Smt. Kokilaben R.Ramani, Ahmedabad V. The Income Tax Officer,Ward-11(3), Ahmedabad

ITA 2927/AHD/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8097 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 05-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ADITYA SHUKLA
• Assessee Lawyers: P B SHAH
• Keywords: Initiation of penalty proceedings

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD .., , BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER & SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ./ I.T.A. NO.2927/AHD/2014 ( / ASSESSMENT YEAR : 2009-10 SMT. KOKILABEN R RAMANI 35-36, NIRANJAN SOCIETY OPP. CHIRAG DIAMOND ESTATE BAPUNAGAR,AHMEDABAD-380 024 / VS. THE ITO WARD-11(3) AHMEDABAD $ ./ ./ PAN/GIR NO. : ABMPR 1338 M ( $' / APPELLANT ) .. ( ($' / RESPONDENT ) $') / APPELLANT BY : SHRI P.B. SHAH, AR ($'*) / RESPONDENT BY : SHRI ADITYA SHUKLA, DR +,*- / DATE OF HEARING 10/11/2017 ./0*- / DATE OF PRONOUNCEMENT 29/ 11 /2017 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL FILED AT THE INSTANCE OF THE ASSESSEE IS AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS )-XVI, AHMEDABAD [CIT(A) IN SHORT] DATED 02/09/2014 WHEREBY ACTION OF THE CIT(A) IN CONFIRMING THE PENALTY OF RS.11,09,250/- IMPOSED BY THE ASSESSING OFFICER (AO) UNDER S.271(1)(C) OF THE INC OME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'THE ACT') HAS BEEN AS SAILED BY THE ASSESSEE. ITA NO.2927/AHD /2014 SMT. KOKILABEN R. RAMANI VS. ITO ASST.YEAR 2009-10 - 2 - 2. AS NOTED, THE SOLITARY GRIEVANCE IN THE PRESE NT APPEAL IS AGAINST THE IMPOSITION OF PENALTY LEVIED UNDER S.271(1)(C) OF THE ACT. 3. WITH THE ASSISTANCE OF THE LD.AR FOR THE ASSES SEE, WE FIND THAT THE ADDITIONS/DISALLOWANCES MADE IN THE QUANTUM ASS ESSMENT GIVING RISE TO THE IMPOSITION OF PENALTY IN APPEAL HAS BEEN SET ASIDE AND RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER (AO) BY T HE COORDINATE BENCH OF TRIBUNAL IN QUANTUM IN ITA NO.1033/AHD/2013 VIDE ORDER DATED 06/06/2014. ON THE STRENGTH OF THE TRIBUNALS ORD ER, IT WAS CONTENDED ON BEHALF OF THE ASSESSEE THAT SINCE THE ADDITION/DISA LLOWANCE HAS BEEN SET ASIDE AND RESTORED TO THE FILE OF AO FOR ADJUDICATI ON, THE BASIS FOR IMPOSITION OF PENALTY DOES NOT SURVIVE AT PRESENT. 4. THE LD.DR RELIED UPON THE ORDER OF THE CIT(A). 5. ON DUE CONSIDERATION OF THE FACTS AND CIRCUMSTAN CES OF THE CASE, WE FIND THAT SUB-CLAUSE (III) OF SECTION 271(1)(C) PROVIDES MECHANISM FOR QUANTIFICATION OF PENALTY. IT CONTEMPLATES THAT TH E ASSESSEE WOULD BE DIRECTED TO PAY A SUM IN ADDITION TO TAXES, IF ANY, PAYABLE HIM, WHICH SHALL NOT BE LESS THAN BUT WHICH SHALL NOT EXCEED T HREE TIMES THE AMOUNT OF TAX SOUGHT TO BE EVADED BY REASON OF CONCEALMENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME. IN OTHER WORDS, THE QUANTIFICATION OF THE PENALTY IS DEPENDENT UPON THE ADDITIONS MADE TO THE INCOME OF THE ASSESSEE. UPTO AND UNTIL THE ISSUE R EGARDING DETERMINATION ITA NO.2927/AHD /2014 SMT. KOKILABEN R. RAMANI VS. ITO ASST.YEAR 2009-10 - 3 - OF THE TAXABLE INCOME IS FINALIZED, PENALTY UNDER S ECTION 271(1)(C) OF THE ACT CANNOT BE IMPOSED UPON THE ASSESSEE. THE DETER MINATION OF TAXABLE INCOME OF THE ASSESSEE IS PRESENTLY SUBJUDICED BEFO RE THE AO OWING TO THE ORDER OF THE ITAT IN QUANTUM PROCEEDINGS. AFTE R ADJUDICATION THE ISSUE OF QUANTUM ON MERIT, IT WILL BE IN THE DISCRE TION OF THE AO TO CONSIDER INITIATION OF PENALTY PROCEEDINGS ON THIS ISSUE AGAINST THE ASSESSEE AFRESH IN ACCORDANCE WITH LAW. IN VIEW OF THE ABOVE, WE SET ASIDE THE PENALTY ORDER PASSED BY THE AO UNDER S.27 1(1)(C) OF THE ACT. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 29 / 1 1 /201 7 SD/- SD/- (..) ( ) ( S.S. GODARA ) ( PRADIP KUMAR KEDIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; 29/ 11 /2017 4..+,.+../ T.C. NAIR, SR. PS !'#$%$' / COPY OF THE ORDER FORWARDED TO : 1. $' / THE APPELLANT 2. ($' / THE RESPONDENT. 3. 567- 8- / CONCERNED CIT 4. 8- ( ) / THE CIT(A)-XVI, AHMEDABAD 5. 9:-+67 , 670 , 5 / DR, ITAT, AHMEDABAD 6. <, / GUARD FILE. / BY ORDER, //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD