The ITO, Ward-1, Anand V. Aartee Roadways, Anand

ITA 28/AHD/2010

• Counselvise Citation: 2820514 RSA 2010
• Duration Of Justice: 2 year(s) 3 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-04-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 09-04-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 04-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: A L THAKKAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, AHMEDABAD BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER I.T.A. NO.28 / AHD/2010 (ASSESSMENT YEAR 2003-04) ITO, WARD 1, ANAND VS. AARTEE ROADWAYS, AMUL DAIRY ROAD, ANAND PAN/GIR NO. : AADFA1735A (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI VINOD TANWANI, SR. DR RESPONDENT BY: SHRI A L THAKKAR, AR DATE OF HEARING: 09.04.2012 DATE OF PRONOUNCEMENT: 09.04.2012 O R D E R PER SHRI A. K. GARODIA, AM:- THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDE R OF LD. CIT(A) IV, BARODA DATED 29.10.2009 FOR THE ASSESSMENT YEAR 2003-04. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN DELETING THE PENALTY LE VIED U/S 271(1)(C) IN RESPECT OF THE FOLLOWING ADDITIONS, TH OUGH NO DOCUMENTARY EVIDENCE WAS PRODUCED TO PROVE THE GENU INENESS OF THE EXPENDITURE AND OVERLOOKING THE RATIO LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF DHARMENDRA TEXTILE PRO CESSORS 306 ITR 277 (SC). A) ADDITION IN RESPECT OF TRUCK REPAIR & TYRE P URCHASE OF RS. 4,48,857/-. B) ADDITION IN RESPECT OF BANK COMMISSION OF RS. 1,00,000/-. C) ADDITION IN RESPECT OF ADVERTISEMENT EXPENSES OF RS. 50,OOO/-. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED C1T(A) HAS ERRED IN DELETING THE PENALTY LE VIED U/S 271(1)(C) IN RESPECT OF ADDITION OF UNEXPLAINED INV ESTMENT OF RS. I.T.A.NO.28 /AHD/2010 2 8,87,8187- THROUGH THE ASSESSEE AVOIDED TO SUBMIT D ETAILS FOR VERIFICATION, AND OVERLOOKING THE RATIO LAID DOWN B Y THE HON'BLE SUPREME COURT IN THE CASE OF DHARMENDRA TEXTILE PRO CESSORS 306 ITR 277 (SC). ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE C1T(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESS ING OFFICER. RELIEF CLAIMED IN APPEAL. THE ORDER OF THE CIT(A) ON THE ISSUES RAISED IN THE AFORESAID GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFI CER BE RESTORED. 2. AT THE VERY OUTSET, IT WAS SUBMITTED BY THE LD. A.R. THAT IN QUANTUM PROCEEDINGS, THE ENTIRE MATTER WAS RESTORED BACK BY THE TRIBUNAL TO THE FILE OF THE A.O. FOR FRAMING DE NOVO ASSESSM ENT IN I.T.A.NO. 3465/AHD/2007 DATED 08.06.2010. HE SUBMITTED A COP Y OF THIS TRIBUNAL ORDER, WHICH IS PLACED ON RECORD. IT WAS SUBMITTED THAT UNDER THESE FACTS, THE PENALTY CANNOT SURVIVE. 3. LD. D.R. OF THE REVENUE SUPPORTED THE PENALTY OR DER. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND WE FIND THAT IN THE QUANTUM PROCEEDINGS, THE TRIBUNAL HAS RESTORED BACK THE ENTIRE ASSESSMENT TO THE FILE OF THE A.O. FOR FRAMING DE N OVO ASSESSMENT. HENCE, NO PENALTY CAN SURVIVE IN RESPECT OF SUCH AS SESSMENT WHICH HAS BEEN SET ASIDE. HENCE, THE PRESENT PENALTY CANNOT SURVIVE ALTHOUGH THE A.O. IS AT LIBERTY TO INITIATE PENALTY PROCEEDINGS AGAIN IF ADDITION IS MADE AGAIN BY THE A.O. IN SUCH DE NOVO ASSESSMENT BUT TH E PRESENT PENALTY CANNOT SURVIVE. 5. IN THE RESULT, APPEAL OF THE REVENUE STANDS DISM ISSED. 6. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (KUL BHARAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP I.T.A.NO.28 /AHD/2010 3 COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 9/4 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER9/4.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 9/4 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.12/4 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 12/4/12 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. .