Shri Ojas Ashokbhai Mehta, Surat V. The Income tax Officer,Ward-3(1), Surat

ITA 296/AHD/2013

• Counselvise Citation: 29620514 RSA 2013
• Duration Of Justice: 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 07-08-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 01-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C MATHEWS
• Assessee Lawyers: S B VAIDYA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI D.K. TYAGI, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER ITA NO. 296 & 297/AHD/2013 A.Y: 2008-09 SHRI OJAS ASHOKBHAI MEHTA, 1002, AJANTA APARTMENT, OPP. BLIND SCHOOL, GHOD DOD ROAD, SURAT 395001. PAN : AEOPM5568D VS ITO, WARD 3 (1), SURAT. (ASSESSEE) (REVENUE) REVENUE BY : SHRI K. C. MATHEWS, SR. D. R. ASSESSEE(S) BY : SHRI S. B. VAIDYA, A.R. / // / DATE OF HEARING : 08/08/2013 / DATE OF PRONOUNCEMENT: 23/08/2013 / O R D E R PER BENCH: BOTH THESE APPEALS ARE FILED BY THE ASSESSEE, WHIC H ARE DIRECTED AGAINST TWO SEPARATE ORDERS OF LEARNED CIT (A) IV, SURAT, BOTH DATED 0 6.11.2012 FOR THE SAME A.Y. 2008 09, IN RESPECT OF PENALTY U/S 271 (1) (C) & 271B RESPECTIV ELY. 2. FIRST, WE TAKE UP THE APPEAL IN ITA NO. 296/AHD/ 2013 WHICH IS IN RESPECT OF PENALTY U/S 271 (1) (C). 3. IT WAS SUBMITTED BY THE LEARNED AR FOR THE ASSES SEE BEFORE US THAT UNDER SIMILAR FACTS, PENALTY WAS DELETED BY THE TRIBUNAL IN THE CASE OF MURARILAL RATANLAL AGARWAL VS. ACIT IN ITA NO. 615/AHD/2012 DATED 05.07.2013. HE SUBMITTED A COPY OF THIS TRIBUNAL DECISION. AS AGAINST THIS, LEARNED DR OF THE REVENUE SUPPORTED T HE PENALTY ORDER. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT IN THE CASE OF MURARILAL RATAN LAL AGARWAL VS. ACIT (SUPRA), THE FACTS AS NOTED BY THE TRIBUNAL WERE THAT A SEARCH AND SEIZUR E ACTION WAS TAKEN WHEREIN ONE BANK ACCOUNT WAS FOUND. ON BEING CONFRONTED, THE ASSESSE E ADMITTED THAT IT IS HIS BENAMI BANK ITA NO.296 &297/AHD /2013 - 2 - ACCOUNT AND ALSO ADMITTED THAT ALL THE TRANSACTIONS REFLECTED IN THIS BANK ACCOUNT BELONGED TO HIM. THE ASSESSEE DECLARED RS. 5.50 LACS ON THIS AC COUNT BUT THE A.O. NOTED THAT A SUM OF RS. 60,000/- WAS INTRODUCED BY THE ASSESSEE AS SEED MON EY AND HE WORKED OUT THE PEAK AT RS. 14,45,702/- TOTAL RS. 15,05,702/- AND AFTER DEDUCTI NG RS. 5.50 LACS, HE MADE ADDITION OF RS. 955,702/-. FOR THIS, HE IMPOSED A PENALTY OF RS. 50 7,300/- U/S 271 (1) (C) OF I T ACT SINCE, THE ADDITION WAS UPHELD BY LEARNED CIT (A). UNDER THESE FACTS, PENALTY WAS DELETED BY THE TRIBUNAL. IN THE PRESENT CASE ALSO, AN ADDITION OF RS. 22,72,788/- WAS MADE ON THE BASIS OF PEAK OF UNDISCLOSED BANK ACCOUNT AND A FURTHER ADDI TION OF RS. 248,208/- WAS MADE IN RESPECT OF ALLEGED INCOME AFTER THE PEAK DATE FOR T HE SAME BANK ACCOUNT. IN THAT CASE, THE UNDISCLOSED BANK ACCOUNT WAS FOUND AFTER SEARCH BUT IN THE PRESENT CASE, THE SAME WAS FOUND ON THE BASIS OF AIR. THE TOTAL CREDIT IN THIS BANK ACCOUNT WAS OF RS. 139.69 LACS BUT THE ADDITION IS MADE ON THE BASIS OF PEAK WORKING AND S OME ESTIMATED INCOME AFTER PEAK DATE. FROM THE ABOVE ANALYSIS, IT COMES OUT THAT THE FACT S IN THE PRESENT CASE ARE SIMILAR IF NOT IDENTICAL WITH THE FACTS IN THE CASE OF MURARILAL R ATANLAL AGARWAL VS. ACIT (SUPRA). SINCE PENALTY WAS DELETED BY THE TRIBUNAL IN THAT CASE AN D FACTS ARE SIMILAR IN THE PRESENT CASE, WE FIND NO REASON TO TAKE A CONTRARY VIEW IN THE PRESE NT CASE. HENCE, BY RESPECTFULLY FOLLOWING THIS TRIBUNAL DECISION, WE DELETE THE PENALTY. 5. IN THE RESULT, THIS APPEAL OF THE ASSESSEE IS A LLOWED. 6. NOW, WE TAKE UP THE APPEAL IN ITA NO. 297/AHD/20 13 WHICH IS IN RESPECT OF PENALTY U/S 271B. 7. IT WAS SUBMITTED BY THE LEARNED AR FOR THE ASSES SEE BEFORE US THAT UNDER SIMILAR FACTS, PENALTY WAS DELETED BY THE HONBLE ALLAHABAD HIGH C OURT IN THE CASE OF CIT VS. S. K. GUPTA & CO., 322 ITR 86. AS AGAINST THIS, LEARNED DR OF T HE REVENUE SUPPORTED THE PENALTY ORDER. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT IN THE CASE OF CIT VS. S. K. G UPTA & CO. (SUPRA), THE FACTS AS NOTED BY THE HONBLE ALLAHABAD HIGH COURT WERE THAT THE ASSE SSEE NEITHER MAINTAINED THE BOOKS OF ACCOUNT AS REQUIRED U/S 44AA NOR GOT THE BOOKS AUDI TED AS REQUIRED U/S 44AB. UNDER THESE FACTS, THE PENALTY IMPOSED IN THAT CASE U/S 271B WA S DELETED BY HONBLE ALLAHABAD HIGH COURT ON THIS BASIS THAT WHEN A PERSON COMMITS AN O FFENCE BY NOT MAINTAINING THE BOOKS OF ITA NO.296 &297/AHD /2013 - 3 - ACCOUNT AS CONTEMPLATED BY SECTION 44AA, THE OFFENC E IS COMPLETE AND AFTER THAT, THERE CAN BE NO POSSIBILITY OF ANY OFFENCE AS CONTEMPLATED BY SECTION 44AB. IT WAS HELD THAT ON THIS REASONING, PENALTY IMPOSED U/S 271B IS ERRONEOUS AN D THE SAME WAS DELETED. IN THE PRESENT CASE ALSO, IT IS ADMITTED FACTUAL POSITION THAT THE ASSESSEE DID NOT MAINTAIN THE BOOKS AS CONTEMPLATED U/S 44AA. HENCE, THE FACTS ARE IDENTIC AL IN THE PRESENT CASE AND WE FIND NO REASON TO TAKE A CONTRARY VIEW IN THE PRESENT CASE. HENCE, BY RESPECTFULLY FOLLOWING THIS JUDGMENT OF HONBLE ALLAHABAD HIGH COURT, WE DELETE THE PENALTY. 9. IN THE RESULT, THIS APPEAL OF THE ASSESSEE IS A LSO ALLOWED. 10. IN THE COMBINED RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTION ED ON THE CAPTION PAGE. SD/- SD/- (D.K. TYAGI) (A.K. GARODIA) JUDICIAL MEMBER A CCOUNTANT MEMBER / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT. 3. #$#% ' '& / CONCERNED CIT 4. ' '&() / THE CIT(A)-III, AHMEDABAD 5. )*' %, ' ' % , ,-$ / DR, ITAT, AHMEDABAD 6. *./ 0 / GUARD FILE. / BY ORDER, 1 11 1/ // /,' #2 ,' #2 ,' #2 ,' #2 ( DY./ASSTT.REGISTRAR) ' ' % ' ' % ' ' % ' ' % , , , , ,-$ ,-$ ,-$ ,-$ / ITAT, AHMEDABAD