The ITO, Ward-4(2), Baroda V. M/s. Patel Beverages Pvt. Limited, Baroda

ITA 2598/AHD/2015

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1346 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-12-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 14-12-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 09-09-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DILEEP KUMAR SRDR
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER ./ ITA NO. 2598/AHD/2015 / ASSESSMENT YEAR: 2008-09 INCOME TAX OFFICER, WARD-2(1)(2), BARODA .. APPELLANT VS M/S. PATEL BEVERAGES PVT LTD, 505/2-3-4, GIDC ESTATE, MAKARPURA, BARODA .. RESPONDENT PAN : AADCP 6641 C REVENUE BY : SHRI DILEEP KUMAR, SR-DR ASSESSEE(S) BY : NONE / DATE OF HEARING 14 /12/2015 /DATE OF PRONOUNCEMENT 29 / 12 /201 5 / O R D E R THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE OR DER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-2, VAD ODARA DATED 15.06.2015 FOR ASSESSMENT YEAR 2008-09, ON THE FOLLO WING GROUNDS:- 1. ON THE FACTS OF THE CASE AND ON THE CIRCUMSTANCES A ND IN LAW, THE CIT(A)-2, VADODARA ERRED IN HOLDING THAT 'SIN CE THE LEVY OF PENALTY IN THE PRESENT CASE IS BASED PURELY U PON ESTIMATION OF PROFIT OF THE APPELLANT, THE PENALTY LEVIE D U/S. 271(1)(C) BY THE AO IS DIRECTED TO BE DELETED' WITHOUT APPRECIATING THAT THE ASSESSEE BY NOT SUBSTANTIATING ITS CLAIM WITH COGENT EVIDENCE AND DETAILS, DURING THE COURSE O F ASSESSMENT PROCEEDINGS AS WELL AS IN PENALTY PROCEED INGS, FAILED TO DISCLOSE TRULY ALL MATERIAL FACTS FOR THE COMP UTATION OF ITS INCOME, THEREBY FURNISHED INACCURATE PARTICULARS O F INCOME, LIABLE FOR PENALTY U/S. 271(1)(C) OF THE ACT. 2. ON THE FACTS OF THE CASE AND ON THE CIRCUMSTANCES A ND IN LAW, THE CIT(A)-2, VADODARA ERRED IN DIRECTING TO DEL ETE PENALTY U/S. 271(1)(C), RELYING UPON THE DECISION OF HON'BLE GUJARAT HIGH COURT AND HON'BLE I.T.A.T. IN THE CASE OF WHITELI NE CHEMICALS AND RELYING UPON THE JUDICIAL PRONOUNCEME NT IN THE CASE OF SUBASH TRADING COMPANY, NAVJEEVAN OIL MILLS THIRD MEMBER DECISION OF I.T.A.T., AHMEDABAD IN THE CASE O F VIKRAM (SMC) ITA NO. 2598 /AHD/2015 PATEL BEVERAGES PVT LTD VS. ITO AY 2008-09 2 PLASTICS WITHOUT APPRECIATING THAT THE FACT OF THE PRESENT CASE IS DISTINGUISHABLE FROM THE JUDICIAL DECISIONS RELIE D UPON BY THE LD. CIT(A)-2, VADODARA IN AS MUCH THERE WAS NEITHE R ANY ISSUE OF APPLICATION OF FLAT RATE OF GP TO ARRIVE AT THE G.P. BY REJECTING THE BOOKS OF ACCOUNT, NOR DETERMINATION OF G .P. AS A RESULT OF SURVEY ACTION IN THE INSTANT CASE FOR A.Y. 20 08-09. 3. ON THE FACTS OF THE CASE AND ON THE CIRCUMSTANCES A ND IN LAW, THE CIT(A-2, VADODARA ERRED IN DIRECTING TO DEL ETE PENALTY U/S. 271(1)(C), WITHOUT APPRECIATING THAT THE A.O. CORRE CTLY LEVIED PENALTY U/S. 271(L)(C) OF THE ACT, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE OF THE CASE, WHICH FINDS SUPP ORT FROM THE DECISION OF HON'BLE HIGH COURT OF ALLAHABAD IN TH E CASE OF COMMISSIONER OF INCOME TAX V. SWARUP COLD STORAGE & GENERAL MILLS, REPORTED IN [1982](10 TAXMAN 215(ALL) HON'BLE HIGH COURT OF MADHYA PRADESH IN THE CASE OF COMMISSIO NER OF INCOME TAX V. SMT CHANDRAKANT REPORTED IN [1994] 205 I TR 607. 2. BEFORE ME, AT THE OUTSET, LD. AUTHORIZED REPRESENTATIV E SUBMITTED THAT THE PRESENT APPEAL OF THE REVENUE NEEDS TO B E DISMISSED ON ACCOUNT OF LOW TAX EFFECT IN VIEW OF THE CBDT CIRCULAR NO.21 OF 2015 DATED 10.12.2015. THE LD. DEPARTMENTAL REPRESENTATIVE FAIRLY ADMITTED THAT THE TAX EFFECT IS LESS TH AN THE LIMIT PRESCRIBED BY THE AFORESAID CBDT CIRCULAR. 3. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. ON PERUSING THE GROUNDS OF APPEAL RAISE D BY THE REVENUE, I FIND THAT REVENUE IS AGGRIEVED BY THE DELE TION OF PENALTY OF RS.7,42,200/- LEVIED BY THE ASSESSING OFFICER U/S 271(1)(C), THE TAX EFFECT OF WHICH IS BELOW RS.10 LACS. AS PER THE A NNOUNCEMENT OF CENTRAL BOARD OF DIRECT TAXES (CBDT) DATED 10.12.2015 (CIRCULAR NO.21 OF 2015), NO DEPARTMENT APPEALS ARE TO BE FILED AGAINST RELIEF GIVEN BY LD. CIT(A) BEFORE THE INCOME TAX APPELLATE T RIBUNAL UNLESS THE TAX EFFECT, EXCLUDING INTEREST EXCEEDS RS.10 LACS A ND IT FURTHER STATES THAT THE INSTRUCTIONS WILL APPLY RETROSPECTIVELY TO TH E PENDING APPEALS. IN THE PRESENT CASE, SINCE IT IS AN UNDISPU TED FACT THAT THE (SMC) ITA NO. 2598 /AHD/2015 PATEL BEVERAGES PVT LTD VS. ITO AY 2008-09 3 TAX EFFECT IS LESS THAN RS.10 LACS, I AM OF THE VIEW TH AT THE MONETARY LIMIT PRESCRIBED BY THE INSTRUCTIONS OF THE AFORESAID CB DT CIRCULAR WOULD BE APPLICABLE TO THE PRESENT APPEAL OF THE DEPARTM ENT AND THEREFORE THE PRESENT APPEAL IS NOT MAINTAINABLE ON ACCO UNT OF LOW TAX EFFECT. IN SUCH CIRCUMSTANCES, I DISMISS THE APPE AL OF REVENUE WITHOUT EXPRESSING ANY OPINION ON MERITS OF THE CASE. 4. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DI SMISSED IN LIMINE . ORDER PRONOUNCED IN THE COURT ON 29TH DECEMBER, 201 5 AT AHMEDABAD. SD/- ( SHAILENDRA KUMAR YADAV ) JUDICIAL MEMBER AHMEDABAD; DATED 29/12/2015 BIJU T., PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! ' ' # / CONCERNED CIT 4. ' ' # ( ) / THE CIT(A) 5. &'( ! , ' ! , / DR, ITAT, AHMEDABAD 6. (- . / GUARD FILE. / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) !', / ITAT, AHMEDABAD