Shri Bachubhai Dudhwala Pvt.Ltd., Bhavnagar V. The Dy.CIT.,Cent.Circle-1(3), Bhavnagar

ITA 2960/AHD/2009

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 57268 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 29-02-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 30-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL KUMAR
• Assessee Lawyers: P M MEHTA
• Keywords: Business income
• Section: 153A

Judgement Text

ITA N O.2960/AHD/2009 ASSESSMEN T YEAR 2004-05. 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI T. R. MEENA A.M.) I.T.A. NO. 2960 /AHD/2009 (ASSESSMENT YEAR: 2004 -05 ) BACHUBHAI DUDHAWALA PVT. LTD., PLOT NO.44/45, VITHAL WADI, UDHYOG NAGAR, BHAVNAGAR. (APPELLANT) VS. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1(3), ROOM NO.339, AAYAKAR BHAVAN, ASHRAM ROAD, AHMEDABAD. (RESPONDENT) PAN: AABCB 3358C APPELLANT BY : SHRI P. M. MEHTA. RESPONDENT BY : SHRI RAHUL KUMAR, SR. D.R. ( )/ ORDER DATE OF HEARING : 29-2-2012 DATE OF PRONOUNCEMENT : 16-3-2012 PER: SHRI T. R. MEENA, ACCOUNTANT MEMBER. THIS APPEAL IS FILED BY THE REVENUE DIRECTED AGA INST THE ORDER OF CIT (A)-I, AHMEDABAD DATEDE 27-8-2009 FOR THE ASSESSME NT YEAR 2004-05. 2 . THE SOLE GROUND OF APPEAL RAISED BY THE REVENUE IS AS UNDER: - ORDER U/S. 271(1)(C ) PASSED BY THE DY. COMMISSIO NER OF INCOME TAX LEVYING PENALTY OF RS.3,76,690/- IS BAD IN LAW AND MAY BE QUASHED. 3. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE CO MPANY FILED ITS RETURN OF INCOME FOR ASSESSMENT YEAR 2004-05 ON 31-10-2004 DE CLARING TOTAL INCOME OF ITA N O.2960/AHD/2009 ASSESSMEN T YEAR 2004-05. 2 RS.6,17,268/-.THEREAFTER, SEARCH ACTION U/S. 132 OF THE INCOME TAX ACT WAS CONDUCTED AT THE PREMISES OF THE ASSESSEE-COMPANY O N 30 TH NOVEMBER,2004 AND NOTICE U/S. 153A OF THE ACT WAS ISSUED AND SERV ED ON 18-2-2005. IN RESPONSE TO THE SAID NOTICE ASSESSEE COMPANY FILED ITS RETURN OF INCOME ON 20- 9-2005 DECLARING TOTAL INCOME OF RS.16,67,268/- TH EREBY DECLARING ADDITIONAL INCOME OF RS.10,50,000/- AND THE SAME WAS OFFERED T O TAX. THE ASSESSING OFFICER THEREAFTER PASSED ASSESSMENT ORDER DATED 27 -12-2006 U/S. 153A DETERMINING TOTAL TAXABLE INCOME AT RS. 25,83,740/- . PENALTY PROCEEDINGS WERE INITIATED U/S. 271(1)(C) BY THE ASSESSING OFFICER F OR FURNISHING INACCURATE PARTICULARS OF INCOME. 4. DURING THE COURSE OF SEARCH EVIDENCES INDICATING UNACCOUNTED PURCHASES OF RS. 32,87,102 FROM LAXMI DAIRY AND RS.35,83,000/ - FROM KARMA BHUMI DAIRY MADE BY THE ASSESSEE WERE FOUND AS NOTED IN T HE DIARY WHICH WAS SEIZED AS PER ANNEXURE A-19. SHRI H. K. PAREKH, MANAGING D IRECTOR OF THE COMPANY ACCEPTED THAT THE UNACCOUNTED PURCHASES AS NOTED IN THE SAID DIARY HAVE BEEN MADE FROM THE RESPECTIVE PARTIES BY THE ASSESSEE. T HEN THE ASSESSEE HAD DISCLOSED ADDITIONAL INCOME OF RS.10,50,000/-IN THE RETURN FILED U/S. 153A OF THE ACT. DURING THE ASSESSMENT PROCEEDINGS THE ASS ESSING OFFICER HAS REJECTED BOOK RESULT U/S. 145(2) OF THE ACT AND ESTIMATED G. P. @ 14% OF THE TOTAL SALES INCLUDING UNACCOUNTED SALES. THUS THE TOTAL SALES I NCLUDING UNACCOUNTED SALES WERE RS.11,96,06,324/- AND GP @ 14% WAS ESTIMATED AT RS.1,67,44,885/- AS AGAINST RS.1,47,78,813/- DISCLOSED BY THE ASSESSEE. THUS THE DIFFERENCE OF RS.19,66,474.- WAS ADDED TO THE TO THE TOTAL INCOME AFTER EXCLUDING DISCLOSURE OF RS.10,50,000/-. AGAINST THIS ADDITION, THE ASSES SEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT (A)-I, AHMEDABAD AND THE LD. CIT (A) VIDE ORDER DATED 30-4-2007 DELETED THE ADDITION MADE BY THE AS SESSING OFFICER. ITA N O.2960/AHD/2009 ASSESSMEN T YEAR 2004-05. 3 5. BEFORE THE LD. CIT (A), THE AR OF THE ASSESSEE M ADE DETAILED SUBMISSIONS ON PAGES 2 TO 6 OF HIS ORDER DATED 27-8 -2009. HE ALSO RELIED ON VARIOUS DECISIONS IN SUPPORT OF HIS CONTENTIONS THE Y ARE AS UNDER:- 1. NIHALCHAND BHAADRILAL 135 ITR 159 (MP) 2. KAJRIWAL IRON STORES 168 ITR 715 (RAJ.) 3. LAKHDIR LALJI 85 ITR 77 (GUJ.) . THE LD. COUNSEL FURTHER RELIED ON THE FOLLOWING DE CISIONS:- 1. CHEAP CYCLE STORES VS. CIT 281 ITR 166 (ALL HC) 2. CIT VS. SHYAMAL M. SONI 144 TAXMAN 666 (MP HC) 3. VINOD GOYAL VS. ACIT 115 TTJ 559 (NAG.) 4. CIT VS. BETA NEPHTOL LTD., 272 ITR 323 (MP HC) 5. CIT VS. S. V. ELECTRICALS (P) LTD. 274 ITR 334 MP HC) 6. DHARMENDRA TEXTILE PROCESSORS (306 ITR 277) 7. PUNJAB & HARYANA HIGH COURT DECISION IN THE CAS E OF CIT VS. M/S. SIDDHARTHA ENTERPRISE ITA NO.908 OF 2008 ORDER DATED 14-7-2009 AND 8. ITAT PUNE BENCH DECISION IN THE CASE OF KANBAY SOF TWARE INDIA PVT. LTD. VS. CIT (22 DTR 481) (PUNE). IN THE LAST DECISION OF ITAT PUNE BENCH, WHEREIN TH E IMPLICATION OF DHARMENDRA TEXTILE PROCESSORS (SUPRA) HAS BEEN DISC USSED IN DETAILED. THE COUNSEL ALSO SUMMARIZED THE ARGUMENTS BY STATING TH AT THE ASSESSEE-COMPANY HAD ITSELF OFFERED ADDITIONAL INCOME OF RS.10,50,00 0/- ON ADHOC BASIS, WITHOUT REFERENCE TO ANY SEIZED MATERIAL AND MUCH PRIOR TO ANY DETECTION MADE BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT P ROCEEDINGS AND PLEADED THAT CONSIDERING THESE SUBMISSIONS, THE PENALTY ORD ER SHOULD BE CANCELLED. ITA N O.2960/AHD/2009 ASSESSMEN T YEAR 2004-05. 4 6. NOW THE ASSESSEE IS IN APPEAL BEFORE US, AGAINST THE ABOVE CONFIRMATION OF PENALTY LEVIED U/S. 271(1) (C ) OF RS.3,76,690/- . 7. THE LD. DR RELIED ON THE ORDER OF THE ASSESSING OFFICER AND DID NOT STRONGLY OBJECT TO THE SAME. 8. THE AR OF THE ASSESSEE REITERATED THE SUBMISSION S MADE BEFORE THE LD. CIT (A) HEAVILY AND REQUESTED THE BENCH TO DELETE T HE PENALTY LEVIED U/S. 271(1) (C ) OF THE ACT OF RS.3,76,690/-. 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ASSESSEE FILED RETURN BY DECLARING A N ADDITIONAL INCOME OF RS.10,50,000/- VOLUNTARILY WITHOUT ANY REFERENCE TO SEIZED MATERIAL. NO OTHER ADDITION WAS SUSTAINED IN APPEAL. THE CONDUCT AND E XPLANATION OF THE ASSESSEE SEEMED TO BE BONAFIDE. FURTHER THE ASSESSING OFFIC ER HAD MADE ADDITION ON ESTIMATED SALE AND G.P. RATE. HAVING GONE THROUGH THE DETAILED SUBMISSIONS AS WELL AS THE DECISIONS RELIED UPON BY THE ASSESSE E; WE ARE OF THE CONSIDERED OPINION THAT THE PENALTY LEVIED BY THE ASSESSING OF FICER IS NOT JUSTIFIED. ACCORDINGLY THE SAME IS DELETED. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSE E IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 16 - 3 - 2 012. SD/- SD/- (G.C.GUPTA) (T. R. MEENA) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. S.A.PATKI. ITA N O.2960/AHD/2009 ASSESSMEN T YEAR 2004-05. 5 COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS)-I, AHMEDABAD. 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD. 1.DATE OF DICTATION 5 - 3 -2012 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 6 / 3 / 2012 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S 16 -3 -2012. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 16 - 3 -2012 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 16 - 3 -2012 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 1 6 - 3 -2012. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..