68 OF THE ACT AND ADDITION OF RS.15,698/- ON ACCOUNT OF DISALLOWA NCE OF EXPENDITURE OF JOB WORK, REPAIRS & MAINTENANCE AND FURTHER MADE AD DITION OF RS.49,834/- OUT OF REPAIRS & MAINTENANCE EXPENSES T REATED AS CAPITAL EXPENDITURE. THE AO ALSO INITIATED PENALTY PROCEEDI NGS U/S.271(1)(C) OF THE ACT. SUBSEQUENTLY, THE AO LEVIED PENALTY OF RS .24,000/- VIDE ORDER ITA NOS.2572,2573 & 2754 /AHD/2011 SHRI VISHAL NEERAJ AGRAWAL VS. DCIT AYS 2004-05, 2005-06 & 2006-07 RESPECTIVELY - 3 - DATED 30/06/2009. FEELING AGGRIEVED BY THE ORDERS , ASSESSEE PREFERRED AN APPEAL BEFORE THE LD.CIT(A), WHO AFTER CONSIDERI NG THE SUBMISSIONS OF THE ASSESSEE PARTLY ALLOWED THE APPEAL OF THE ASSES SEE; THEREBY THE LD.CIT(A) CONFIRMED THE PENALTIES OF RS.7,000/- & R S.49,834/- AND DELETED THE EXPENDITURE OF RS.15,698/- MADE IN RESP ECT OF JOB CHARGES & REPAIRS, ETC. AGGRIEVED BY THE ORDER OF THE LD.CI T(A), THE ASSESSEE IS NOW IN APPEAL BEFORE US. 4. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT T HE AUTHORITIES BELOW WERE NOT JUSTIFIED IN LEVYING THE PENALTY. HE SUBM ITTED THAT ALL THE DETAILS WERE PLACED BEFORE THE AO DURING THE COURSE OF ASSE SSMENT PROCEEDINGS. HE SUBMITTED THAT IT IS NOT THE CASE OF FURNISHING INACCURATE PARTICULARS OF INCOME OR CONCEALMENT OF INCOME. HE SUBMITTED THAT THE LD.CIT(A) HAS CONFIRMED THE PENALTY ON TWO ADDITIONS; I.E. RS.7,0 00/- MADE ON ACCOUNT OF CASH CREDIT AND DISALLOWANCE OF RS.49,834/- TREA TED AS THE CAPITAL EXPENDITURE BY THE AO. HE SUBMITTED THAT THE PENAL TY LEVIED ON CASH CREDIT IS NOT SUSTAINABLE. HE PLACED RELIANCE ON T HE JUDGEMENT OF HONBLE JURISDICTIONAL HIGH COURT RENDERED IN THE CASE OF N ATIONAL TEXTILES VS. CIT REPORTED AT (2001)249 ITR 125 (GUJ.) AND JUDGEM ENT OF HONBLE APEX COURT RENDERED IN THE CASE OF CIT VS. RELIANCE PETROPRODUCTS (P) LTD. REPORTED AT (2010) 322 ITR 158 (SC). ITA NOS.2572,2573 & 2754 /AHD/2011 SHRI VISHAL NEERAJ AGRAWAL VS. DCIT AYS 2004-05, 2005-06 & 2006-07 RESPECTIVELY - 4 - 4.1. THE SR.DR SUPPORTED THE ORDERS OF THE AUTHORIT IES BELOW AND SUBMITTED THAT THERE IS NO ILLEGALITY IN THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE JUDGEMENTS RELIED UPON BY THE LD.COU NSEL FOR THE ASSESSEE. WE FIND THAT THE LD.CIT(A) AFFIRMED THE PENALTY ON BOTH THE ISSUES BY OBSERVING AS UNDER:- 3.2 I HAVE CONSIDERED THE FACTS OF THE CASE AS WELL AS THE OBSERVATION OF THE AO AND THE ARGUMENTS ADVANCED BY THE AR. 3.2(I) SO FAR AS LEVY OF PENALTY IN RESPECT OF ADDI TION OF RS.7,000/- MADE ON ACCOUNT OF UNDISCLOSED CASH CREDIT IS CONCERNED IT IS SEEN FROM PENALTY ORDER THAT THE APPELLANT HAD ONLY FILED A CONFIRMAT ION FROM THE SO-CALLED DEPOSITOR SHRI CHUNIBHAI PATEL. DESPITE THE REPEA TED OPPORTUNITIES THE APPELLANT HAS NOT FURNISHED ANY EVIDENC E REGARDING IDENTITY AND CREDITWORTHINESS OF THE DEPOSITOR AS WELL AS THE GE NUINENESS OF THE TRANSACTION. HE HAS ALSO NOT GIVEN ANY REASONS FOR NOT SUBMITTING THESE EVIDENCES. THE APPELLANT HAS NOT FILED ANY APPEAL A GAINST THE ADDITION AND THEREFORE IT IS CLEAR THAT THE APPELLANT HAS ADMITT ED HIS GUILT. EVEN BEFORE THE UNDERSIGNED THE APPELLANT HAS NOT MADE ANY SUBMISSI ON REGARDING LEVY OF PENALTY ON THIS ISSUE. PROVISIONS OF EXPLANATION 1 TO SECTION 271(1)(C) OF THE I.T.ACT,1961 ARE CLEARLY APPLICABLE TO THE CASE OF THE APPELLANT. IN VIEW OF THESE FACTS IT IS HELD THAT THE AO WAS JUSTIFIED IN LEVYING PENALTY UNDER SECTION 271(1)(C) OF THE I.T.ACT,1961 FOR CONCEALMENT OF IN COME IS AND FURNISHING INACCURATE PARTICULARS OF INCOME IN RESPECT OF THE AMOUNT OF RS.7,000/- TAXED UNDER SECTION 68 OF THE I.T.ACT,1961. 3.2.(II) IN RESPECT OF EXPENDITURE OF RS.15,698 /- TOWARDS JOB CHARGES AND REPAIRS ETC. IT IS SEEN FROM THE DOCUMENTS SUBMITTE D BY THE APPELLANT THAT PAYMENTS IN RESPECT OF THESE BILLS WERE MADE THROUG H CHEQUE FROM CANARA BANK. INCOME IN RESPECT OF CREDIT ENTRIES IN THIS B ANK HAS BEEN OFFERED BY THE APPELLANT IN THE REVISED RETURN AND ACCEPTED BY THE AO. THEREFORE, THERE WAS ITA NOS.2572,2573 & 2754 /AHD/2011 SHRI VISHAL NEERAJ AGRAWAL VS. DCIT AYS 2004-05, 2005-06 & 2006-07 RESPECTIVELY - 5 - NO REASON FOR NOT ALLOWING THE EXPENSES RECORDED IN THE SAME BANK ACCOUNT. THE FACT THAT THE APPELLANT HAS NOT DISPUTED THIS A DDITION CANNOT BE THE BASIS FOR LEVYING THE PENALTY. PENALTY LEVIED BY THE AO O N THIS AMOUNT, UNDER SECTION 271(1)(C) OF THE IT ACT 1961, IS THEREFORE DELETED. 3.2(III) IN RESPECT OF AN AMOUNT OF RS. 49834/- DISALLOWED BY THE AO AS THE CAPITAL EXPENDITURE IT IS SEEN FROM THE B ILLS SUBMITTED BY THE APPELLANT THAT AMOUNT OF RS.8350 WAS SPENT ON PURCH ASE OF ENERGY SAVER KIT WHICH WAS A NEW ITEM. SIMILARLY AMOUNT OF RS.31044 WAS SPENTON PURCHASE OF A CPU, MOTHERBOARD, RA M, HARD DISK, KEYBOARD, MOUSE,CABINET, LAN CARD AND FLOPPY DRIVE. FROM THE ITEMS PURCHASED IT IS CLEAR THAT A NEW ASSEMBLED PC WAS PURCHASED BY THE APPELLANT. AMOUNT OF RS.7,308/- WAS SPENT TOWARDS PURCHASE O F PVC CARPET AND AMOUNT OF RS.3,200/- WAS SPENT AS THE REPAIR AND FITTING CHARGES FOR CARPET. IT IS VERY CLEAR FROM THESE DETAILS THAT EXCEPT FOR A SMALL AND UNSPECIFIED AMOUNT SPENT FOR THE REPAIR THE REST OF THE EXPEN DITURE WAS MADE FOR ACQUIRING NEW CAPITAL ASSETS. THE EXPLANATION OF THE APPELLANT BEFORE THE AO THAT THE COMPUTER PARTS WERE PURCHASED FOR THE P URPOSE OF REPAIR OF EXISTING COMPUTERS IN FUTURE IS NOT BONAFIDE. THE A PPELLANT HAS WRONGLY CLAIMED A CAPITAL EXPENDITURE AS THE REVENUE ONE. I N VIEW OF THESE FACTS, IT IS VERY CLEAR THAT PROVISIONS OF EXPLANATION 1 TO SECT ION 271(L)(C) OF THE IT ACT ARE CLEARLY APPLICABLE TO THE CASE OF THE APPELLANT . SO FAR AS CASE LAWS QUOTED BY THE APPELLANT IN ITS SUBMISSION ARE CONCERNED FACTS IN THOSE CASES ARE FOUND TO BE DIFFERENT. IN THIS CASE CLAIM OF DEDUCTION BY APPELLANT WOULD HAVE GONE UNNOTICED HAD THE AO W OULD NOT HAVE CAREFULLY GONE THROUGH THE BOOKS OF ACCOUNT. MOREOVER, IN THI S CASE THERE ARE NO TWO VIEWS REGARDING DIS-ALLOWABILITY OF DEDUCTION CLAIM ED BY THE APPELLANT. THE DECISION IN THE CASE OF CIT V RELIANCE PETRO PRODUC TS IS IN RESPECT OF DEDUCTION WHERE TWO VIEWS WERE POSSIBLE IN RESPECT OF THE DEDUCTION CLAIMED BY THE ASSESSEE. IN FACT, THE DECISION OF HONOURABL E DELHI HIGH COURT IN THE CASE OF ZOOM COMMUNICATIONS PRIVATE LIMITED REPORTE D IN 191 TAXMAN 179 (DELHI) IS APPLICABLE TO THE FACTS OF THE CASE. IN THIS CASE HONOURABLE HIGH COURT HAS HELD THAT: '19. IT IS TRUE THAT MERE SUBMITTING A CLAIM WHICH IS INCORRECT IN LAW WOULD NOT AMOUNT TO GIVING INACCURATE PARTICULARS O F THE INCOME OF THE ASSESSEE, BUT IT CANNOT BE DISPUTED THAT THE CLAIM MADE BY THE ASSESSEE NEEDS TO BE BONA FIDE. IF THE CLAIM BESIDES BEING I NCORRECT IN LAW IS ITA NOS.2572,2573 & 2754 /AHD/2011 SHRI VISHAL NEERAJ AGRAWAL VS. DCIT AYS 2004-05, 2005-06 & 2006-07 RESPECTIVELY - 6 - MALA FIDE, EXPLANATION 1 TO SECTION 271(1) WOULD CO ME INTO PLAY AND WORK TO THE DISADVANTAGE OF THE ASSESSEE. 20. THE COURT CANNOT OVERLOOK THE FACT THAT ONLY A SMALL PERCENTAGE OF THE INCOME-TAX RETURNS ARE PICKED UP FOR SCRUTINY. IF THE ASSESSEE MAKES A CLAIM WHICH IS NOT ONLY INCORRECT IN LAW BU T IS ALSO WHOLLY WITHOUT ANY BASIS AND THE EXPLANATION FURNISHED BY HIM FOR MAKING SUCH A CLAIM IS NOT FOUND TO BE BONA FIDE, IT WOULD BE DIFFICULT TO SAY THAT HE WOULD STILL NOT BE LIABLE TO PENALTY UNDER SECTION 271(1)(C) OF THE ACT. IF WE TAKE THE VIEW THAT A CLAIM WHICH IS WHOLLY UNTENABLE IN LAW AND HAS ABSOLUTELY NO FOUNDATION ON WHICH IT CO ULD BE MADE, THE ASSESSEE WOULD NOT BE LIABLE TO IMPOSITION OF PENAL TY, EVEN IF HE WAS NOT ACTING BONA FIDE WHILE MAKING A CLAIM OF THIS N ATURE, THAT WOULD GIVE A LICENSE TO UNSCRUPULOUS ASSESSEES TO MAKE WH OLLY UNTENABLE AND UNSUSTAINABLE CLAIMS WITHOUT THERE BEING ANY BASIS FOR MAKING THEM, IN THE HOPE THAT THEIR RETURN WOULD NOT BE PICKED U P FOR SCRUTINY AND THEY WOULD BE ASSESSED ON THE BASIS OF SELF-ASSESSM ENT UNDER SECTION 143(1) OF THE ACT AND EVEN IF THEIR CASE IS SELECTE D FOR SCRUTINY, THEY CAN GET AWAY MERELY BY PAYING THE TAX, WHICH IN ANY CASE, WAS PAYABLE BY THEM. THE CONSEQUENCE WOULD BE THAT THE PERSONS WHO MAKE CLAIMS OF THIS NATURE, ACTUATED BY A MALA FIDE INTENTION TO EVADE TAX OTHERWISE PAYABLE BY THEM WOULD GET AWAY WITHOU T PAYING THE TAX LEGALLY PAYABLE BY THEM'. SIMILARLY HON'BLE AHMADABAD ITAT IN ITS DECISION IN THE CASE OF GUJARAT STATE FINANCIAL CORPORATION HAS HELD AS FOLLOWS: ' IT IS WELL ESTABLISHED THAT SO LONG AS THE ASSESS EE HAS NOT CONCEALED ANY MATERIAL FACT OR THE FACTUAL INFORMATION GIVEN BY HIM HAS NOT BEEN FOUND TO BE INCORRECT, HE WILL NOT BE LIABLE TO IM POSITION OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT, EVEN IF THE CLA IM MADE BY HIM IS NOT SUSTAINABLE IN LAW, PROVIDED THAT HE EITHER SUBST ANTIATES THE EXPLANATION OFFERED BY HIM OR THE EXPLANAT ION, EVEN IF NOT SUBSTANTIATED, IS FOUND TO BE BONA FIDE. IF THE EXP LANATION IS NEITHER SUBSTANTIATED NOR SHOWN TO BE BONA FIDE, EXPLANATIO N 1 TO SECTION 271(1)(C) WOULD COME INTO PLAY AND THE ASSESSEE WIL L BE LIABLE TO FOR THE PRESCRIBED PENALTY. IT IS TRUE THAT MERE SUBMIT TING A CLAIM WHICH IS INCORRECT IN LAW WOULD NOT AMOUNT TO GIVING INACCUR ATE PARTICULARS OF THE INCOME OF THE ASSESSEE, BUT IT CANNOT BE DISPUT ED THAT THE CLAIM MADE BY THE ASSESSEE NEEDS TO BE BONA FIDE. IF THE CLAIM BESIDES BEING ITA NOS.2572,2573 & 2754 /AHD/2011 SHRI VISHAL NEERAJ AGRAWAL VS. DCIT AYS 2004-05, 2005-06 & 2006-07 RESPECTIVELY - 7 - INCORRECT IN LAW IS MALA FIDE, EXPLANATION 1 TO SEC TION 271(1) COMES INTO PLAY AND WORK TO THE DISADVANTAGE OF THE ASSES SEE. IN THE PRESENT CASE, DESPITE THE FACT THAT PROVISION FOR BAD AND D OUBTFUL DEBTS WAS EXPRESSLY MADE NOT DEDUCTIBLE IN TERMS OF THE REL EVANT PROVISIONS OF SECTION 36(1)(VII) OF THE ACT, THE ASSESSEE CLAIMED THE DEDUCTION, EVEN WHEN THE AMOUNT HAD NOT BEEN WRITTEN OFF. WE CANNOT OVERLOOK THE FACT THAT ONLY A SMALL PERCENTAGE OF THE INCOME-TAX RETU RNS ARE PICKED UP FOR SCRUTINY. IF THE ASSESSEE MAKES A CLAIM WHICH I S NOT ONLY INCORRECT IN LAW BUT IS ALSO WHOLLY WITHOUT ANY BASIS AND THE EXPLANATION FURNISHED BY HIM FOR MAKING SUCH A CLAIM IS NOT FOU ND TO BE BONA FIDE, IT WOULD BE DIFFICULT TO SAY THAT HE WOULD STILL NO T BE LIABLE TO PENALTY UNDER SECTION 271(1)(C) OF THE ACT. IF WE TAKE THE VIEW, THAT A CLAIM WHICH IS WHOLLY UNTENABLE IN LAW AND HAS ABSOLUTELY NO FOUNDATION ON WHICH IT COULD BE MADE, THE ASSESSEE WOULD NOT BE L IABLE TO IMPOSITION OF PENALTY, EVEN IF HE WAS NOT ACTING BONA FIDE WHI LE MAKING A CLAIM OF THIS NATURE, THAT WOULD GIVE A LICENSE TO UNSCRUPUL OUS ASSESSEES TO MAKE WHOLLY UNTENABLE AND UNSUSTAINABLE CLAIMS WITH OUT THERE BEING ANY BASIS FOR MAKING THEM, IN THE HOPE THAT THEIR R ETURN WOULD NOT BE PICKED UP FOR SCRUTINY AND THEY WOULD BE ASSESSED ON THE BASIS OF SELF ASSESSMENT UNDER SECTION 143(1) OF THE ACT AND EVEN IF THEIR CASE IS SELECTED FOR SCRUTINY, THEY CAN GET A WAY MERELY BY PAYING THE TAX, WHICH IN ANY CASE, WAS PAYABLE BY THEM. TH E CONSEQUENCE WOULD BE THAT THE PERSONS WHO MAKE CLAIMS OF TH IS NATURE, ACTUATED BY AN INTENTION TO EVADE TAX OTHERWISE PAYABLE BY T HEM WOULD GET AWAY WITHOUT PAYING THE TAX LEGALLY PAYABLE BY THEM , IF THEIR CASES ARE NOT PICKED UP FOR SCRUTINY. THIS WOULD TAKE AWAY TH E DETERRENT EFFECT, WHICH THESE PENALTY PROVISIONS IN THE ACT HAVE, ' W E FIND THAT THE ASSESSEE BEFORE US DID NOT EXPLAIN EITHER TO THE AS SESSING OFFICER/ID. CIT(A) AND EVEN TO US AS TO IN WHAT CIRCUMSTANCES A ND ON ACCOUNT OF WHOSE MISTAKE, THE AMOUNTS CLAIMED AS DEDUCTIONS IN THIS CASE WERE NOT ADDED BACK, WHILE COMPUTING THE INCOME OF THE A SSESSEE COMPANY. WE CANNOT IGNORE THE FACT THAT THE ASSESSEE IS A COMPANY WHICH IS HAVING PROFESSIONAL ASSISTANCE IN COMPUTATION OF ITS INCOME, AND ITS ACCOUNTS ARE COMPULSORILY SUBJEC TED TO AUDIT. IN THE ABSENCE OF ANY DETAILS/EXPLANATION FROM THE ASSESSE E, WE FAIL TO APPRECIATE HOW SUCH DEDUCTIONS COULD HAVE BEEN LEFT OUT WHILE COMPUTING THE INCOME OF THE ASSESSEE COMPANY AND HO W IT COULD ALSO HAVE ESCAPED THE ATTENTION OF THE AUDITORS OF, E SPECIALLY WHEN THE DEDUCTION FOR PROVISION FOR BAD AND DOUBTFUL DEBTS AND PROVISIONS FOR DIMINUTION IN VALUE IF INVESTMENTS WERE CLAIMED IN FLAGRANT VIOLATION OF ITA NOS.2572,2573 & 2754 /AHD/2011 SHRI VISHAL NEERAJ AGRAWAL VS. DCIT AYS 2004-05, 2005-06 & 2006-07 RESPECTIVELY - 8 - PROVISIONS OF LAW. IN THESE CIRCUMSTANCES, ESPECIAL LY WHEN EXPLANATION GIVEN BY THE ASSESSEE DURING THE PENALTY PROCEEDINGS HAS NOT BEEN SUBSTANTIATED NOR FOUND TO BE BONA FIDE AND THERE IS NO MATERIAL BEFORE US TO TAKE A DIFFERENT VIEW IN THE MATTER, WE ARE OF THE OPINION THAT THE ID. CIT(A) WAS JUSTIFIE D IN UPHOLDING THE LEVY OF PENALTY ON ACCOUNT OF FURNISHING OF INACCUR ATE PARTICULARS OF INCOME IN RELATION TO PROVISION FOR BAD AND DOUBTFU L DEBTS AND PROVISION FOR DIMINUTION IN THE VALUE OF INVESTMENT S. SINCE THE APPELLANT HAS CLAIMED DEDUCTION OF RS.49, 834/- AS REVENUE EXPENDITURE, WHICH IN FACT IS A CAPITAL EXPENDITURE AND THERE ARE NO TWO OPINIONS ABOUT DISALLOWABILITY OF THE DEDUCTION CLA IMED AND HE HAS ALSO FAILED TO OFFER A BONA FIDE EXPLANATION FOR THE DEFAULT OF CLAIMING WRONG DEDUCTION, PROVISIONS OF EXPLANATION 1 TO SECTION 271(1)(C) OF THE I.T.ACT,1961 ARE CLEARLY APPLICABLE TO THE CASE OF THE APPELLANT. IN VIEW OF THESE FACTS IT IS HELD THAT THE AO WAS JUSTIFIED IN LEVYING PENALTY UNDER SECTION 2 71(1)(C) OF THE I.T.ACT,1961 FOR CONCEALMENT OF INCOME AND FURNISHING INACCURATE PARTICULARS OF INCOME IN RESPECT OF THIS DISALLOWANCE. 6. IN RESPECT OF THE ADDITION MADE ON ACCOUNT OF CA SH CREDIT U/S.68 OF THE ACT, THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ADDITION IS ON THE BASIS OF DEEMING FICTION. HE RELIED ON THE JUD GEMENT OF HONBLE JURISDICTIONAL HIGH COURT RENDERED IN THE CASE OF N ATIONAL TEXTILES VS. CIT(SUPRA). THERE IS NO DISPUTE WITH REGARD TO TH E FACT THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE HAD F ILED A CONFIRMATION FROM SHRI CHUNIBHAI PATEL. THE AO HAS NOT SUMMONED THE DEPOSITOR WHO HAD GIVEN CONFIRMATION. UNDER THESE FACTS, WE ARE OF THE VIEW THAT THE LD.CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE P ENALTY. THEREFORE, THE AO IS DIRECTED TO DELETE THE PENALTY. 6.1. ANOTHER ISSUE IS WITH REGARD TO CONFIRMATION O F PENALTY ON THE EXPENDITURE TREATED BY THE REVENUE AUTHORITY AS CAP ITAL EXPENSES, ITA NOS.2572,2573 & 2754 /AHD/2011 SHRI VISHAL NEERAJ AGRAWAL VS. DCIT AYS 2004-05, 2005-06 & 2006-07 RESPECTIVELY - 9 - HOWEVER CLAIMED BY THE ASSESSEE AS REVENUE EXPENDIT URE. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUE IS BEING DEBATABLE, HOWEVER THE LD.CIT(A) HAS CONFIRMED THE PENALTY. HE SUBMITTED THAT IN VIEW OF THE JUDGEMENT OF THE HONBLE APEX COURT IN THE CASE OF CIT VS. RELIANCE PETROPRODUCTS (P) LTD.(SUPRA), THE LD.CIT(A) OUGHT TO HAVE DELETED THE PENALTY. 6.2. ON THE CONTRARY, LD.SR.DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE JUDGEMENT RELIED UPON BY THE LD.COUN SEL FOR THE ASSESSEE. THERE IS NO DISPUTE WITH REGARD TO THE ADDITION WAS MADE ON ACCOUNT OF THE EXPENDITURE CLAIMED AS REVENUE EXPENDITURE BY T HE ASSESSEE WHICH WAS TREATED AS CAPITAL EXPENDITURE BY THE AO. THE ASSESSEE HAS NOT CONCEALED ANY PARTICULARS OF INCOME OR FURNISHED IN ACCURATE PARTICULARS OF INCOME. THE ONLY DIFFERENCE IN TREATMENT OF THE PA RTICULAR OF THE EXPENDITURE. THEREFORE, IN OUR CONSIDERED VIEW, TH E AUTHORITIES BELOW WERE NOT JUSTIFIED IN CONFIRMING THE PENALTY. HENC E, IN VIEW OF THE HONBLE APEX COURT RENDERED IN THE CASE OF CIT VS. RELIANCE PETROPRODUCTS (P) LTD., WE DIRECT THE AO TO DELETE THE PENALTY. AS A RESULT, ASSESSEES APPEAL FOR AY 2004-05 IS ALLOWED . ITA NOS.2572,2573 & 2754 /AHD/2011 SHRI VISHAL NEERAJ AGRAWAL VS. DCIT AYS 2004-05, 2005-06 & 2006-07 RESPECTIVELY - 10 - 8. NOW, WE TAKE UP THE ASSESSEES APPEAL IN ITA NO. 2573/AHD/2011 FOR AY 2005-06. 8.1. THE ONLY EFFECTIVE GROUND IS AGAINST CONFIRMAT ION OF PENALTY OF RS.24,600/-. THE LD.COUNSEL FOR THE ASSESSEE SUBMI TTED THAT IN THE QUANTUM PROCEEDINGS, THE AO MADE DISALLOWANCE IN RE SPECT OF THE DIFFERENCE BETWEEN IN THE PROFIT & LOSS A/C. FILED ALONG WITH THE ORIGINAL RETURN AND IN THE REVISED RETURN. THE EXPLANATION GIVEN BY THE ASSESSEE WAS NOT FOUND ACCEPTABLE BY THE AO AND HE MADE ADDI TION. HE SUBMITTED THAT UNDER THE FACTS OF THE PRESENT CASE, THE PENAL TY OUGHT NOT TO HAVE BEEN LEVIED AS THE ASSESSEE HAD GIVEN PLAUSIBLE EXP LANATION. THE LD.COUNSEL FOR THE ASSESSEE HAS PLACED RELIANCE ON THE JUDGEMENT(S) OF HONBLE JURISDICTIONAL HIGH COURT RENDERED IN THE C ASE OF CIT VS. NAVNITLAL POCHALAL REPORTED AT (1995) 213 ITR 69 (G UJ.), HONBLE HIGH COURT OF PUNJAB & HARYANA RENDERED IN THE CASE OF C IT VS. AJAB SINGH & CO. REPORTED AT (2002) 253 ITR 630 (P&H) AND HONBL E APEX COURT RENDERED IN THE CASE OF CIT VS. RELIANCE PETROPRODU CTS (P) LTD. REPORTED AT (2010) 322 ITR 158(SC). 8.2. ON THE CONTRARY, LD.SR.DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND VEHEMENTLY ARGUED THAT THE ASSESSEE FAILE D TO GIVE A PLAUSIBLE EXPLANATION IN RESPECT OF THE DIFFERENCE BETWEEN IN THE PROFIT & LOSS ACCOUNT FILED ALONG WITH THE ORIGINAL RETURN AND IN THE REVISED RETURN. ITA NOS.2572,2573 & 2754 /AHD/2011 SHRI VISHAL NEERAJ AGRAWAL VS. DCIT AYS 2004-05, 2005-06 & 2006-07 RESPECTIVELY - 11 - 9. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE JUDGEMENTS RELIED UPON BY THE LD.COU NSEL FOR THE ASSESSEE. WE FIND THAT THE AO HAS, IN THE ASSESSMENT ORDER DA TED 31/12/2008 IN PARAS-3 & 3.1, OBSERVED AS UNDER:- 3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS NOTICED THAT THERE IS DIFFERENCE BETWEEN IN THE PROFIT AND LOSS ACCOUNT FILED ALONG WITH THE ORIGINAL RETURN AND IN THE REVISED RETURN. THIS WAS DULY POINTED OUT TO THE ASSESSEE DURING THE COURSE OF AS SESSMENT PROCEEDINGS AND ASKED TO EXPLAIN THE SAME. IN RESPONSE TO THIS , IT WAS SUBMITTED BY THE VIDE HIS SUBMISSION DATED 19.12.2008, THE RELEV ANT PORTION OF WHICH IS AS UNDER:- ANNEXURE-A OTHER PURCHASE BILL DATE SUPPLIER BILL NO. AMOUNT REMARKS 04.01.05 ALEKHAN 217 9000 BILL OF RS.10900 IS WRONGLY ENTERED AS RS.1900 IN ORIGINAL RETURN NOW RECTIFIED. COPY OF BILL IS SUBMITTED. ANNEXURE-B-PAPER PURCHASE BILLS 20.5.04 HARESHKUMAR B.SHAH 197 12650 COPY OF BILLS ARE ENCLOSED. THE PAYMENT FOR PURCHASE WAS MADE BY CASH. 20.5.04 SOHIL PAPER MART 117 9850 19.02.05 HARESHKUMAR B.SHAH 3125 13500 02.02.05 LAXMI ENTERPRISE - 711 BILL MISSING 36711 ITA NOS.2572,2573 & 2754 /AHD/2011 SHRI VISHAL NEERAJ AGRAWAL VS. DCIT AYS 2004-05, 2005-06 & 2006-07 RESPECTIVELY - 12 - ANNEXURE-D ADMINISTRATIVE EXPENSES ACCOUNTING C HARGES 01.05.04 6200 HE PAYMENT WAS MADE IN CASH FOR ACCOUNTING WORK, VOUCHER IS MISSING. 07.11.04 3500 THE PAYMENT WAS MADE CASH FOR ACCOUNTING WORK, VOUCHER IS MISSING. PRINTING & STATIONERY 17.09.04 V.G.PTEL 1625 2750 COPY OF BILLS IS ENCLOSED. PAID BY CASH FOR OFFICE STATIONARY. REPAIRS & MAINTENANCE (ELECTRICAL) 15.04.04 GOPALBHAI - 4500 COPY OF VOUCHERS IS ENCLOSED. CASH PAID FOR ELECTRICAL REPAIR. 26.06.04 GOPALBHAI - 5500C 15.10.04 GOPALBHAI - 4500 21.03.05 GOPALBHAI - 5500 3.1. THE SUBMISSION OF THE ASSESSEE HAS DULY BEEN T AKEN INTO CONSIDERATION, BUT THE SAME IS NOT FOUND TO BE TENA BLE. THE ASSESSEE HAS FAILED TO FURNISH ANY CONVINCING REPLY EXCEPT STATI NG THE REASONS MENTIONED ABOVE. THERE IS NO MERIT IN THE CASE OF THE SUBMISSION MADE BY THE ASSESSEE AD IT IS ONLY AN AFTER THOUGHT TO C LAIM THESE EXPENSES AT THE TIME OF FILING THE REVISED RETURN. ACCORDINGLY , THE SUM OF RS.80,361/- IS ADDED TO THE TOTAL INCOME OF THE ASS ESSEE. PENALTY PROCEEDINGS U/S.271(1)(C) OF THE I.T.ACT HAS ALSO B EEN INITIATED SEPARATELY ON THIS POINT. 9.1. ON THIS ADDITION, PENALTY WAS LEVIED VIDE ORDE R DATED 30/06/2009. THIS PENALTY WAS CONFIRMED BY THE LD.CIT(A) BY OBSE RVING AS UNDER:- ITA NOS.2572,2573 & 2754 /AHD/2011 SHRI VISHAL NEERAJ AGRAWAL VS. DCIT AYS 2004-05, 2005-06 & 2006-07 RESPECTIVELY - 13 - 3.2 I HAVE CONSIDERED THE REASONS RECORDED BY TH E AO AND SUBMISSION OF THE AR. WHILE REVISING RETURN OF INCO ME IN RESPECT OF THE NOTICE UNDER SECTION 147 AND THE APPELLANT HAS CLAI MED THAT THE RECEIPTS FROM TWO BANK ACCOUNTS WERE NOT DECLARED BECAUSE TH E ACCOUNTANT FORGOT TO CONSIDER THE SAME AND IT WAS THE GENUINE MISTAKE ON HIS PART. THE APPELLANT HAS NOT CLARIFIED AS TO HOW CERTAIN B ILLS OF EXPENSES WERE ALSO NOT TAKEN INTO ACCOUNT WHILE FILING THE ORIGIN AL RETURN. IT IS ALSO NOT EXPLAINED AS TO HOW THESE BILLS CROPPED UP WHEN ADD ITIONAL INCOME WAS DETECTED. CLEARLY, THE INTENTIONS OF THE APPELLANT WERE NOT HONEST. IN RESPECT OF BILL OF ONE SHRI ALEKHAN DATED 4TH OF JANUARY 05 THE APPELLANT HAS CLAIMED ADDITIONAL DEDUCTION OF RS.9, 000/-. HE HAS SUBMITTED THAT BILL OF RS.10,900/- WAS WRONGLY ENTERED AS RS.1,900/- IN THE ORIGINAL RETURN AND THE MISTAKE I S NOW RECTIFIED. HOWEVER THE APPELLANT HAS NOT PRODUCED ANY EVIDENCE TO SHOW THAT THE PAYMENT WAS ALREADY REFLECTED IN THE BOOKS OF ACCOUNT PREPARED IN RESPECT OF THE ORIGINAL RETURN. THUS THE APPELLANT HAS NOT BEEN ABLE TO PROVE THE BONAFIDE OF ITS CLAIM. ALL OTHER EXPENSES AMOUNTING TO RS.71,361/- ARE CLAIMED TO HAVE BEEN INCURRED IN CASH. THOUGH BILLS IN RESPECT OF THESE EXPENSES HAVE BEEN FILED BEFORE TH E AO NO EXPLANATION HAS BEEN PROVIDED TO EXPLAIN THE CIRCUMSTANCES IN W HICH SUCH EXPENSES REMAINED TO BE ACCOUNTED FOR IN THE ORIGINAL RETURN AND HOW THESE BILLS WERE PRESERVED FOR SO MANY YEARS. IT IS ALSO NOT E XPLAINED AS TO HOW THESE BILLS CROPPED UP WHEN ADDITIONAL INCOME WAS D ETECTED. IT IS CLEAR FROM THE ABOVE DISCUSSION THAT THE APPELLANT HAS F AILED TO PROVE THE BONAFIDES OF ITS CLAIM OF EXPENDITURE AMOUNTING TO RS.80,361/- AND THEREFORE THE AO HAS CORRECTLY INVOKED THE PROVISIO NS OF EXPLANATION 1 TO SECTION 271(1)(C) OF THE IT ACT AND FOUND HIM GUILTY OF CONCEALMENT OF INCOME AND FURNISHING IN ACCURATE PA RTICULARS OF INCOME. PENALTY OF RS.24,600/- LEVIED BY THE AO UND ER SECTION 271(1)(C) OF THE IT ACT IS HEREBY CONFIRMED. ITA NOS.2572,2573 & 2754 /AHD/2011 SHRI VISHAL NEERAJ AGRAWAL VS. DCIT AYS 2004-05, 2005-06 & 2006-07 RESPECTIVELY - 14 - 9.2. WE FIND THAT THE LD.CIT(A) HAS OBSERVED THAT B ILLS CROPPED UP WHEN ADDITIONAL INCOME WAS DETECTED. IT IS NOT THE CASE OF THE REVENUE THAT BILLS FURNISHED BEFORE THE AO WERE NOT GENUINE AS THERE IS NO FINDING BY THE AO THAT THESE BILLS/VOUCHERS WERE NOT GENUIN E AND NO INQUIRY HAS BEEN MADE AT THE END OF THE AO. THEREFORE, WE ARE OF THE VIEW THAT THIS IS NOT THE CASE WERE PENALTY DESERVES TO BE SUSTAIN ED. WE THEREFORE ACCORDINGLY DIRECT THE AO TO DELETE THE PENALTY. A S A RESULT, GROUND RAISED BY THE ASSESSEE IS ALLOWED AND APPEAL OF THE ASSESSEE FOR AY 2005- 06 IS ALLOWED. 10. NOW, WE TAKE UP THE ASSESSEES APPEAL IN ITA NO .2574/AHD/2011 FOR AY 2006-07. THE ASSESSEE HAS RAISED THE FOLLO WING GROUND(S) OF APPEAL: 1. LD.CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMI NG PENALTY LEVIED BY AO U/S.271(1)(C) OF THE ACT ON ADDITION OF UNEXPLAI NED CREDITS/DISALLOWANCE OF CERTAIN EXPENDITURE AND ON DIFFERENCE IN THE AMOUNT OF TAXABLE INCOME AS PER ORIGINAL RETURN AND REVISED RETURN FILED BY THE APPELLANT THAT IS WHOLLY UNSUSTAINABLE IN LA W AND ON FACTS. BOTH THE LOWER AUTHORITIES FAILED TO APPRECIATE THE FACT THAT THE APPELLANT NEITHER FURNISHED INACCURATE PARTICULARS NOR CONCEA LED ANY INCOME. THE PENALTY LEVIED BEING WITHOUT ANY MERITS AND JUS TIFICATION DESERVES TO BE QUASHED. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER, ED IT, DELETE, MODIFY OR CHANGE ALL OR ANY OF THE GROUNDS OF APPEAL AT THE T IME OF OR BEFORE THE HEARING OF THE APPEAL. 11. IN THIS YEAR, FACTS ARE IDENTICAL TO THE FACTS AS WERE RAISED IN THE AYS 2004-05 AND 2005-06 IN ASSESSEES OWN CASE (SU PRA) IN RESPECT OF ITA NOS.2572,2573 & 2754 /AHD/2011 SHRI VISHAL NEERAJ AGRAWAL VS. DCIT AYS 2004-05, 2005-06 & 2006-07 RESPECTIVELY - 15 - THE PENALTY LEVIED ON THE CASH CREDIT AND DISALLOWA NCE OF EXPENDITURE. SINCE THERE IS NO CHANGE INTO THE FACTS AND CIRCUMS TANCES ON THESE ISSUES, THEREFORE TAKING A CONSISTENT VIEW, WE HEREBY DIREC T THE AO TO DELETE THE PENALTY ON CASH CREDIT MADE U/S.68 AND DISALLOWANCE OF EXPENDITURE. THUS, THESE ISSUES ARE ALLOWED. 11.1. NOW THE ONLY ISSUE LEFT WITH US FOR ADJUDICAT ION IS WITH REGARD TO CONFIRMATION OF PENALTY ON THE DISALLOWANCE MADE U/ S.40(A)(IA) OF THE ACT. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THA T IN THE QUANTUM PROCEEDINGS, DISALLOWANCE WAS MADE BY INVOKING THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT AMOUNTING TO RS.3,43,2 93/-. THE AO PROCEEDED TO LEVY PENALTY ON THIS AMOUNT. THE LD.C IT(A) WITHOUT CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, CONFIR MED THE PENALTY. HE SUBMITTED THAT THE AO HAD MADE ADDITION FOR NON-DED UCTION OF TAX ON THE PAYMENT MADE TO KWIK CAD SONI OF RS.2,15,000/- AND ASIM PHOTO CARMINALS OF RS.1,28,293/- (TOTALLING TO RS.3,43,29 3/-). THE LD.COUNSEL FOR THE ASSESSEE SUBMITTD THAT THE ISSUE IS SQUAREL Y COVERED BY THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT RENDE RED IN THE CASE OF CIT-IV VS. L.G.CHAUDHARY REPORTED AT (2013) 33 TAXM ANN.COM 156 (GUJ.). 11.2. ON THE CONTRARY, SR.DR SUPPORTED THE ORDERS O F THE AUTHORITIES BELOW AND SUBMITTED THAT THERE IS NO ILLEGALITY IN THE ORDERS OF THE ITA NOS.2572,2573 & 2754 /AHD/2011 SHRI VISHAL NEERAJ AGRAWAL VS. DCIT AYS 2004-05, 2005-06 & 2006-07 RESPECTIVELY - 16 - AUTHORITIES BELOW. HE SUBMITTED THAT ON DETECTION OF THE FAULT, THE ASSESSEE REVISED THE RETURN. 12. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED TH E MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE JUDGEMENT RELIED UPON THE LD.COUNSEL FOR THE ASSESSEE. THERE IS NO DISPUTE WITH REGARD TO THE FACT THAT TH E ADDITION WAS MADE ON ACCOUNT OF NON-DEDUCTION OF TAX. THE HONBLE HIGH COURT OF GUJARAT IN THE CASE OF CIT-IV VS. L.G.CHAUDHARY (SUPRA), HAS H ELD AS UNDER:- 3. WE HEARD LEARNED COUNSEL, MS. PAURAMI SHETH FOR THE APPELLANT AND SENIOR COUNSEL, MR. SOPARKAR FOR THE RESPONDENT. LE ARNED COUNSEL, MS. SHETH HAS ARGUED THAT THE TRIBUNAL HAD FAILED TO SE E THAT THE ASSESSEE HAD FAILED TO DEDUCT THE IDS AS PER LAW WHICH WAS A LSO DEPOSITED LATE AND ON SUCH DISALLOWANCE AS HAS BEEN CONFIRMED BY B OTH CIT (APPEALS) AND ITAT AND THEREFORE, THE IMPOSITION OF PENALTY B Y ASSESSING OFFICER WAS JUST AND PROPER. PER CONTRA, LEARNED SENIOR COU NSEL SUBMITTED THAT NONE OF THE ELEMENTS OF SECTION 271(1)(C) GET ATTRA CTED IN CASE OF THE RESPONDENT ASSESSEE. ON DUE CONSIDERATION OF THE SU BMISSIONS OF BOTH SIDES AND ON EXAMINING THE ORDERS OF ALL THE AUTHOR ITIES, WE FIND NO REASON TO INTERFERE IN THIS APPEAL IN AS MUCH AS BO TH THE AUTHORITIES NAMELY C1T(A) AND IT AT HAVE RIGHTLY DELETED THE PE NALTY OBSERVING THAT THE DISALLOWANCE WAS DUE TO NON-PAYMENT OF TDS , WHICH WAS AT THE MOST A TECHNICAL DEFAULT. THERE BEING NOTHING TO IN DICATE ANY CONCEALMENT OF THE INCOME OR FURNISHING OF INACCURA TE PARTICULARS OF INCOME BY THE ASSESSEE, THE ASSESSING OFFICER WAS R IGHTLY NOT JUSTIFIED IN LEVYING THE PENALTY. 4. THIS BEING A CORRECT APPROACH ADOPTED BY BOTH TH E AUTHORITIES CONCURRENTLY, THIS TAX APPEAL POSES NO QUESTION OF LAW AND THE SAME REQUIRES NO INTERFERENCE AND IS CONSEQUENTLY TO BE DISMISSED. ITA NOS.2572,2573 & 2754 /AHD/2011 SHRI VISHAL NEERAJ AGRAWAL VS. DCIT AYS 2004-05, 2005-06 & 2006-07 RESPECTIVELY - 17 - 13. THEREFORE, RESPECTFULLY FOLLOWING THE JUDGEMENT OF HONBLE JURISDICTIONAL HIGH COURT, WE HEREBY DIRECT THE AO TO DELETE THE PENALTY ON THIS AMOUNT. THUS, THIS GROUND IS ALLOWED AND T HE APPEAL OF THE ASSESSEE FOR AY 2006-07 IS ALLOWED. 14. IN THE COMBINED RESULT, ALL THE THREE APPEALS O F THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE COURT ON FRIDAY, THE 14 TH DAY OF AUGUST, 2015 AT AHMEDABAD. SD/- SD/- ( ) ( ) ( PRAMOD KUMAR ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 14/ 08 /2015 0)..& , '.&../ T.C. NAIR, SR. PS !'#$%$&' / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #' / THE RESPONDENT. 3. 123 4 / CONCERNED CIT 4. 4 ( ) / THE CIT(A)-V, BARODA 5. 5'6 &23 , ) 23 , , 1 / DR, ITAT, AHMEDABAD 6. 689 :( / GUARD FILE. / BY ORDER, #5 //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD