Shreeji Enterprises, Ahmedabad V. The ACIT.,(OSD)Circle-10, Ahmedabad

ITA 2663/AHD/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0889 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 9 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 15-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH BEFORE: S H RI PRAMOD KUMAR , ACCOUNTANT MEMBER AND SHR I S. S. GODARA , JUDICIAL MEMBER SHREEJI ENTERPRISES, A - 702, NIRMAN COMPLEX, OPP. HAVMOR RESTAURANT, NAVRANGPURA, AHMEDABAD - 380009 PAN: ABBFS8099M (APPELLANT) VS THE ACIT(OSD), CIRCLE - 10, AHMEDABAD (RESPONDENT) REVENUE BY : S H RI JAME S KURIAN , SR. D . R. ASSESSEE BY: S H RI PRITESH SHAH , A.R. DATE OF HEARING : 12 - 08 - 2 016 DATE OF PRONOUNCEMENT : 17 - 08 - 2 016 / ORDER P ER : S. S. GODARA , JUD ICIAL MEMBER : - THESE TWO ASSESSEE S APPEAL S FOR A.Y. 2008 - 09 & 2009 - 10 , AR ISE FROM ORDER OF THE CIT(A) - XVI, AHMEDABAD DATED 05 - 08 - 2013 IN APPEAL NO S . CIT(A) - XVI/ACIT / CIR(OSD).10/023/12 - 13 & CIT(A) - XVI/ACIT/CIR(OSD).10/017/12 - 13 , AFFIRMING PENALTIES OF RS. 4,67,000/ - AND RS. 1,63,150/ - IMPOSED BY ASSESSING OFFICER, IN I T A NO S . 2663 & 2664 / A HD/20 13 A SSESSMENT YEAR 200 8 - 09 & 2009 - 10 I.T.A NO S . 2663 & 2664 /AHD/20 13 A.Y. 2008 - 09 & 2009 - 10 PAGE NO SHREEJI ENTERPRISES VS. ACIT 2 PROCEEDINGS UNDER SECTION 271(1 ) (C) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2. A COMBINED PERUSAL OF THE INSTANT CASE FILE S REVEALS THAT THESE TWO ASSESSEE S APPEALS SUFFERS FROM 2 8 DAYS DELAY IN FILING. THE ASSESSEE HAS FILED ITS SEPARATE CONDONATION S PETITION INTER ALIA SUBMITTING THEREIN THAT THERE HAS BEEN A CHANGE OF COUNSEL AT ITS BEHEST IN INSTITUTING THESE TWO CASES. THE REVENUE FAILS TO CONTROVERT THESE SOLEMN AFFIRMATIONS . WE ACCORDINGLY ACCEPT ASSESSE S CONDONATION PETITION TO ADMIT THESE TWO APPEAL S FOR ADJUDICATION ON MERITS. 3. WE COME TO ASSESSEE S PLEADINGS FIRST. IT CHALLENGES CIT(A) S ORDER IN BOTH THESE TWO CASES AFFIRMING SECTION 271(1)(C) PENALTIES AMOUNTING TO RS 4,67,000/ - AND RS. 1,63,150/ - . THERE IS NO DISPUTE THAT THE SAME PERTAINS TO DISALLOWANCES OF RS. 4,80,000/ - AS PAID TO M/S. DHEERAJ DIAMOND TOOLS PVT. LTD AS A PARTNER REPRESENTED BY ITS DIRECTOR , SHRI RAJESH AGRAWAL AS A WORKING PARTNER. LATTER ASSESSMENT YEAR 2009 - 10 ALSO INVOLVES THE SAME AMOUNT. THE ASSESSING OFFICER FRAMED REGULAR ASSESSMENT ON 12 - 07 - 2010 DISALLOWING THE SAME BY INVOKING SECTION 40(B) EXPLANATION 4 HOLDING THEREIN THAT ASSESSEE S PAYEES COULD NOT BE TREATED AS A PERSON WITHI N THE MEANING O F AN INDIVIDUAL. IT HAS COME O N RECORD THAT THIS QUANTUM DISALLOWANCE HAS ALREADY ATTAINED FINALITY . NEEDLES TO SAY, THE ASSESSING OFFICER TREATED ASSESSEE S CORRESPONDING CLAIMS AS A CASE OF FURNISHING OF INACCURATE PARTICULARS OF INCOME FOR LEVYING OF I.T.A NO S . 2663 & 2664 /AHD/20 13 A.Y. 2008 - 09 & 2009 - 10 PAGE NO SHREEJI ENTERPRISES VS. ACIT 3 IMPUGNED PENALTY U/S. 271(1)(C) OF THE ACT. THE CIT(A) UPHOLDS THE SAME . 4. WE HAVE HEARD BOTH THE PARTIES . IT EMANATES FROM THE CASE FI L E THAT A CO - ORDI NA TE BENCH IN ASSESSEE S OWN CASE FOR ASSESSMENT YEAR 2007 - 08 HAS ALREADY DELETED I DENTICAL PENALTIES ARISING FROM DISALLOWANCE OF REMUNERATION PAID TO WORKING PARTNE R I.E. M/S DHEERAJ DIAMOND TOOLS PVT. LTD (SUPRA). THIS ORDER IS DATED 29 - 06 - 2016 PASSED IN ITA 292/AHD/2012 AT PAGE 59 OF THE PAPER BOOK. THE REVENUE FAILS TO POINT OUT A NY DISTINCTION THERETO. WE DRAW SUPPORT THEREFROM AS WELL QUOTE HON BLE APEX COURT S DECISION IN CIT VS. RELIANCE PETRO - PRODUCT 322 ITR 158 HOLDING THAT EACH AND EVERY QUANTUM/DISALLOWANCE DOES NOT NECES SARILY RESULT IN SECTION 271(1)(C) PENALTY SINCE THE TWO ARE PARALLEL PROCEEDINGS STANDING ON DIFFERENT FOOTINGS. WE ACCORDINGLY DELETE THE IMPUGNED PENALTIES IN BOTH THE TWO ASSESSMENT YEARS. 5. THESE TWO ASSESSEE S APPEALS ARE ACCORDINGLY ALLOWED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 17 - 08 - 201 6 SD/ - SD/ - ( PRAMOD KUMAR ) ( S. S. GODARA ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 17 /08 /2016 AK I.T.A NO S . 2663 & 2664 /AHD/20 13 A.Y. 2008 - 09 & 2009 - 10 PAGE NO SHREEJI ENTERPRISES VS. ACIT 4 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,