Shri Gopal Virjibhai Makwana, Ahmedabad V. The Dy.CIT.,Circle-14, Ahmedabad

ITA 2844/AHD/2010

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 2025 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 11-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G S SOURYAVANSHID R
• Keywords: TDS; Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI A.N.PHAUJA, ACCOUNTANT MEMBER ITA NO.2844/AHD/2010 ASSESSMENT YEAR:2007-08 DATE OF HEARING:18.2.11 DRAFTED:21.2.11 GOPAL VIRJIBHAAI MAKWANA 42, ABHINANDAN SOCIETY, NR RANNA PARK, GHATLODIA, AHMEDABAD -380061 PAN NO.AENPM5099F V/S. DCIT, CIRCLE-14 AHMEDABAD (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI RAJESH MEHTA, AR RESPONDENT BY:- SHRI G.S. SOURYAVANSHI-DR O R D E R PER BENCH:- THIS APPEAL BY THE ASSESSEE IS ARISING OUT OF THE ORDER OF COMMISSIONER OF INCOME-TAX(APPEALS)-XXI, AHMEDABAD IN APPEAL NO. CI T(A)-XXI/ 172 / DC.CIR.14/10-11 DATED 09-08-2010. THE ASSESSMENT WA S FRAMED BY THE DCIT, CIRCLE-14, AHMEDABAD U/S 143(3) OF THE INCOME-TAX A CT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 24-12-2009 FOR T HE ASSESSMENT YEAR 2007-08. THE PENALTY UNDER DISPUTE WAS LEVIED BY DCIT, CIRCLE-14 , AHMEDABAD U/S.271(1)(C) OF THE ACT VIDE HIS ORDER DATED 23-06-2010. 2. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AGA INST THE ORDER OF CIT(A) CONFIRMING LEVY OF PENALTY U/S.271(1)(C) OF THE ACT ON THE INTEREST INCOME VOLUNTARILY OFFERED. FOR THIS, ASSESSEE HAS RAISED THE FOLLOWIN G EFFECTIVE GROUND NO.1 TO 4 :- 1. THE LEARNED CIT(A)-XXI, AHMEDABAD HAS ERRED IN CONFIRMING THE LEVY OF PENALTY U/S.271(1)(C) OF THE IT ACT, 1961 OF RS.38, 590/- IN RESPECT OF INTEREST INCOME VOLUNTARILY OFFERED BY THE APPELLANT DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS. 2. THE LEARNED CIT-XXI FAILED TO APPRECIATE THE FAC T THE INTEREST INCOME ON WHICH TDS HAS BEEN DEDUCTED WAS NOTHING BUT A DISCL OSED INCOME AND THE IT)A 2844/AHD/2010 A.Y. 2007-08 GOPAL V MAKWANA V. DCIT C.IR.14 ABD PAGE 2 PENALTY COULD NOT BE LEVIED ON ANY DISCLOSED INCOME . FURTHER YOUR APPELLANT HAS PAID THE TAX WITH INTEREST EVEN BEFORE THE ISSU ANCE OF THE SHOW CAUSE NOTICE BY THE LD. A.O WHICH PROVES THE BONAFIDES OF THE APPELLANT. FURTHER THE LD. CIT(A) FAILED TO APPRECIATE THAT YOUR APPELLANT HAS ALSO NOT CLAIMED THE TDS AMOUNT ON SUCH INTEREST INCOME. AND THEREFORE Y OUR APPELLANT PRAYS TO DELETE THE PENALTY LEVIED ON SUCH INTEREST INCOME. 3. THE LEARNED CIT(A)-XXI FAILED TO APPRECIATE THE SUBMISSION MADE BY YOUR APPELLANT AND HAS ALSO FAILED TO APPRECIATE THE FAC T THAT THERE WAS NO GUILTY MIND AND OR MENS REA WHILE CONFIRMING THE LEVY OF P ENALTY AND THEREFORE THE ORDER UPHELD BY THE CIT(A) REQUIRES TO BE DELETED. 4. ON THE BASIS OF FACTS AS ATTACHED HEREWITH AND L EGAL GROUNDS AS MENTIONED ABOVE YOUR APPELLANT HEREBY PRAYS YOUR HONOUR TO DE LETE THE ENTIRE PENALTY OF RS.38,590- LEVIED U/S.271(1) OF THE IT ACT, 1961. 3. WE FIND THAT THE ASSESSEE HAS OFFERED BALANCE AM OUNT OF INTEREST INCOME AT RS.57,274/- VOLUNTARILY AS CLAIMED BY ASSESSEE AND ASSESSING OFFICER LEVIED THE PENALTY U/S.271(1) OF RS.38,590/- ON THIS. WE FURT HER FIND THAT CIT(A) HAS NOT GIVEN ANY FINDING IN RESPECT OF VOLUNTARILY DISCLOSURE, W HETHER THE DISCLOSURE IS VOLUNTARILY OR NOT AND IN THE ABSENCE OF FINDINGS ON THIS, WE A RE NOT IN A POSITION TO DECIDE THE APPEAL AT THIS STAGE. ACCORDINGLY, WE SET ASIDE THE PENALTY TO THE FILE OF CIT(A) FOR FRESH ADJUDICATION. THE APPEAL OF ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. 4. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 22/02/2011 SD/- SD/- (A.N.PHAUJA) (MAHAVIR SINGH) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, DATED : 22/02/2011 *DKP COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)-III, AHMEDABAD 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD