M/s Panigaon Palace, Lucknow V. Income Tax Officer, Lucknow

ITA 283/LKW/2014

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 2071 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 29-09-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 16-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.283/LKW/2014 ASSESSMENT YEAR:2009-10 M/S PANIGAON PALACE, INSAF NAGAR, SECTOR-10, INDIRA NAGAR, LUCKNOW. PAN:AAKFP5224H VS. INCOME TAX OFFICER, RANGE-1(3), LUCKNOW. (APPELLANT) (RESPONDENT) ITA NO.324/LKW/2014 ASSESSMENT YEAR:2009-10 INCOME TAX OFFICER, RANGE-1(3), LUCKNOW. VS. M/S PANIGAON PALACE, INSAF NAGAR, SECTOR-10, INDIRA NAGAR, LUCKNOW. PAN:AAKFP5224H (APPELLANT) (RESPONDENT) O R D E R PER A. K. GARODIA, A.M. THESE ARE CROSS APPEALS FILED BY THE ASSESSEE AND REVENUE, WHICH ARE DIRECTED AGAINST THE ORDER OF CIT(A)-I, LUCKNOW DAT ED 20/02/2014 FOR ASSESSMENT YEAR 2009-10. 2. THE GROUNDS RAISED BY REVENUE ARE AS UNDER: 1. THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS O F THE CASE BY RESTRICTING THE ADDITION TO RS. 60 LAKH AS UNEXPLAI NED INVESTMENT PRIMARILY ON THE BASIS OF THE STATEMENT OF ONE PARTNER RECORDED DURING THE SURVEY PROCEEDINGS WHER EAS IN FINAL PARA OF THE ORDER, THE LD. CIT (A)-I, LUCKNOW HAS ASSESSEE BY SHRI RAKESH GARG, ADVOCATE REVENUE BY SHRI AMIT NIGAM, D. R. DATE OF HEARING 29/09/2015 DATE OF PRONOUNCEMENT 0 9 /10/2015 2 HIMSELF NOTED THAT THE SURRENDERED INCOME OF RS. 60 LAKH IS ALSO ASSESSABLE AS UNDISCLOSED INCOME OF THE FIRM O N THE BASIS OF THE ESTIMATED UNDISCLOSED INVESTMENT IN CO ST OF CONSTRUCTION AT RS.62,14,306/- AS PER VALUATION REP ORT SUBMITTED BY THE DVO AND THE GROSS RECEIPTS OF RS.56,25,000/- FROM BOOKING OF MARRIAGE HALL ESTIMA TED ON THE BASIS OF STATEMENT RECORDED AND DIARIES / DOCUM ENTS ETC. IMPOUNDED DURING THE COURSE OF SURVEY. BUT WHILE PA SSING THE ORDER, THE LD CIT (A)-I, LUCKNOW HAS RESTRICTED THE ADDITION ONLY TO RS. 60 LAKH, WHICH IS NOT IN CONSO NANCE WITH HIS OWN CONCLUSION. 3. THE GROUNDS RAISED BY ASSESSEE ARE AS UNDER: 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) HAS ERRED IN LAW AND ON FACTS IN PASSING THE ORDER WHIC H IS ILLEGAL, IMPROPER AND AGAINST THE PRINCIPLES OF NAT URAL JUSTICE. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS IN PASSING THE ORDER WITH OUT GIVING ADEQUATE OPPORTUNITY OF BEING HEARD AND WITHOUT CONSIDERING THE WRITTEN SUBMISSION SUBMITTED BEFORE HIM AND BEFORE THE LEARNED ASSESSING OFFICER. 3. THE LD COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE ASSESSING OFFICER TO IMPOSE PENALTY U/S 271(1)(C) IN RESPECT OF QUANTUM ADDITIO N OF RS. 60 LAKHS FOLLOWING WHICH PENALTY OF RS.18,54,000/- HAS BEEN IMPOSED BY THE ASSESSING OFFICER AFTER GIVING THE E FFECT OF APPEAL. 4. AT THE VERY OUTSET, IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT IN THE QUANTUM APPEAL IN I.T.A. NO. 323 AND 284/LKW /2014 DATED 23/09/2015 (COPY SUBMITTED), THE ENTIRE ADDITION MADE BY THE A SSESSING OFFICER HAS BEEN DELETED AND THE APPEAL OF THE ASSESSEE WAS ALLOWED AND THAT OF THE REVENUE WAS DISMISSED. HE SUBMITTED THAT UNDER THESE FACTS , NO PART OF PENALTY IS SUSTAINABLE. 4. LEARNED D.R. OF THE REVENUE SUPPORTED THE PENALT Y ORDER. 3 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT IN THE PENALTY ORDER, IT IS NOTED BY THE ASSESSING OFFICER THAT TH ERE WAS AN ADDITION OF RS.160 LAC FOR WHICH THE ASSESSING OFFICER IMPOSED PENALTY OF RS.95,33,648/-. AS PER THE TRIBUNAL ORDER IN QUANTUM PROCEEDINGS, IT IS NO TED BY THE TRIBUNAL THAT THE ASSESSING OFFICER HAS ESTIMATED THE UNEXPLAINED INV ESTMENT IN THE HANDS OF THE ASSESSEE AT RS.130 LAC AND MADE ADDITION THEREOF. O NE MORE ADDITION OF RS.30 LAC WAS MADE ON ACCOUNT OF UNDISCLOSED INCOME FROM BOOKING OF PANIGAON PALACE. THE ADDITION WAS REDUCED BY LEARNED CIT(A) TO RS.60 LAC. IN THIS MANNER, RELIEF OF RS.100 LAC WAS ALLOWED BY CIT(A) AGAINST WHICH APPEAL WAS FILED BY THE REVENUE IN QUANTUM PROCEEDINGS. THE AS SESSEE ALSO FILED APPEAL FOR THE ADDITION OF RS.60 LAC SUSTAINED BY CIT (A). IN THE QUANTUM PROCEEDINGS, THE APPEAL OF THE ASSESSEE WAS ALLOWED AND THAT OF THE REVENUE WAS DISMISSED AND IN THIS MANNER, IT IS SEEN THAT T HE ENTIRE ADDITION OF RS.160 LAC MADE BY THE ASSESSING OFFICER ON ACCOUNT OF CON STRUCTION IN BUILDING AND ALLEGED UNDISCLOSED INCOME FROM BOOKING OF PANIGAON PALACE HAD BEEN DELETED. AS A RESULT, NO PENALTY CAN SURVIVE. WE HOLD ACCOR DINGLY. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED AND THE APPEAL OF THE REVENUE IS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMB ER DATED:09/10/2015 *SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT . REGISTRAR