Shri Ashwin D.Naik, Ahmedabad V. The Income tax Officer,Ward-6(4), Ahmedabad

ITA 2794/AHD/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6264 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 8 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 29-06-2011
• Assessment Year: 1992-1993
• Appeal Filed On: 13-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G S SOURYAVANSHI
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C BEFORE SHRI G.D. AGARWAL, VICE-PRESIDENT (AZ) AND SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER DATE OF HEARING : 29/6/11 DRAFTED ON:29/6/11 ITA NO.2794/AHD/2009 ASSESSMENT YEAR : 1992-93 SHRI ASHWIN D.NAIK PROP.NAVYUG ELECTRIC CORP. PLOT NO.3 & 4 GIDC ESTATE, VATVA VS. THE ITO WARD-6(4) AHMEDABAD PAN/GIR NO. : AAFPN 4432 J (APPELLANT) .. (RESPONDENT) APPELLANT BY : NONE (WRITTEN SUBMISSIONS) RESPONDENT BY: SHRI G.S. SOURYAVANSHI, SR. D.R. O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL AT THE BEHEST OF THE ASSESSEE W HICH HAS EMANATED FROM THE ORDER OF LEARNED CIT(APPEALS)-XI, AHMEDABA D DATED 30/12/2008 PASSED FOR ASSESSMENT YEAR 1992-93 AND THE ONLY GR OUND IS IN RESPECT OF CONFIRMATION OF PENALTY OF RS.95,896/- LEVIED U/S.2 71(1)(C) OF THE I.T.ACT. 2. ON THE DATE OF HEARING, NO ONE WAS PERSONALLY PR ESENT FROM THE SIDE OF THE APPELLANT-ASSESSEE, HOWEVER, WRITTEN SUBMISSION S WERE PLACED ON RECORD. 3. FROM THE SIDE OF THE REVENUE, WE HAVE HEARD LEAR NED DEPARTMENTAL REPRESENTATIVE MR.G.S. SOURYAWANSHI, WHO HAS PLACED RELIANCE ON THE ORDERS OF THE REVENUE AUTHORITIES. 4. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING PE NALTY ORDER PASSED U/S.271(1)(C) OF THE I.T. ACT, 1961 DATED 19/12/200 7 AND ASSESSMENT ORDER ITA NO. 2794/AHD/2009 SHRI ASHWIN D.NAIK VS. ITO ASST.YEAR - 1992-93 - 2 - MADE U/S.143(3) DATED 20/03/1995 WERE THAT THE ASSE SSEE IS AN INDIVIDUAL IS IN THE BUSINESS OF MANUFACTURING OF ELECTRONIC GOODS. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAS N OTICED SOME DISCREPANCIES IN RESPECT OF THE STOCK STATEMENT WHICH WAS FOUND S UBMITTED TO CENTRAL BANK OF INDIA. AS PER THE ASSESSEES STATEMENT, THE VALUE OF THE CLOSING STOCK WAS AT RS.19,84,419/- WHICH WAS SUBSEQUENTLY REVISED AT RS .18,88,523/-. THE REASON FOR THE SAID REVISION IN THE STOCK STATEMENT WAS TH AT THE ASSESSEE HAD MADE SALES OF RS.1,08,505/- WHICH REMAINED TO BE SHOWN I N THE STOCK STATEMENT ACCOUNT EARLIER FILED. THE SALES WERE THEREAFTER R ECORDED AND THE STOCK WAS REDUCED BY A SUM OF RS.95,896/-. THE MATTER WAS CA RRIED BEFORE THE APPELLATE AUTHORITIES AND WHILE IMPOSING THE PENALTY U/S.271( 1)(C) OF THE I.T.ACT, THE ASSESSING OFFICER HAS MADE AN OBSERVATION THAT THE HON'BLE TRIBUNAL VIDE ITA NO.3078/AHD/2003 (FOR A.Y. 1992-93) ORDER DATED 27/ 4/2007 HAD CONFIRMED THE IMPUGNED ADDITION OF RS.95,896/-. THE ASSESSIN G OFFICER HAS ALSO NOTED THAT THE HOUSE-HOLD EXPENDITURE OF RS.19,000/- WAS ALSO CONFIRMED BY THE TRIBUNAL. WITH THE RESULT, ON THE TOTAL OF THE TWO , I.E. RS.1,14,896/-, THE ASSESSING OFFICER HAS IMPOSED A PENALTY OF RS.38,16 6/- U/S.271(1)(C) OF THE I.T.ACT. THE MATTER WAS CARRIED BEFORE THE LEARNED CIT(APPEALS) WHO HAS AFFIRMED THE ACTION OF THE ASSESSING OFFICER ONLY I N RESPECT OF THE ADDITION PERTAINING TO VALUATION OF CLOSING STOCK BUT DIRECT ED TO REDUCE THE PENALTY IN RESPECT OF THE HOUSE-HOLD EXPENDITURE. AGAINST THE PART RELIEF, NOW THE ASSESSEE IS FURTHER IN APPEAL. 5. ON PERUSAL OF THE WRITTEN SUBMISSIONS NOW P LACED BEFORE US, WE HAVE NOTICED THAT THE ITAT B BENCH AHMEDABAD IN ITA N O.3078/AHD/2003- SUPRA ORDER DATED 27/04/2007 HAS NO WHERE ALLEGED THAT THE MATERIAL FACTS WERE DELIBERATELY CONCEALED BY THE ASSESSEE OR SUCH DISC REPANCY WOULD LEAD TO REJECTION OF BOOKS. SINCE THE ADMITTED FACTUAL POS ITION WAS THAT A SALE FIGURE WAS NOT DULY RECORDED WHICH RESULTED INTO THE IMPUG NED ADDITION, IT WAS HELD THAT THE RESULTED AMOUNT WAS RIGHTLY TAXED IN THE H ANDS OF THE ASSESSEE. SINCE ITA NO. 2794/AHD/2009 SHRI ASHWIN D.NAIK VS. ITO ASST.YEAR - 1992-93 - 3 - THE ASSESSEES EXPLANATION WAS NOT FOUND FALSE, THE REFORE IN OUR CONSIDERED OPINION, THIS IS NOT A FIT CASE TO IMPOSE LEVY OF C ONCEALMENT PENALTY. THE APPELLANT HAS ALSO PLACED RELIANCE ON A DECISION OF HON'BLE PUNJAB & HARYANA HIGH COURT PRONOUNCED IN THE CASE OF CIT VS. SSP (P .) LTD. REPORTED AT [2008]172 TAXMAN 52(PUNJ. & HAR.) FOR THE LEGAL PRO POSITION THAT IF THERE WAS AN ADDITION IN RESPECT OF ONLY VALUATION OF CLOSING STOCK WHICH HAD ZERO EFFECT BEING TAX NEUTRAL HAD IT BEEN TAKEN IN THE OPENING STOCK, THEREFORE SUCH AN ADDITION SHOULD NOT BE MADE THE BASIS FOR LEVY OF C ONCEALMENT PENALTY. RESPECTFULLY FOLLOWING THE SAID PRECEDENT, WE HEREB Y HOLD THAT NO PENALTY IS LEVIABLE ON THE IMPUGNED ADDITION, HENCE DIRECT TO DELETE THE SAME. GROUND IS ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 30 TH JUNE, 2011. SD/- SD/- ( G.D. AGARWAL ) ( MUKUL KR. SHRAWAT ) VICE PRESIDENT (AZ) JUDICIAL ME MBER AHMEDABAD; DATED 30 / 06 /2011 T.C. NAIR, SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE DEPARTMENT. 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-XI, AHMEDABAD 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD ITA NO. 2794/AHD/2009 SHRI ASHWIN D.NAIK VS. ITO ASST.YEAR - 1992-93 - 4 - 1. DATE OF DICTATION.. 29.6.2011 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 29.6.2011 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S 30.6.2011 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 30.6.2011 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER