M/s Nand Developers, Baroda V. The Income Tax Officer, Ward- 2(2), Baroda

ITA 3063/AHD/2007

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 0187 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 23-09-2009
• Assessment Year: 2001-2002
• Appeal Filed On: 13-07-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEETA SHAH SENIOR
• Assessee Lawyers: SHRI N C AMIN
• Section: 271(1)(c); 40A(3)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'B' (BEFORE S/SHRI H L KARWA AND P K BANSAL) ITA NO.3063/AHD/2007 (ASSESSMENT YEAR: 2001-02) M/S NAND DEVELOPERS, C/O SHRI DIPAK S SHAH, SHANTI KAILASHDHAM SOCIETY, BEHIND UTKARSH PETROL PUMP, KARELIBAUG, BARODA PA NO. AADPM 3652 Q V/S THE INCOME-TAX OFFICER, WARD-2(2), AAYAKAR BHAVAN, RACE COURSE, BARODA (APPELLANT) (RESPONDENT) APPELLANT BY :- SHRI SHRI N C AMIN, AR RESPONDENT BY:- SMT. NEETA SHAH, SENIOR DR O R D E R PER P K BANSAL (ACCOUNTANT MEMBER) : THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT( A)-II, BARODA DATED 02-04-2007 BY WHICH THE CIT(A) HAS SUSTAINED THE PENALTY IMPOSED ON THE ASSESSEE AMOUNTING TO RS.1,18,686/- LEVIED U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961 [THE ACT FO R SHORT], BY THE ASSESSING OFFICER (AO). 2 BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE SU BMITTED RETURN OF INCOME OF RS.93,560/- WHILE ASSESSMENT HA S BEEN COMPLETED ON INCOME OF RS.2,19,780/- WHILE MAKING T HE ADDITION OF RS.57,824/- BEING 50% OF THE DIFFERENCE OF PROFI T ADMITTED BY THE ASSESSEE IN THE STATEMENT RECORDED U/S 131(1A) OF THE ACT AND 2 THE PROFIT DISCLOSED IN THE RETURN OF INCOME FOR TH E TWO PREVIOUS YEARS AND RS.68,490/- ON ACCOUNT OF ADDITION MADE U /S 40A(3) OF THE ACT. THE AO IMPOSED PENALTY U/S 271(1)(C) OF TH E ACT FOR NOT DISCLOSING THE TRUE INCOME BY THE ASSESSEE. THE ASS ESSEE WENT IN APPEAL BEFORE THE CIT(A). THE CIT(A) CONFIRMED THE ORDER OF THE AO. THE ADDITION MADE BY THE AO WAS CONFIRMED ULTIM ATELY BY THE TRIBUNAL. 3 WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y CONSIDERED THE SAME. IN OUR OPINION, PENALTY PROCEE DINGS AND ASSESSMENT PROCEEDINGS BOTH THE DIFFERENT. IF AN AD DITION HAS BEEN MADE IN THE ASSESSMENT, THE ASSESSEE IS NOT DE BARRED TO PROVE THAT THERE IS NO CONCEALMENT OF INCOME OR FUR NISHING OF ANY INACCURATE PARTICULARS THEREON ON THE PART OF T HE ASSESSEE. THE ADDITION HAS BEEN MADE IN RESPECT OF PROFIT ON CONSTRUCTION OF TENEMENTS AMOUNTING TO RS.57,824/- AND RS.68,490 /- ON ACCOUNT OF DISALLOWANCE U/S 40A(3). THE ASSESSEE, W E NOTED, HAD DULY SUBMITTED THE EXPLANATION DURING THE COURSE OF ASSESSMENT PROCEEDINGS THAT THE TRIAL BALANCE DOES NOT REFLECT THE TRUE STATE- OF-AFFAIRS. THE ADDITIONS ARE ALSO NOT MADE TO THE EXTENT OF STATEMENT MADE BEFORE THE DDIT. THE PENALTY HAS SI MPLY BEEN IMPOSED ON THE BASIS OF ADDITIONS / DISALLOWANCES M ADE DURING THE COURSE OF ASSESSMENT, AND THAT IS ALSO 200% OF THE TAX SOUGHT TO BE EVADED. THE EXPLANATION SUBMITTED BY THE ASSE SSEE, IN OUR OPINION, IS NOT FALSE AND THE ASSESSEE HAS DULY SUB STANTIATED THE SAME. IN VIEW OF THIS, WE ARE OF THE VIEW THAT IT I S NOT A FIT CASE WHERE PENALTY CAN BE SUSTAINED. WE ACCORDINGLY DELE TE THE PENALTY. 3 4 IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30-10-2009 SD/- SD/- (H L KARWA0 JUDICIAL MEMBER (P K BANSAL) ACCOUNTANT MEMBER DATE : 30-10-2009 COPY OF THE ORDER FORWARDED TO : 1. M/S NAND DEVELOPERS, C/O SHRI DIPAK S SHAH, SHA NTI KAILASHDHAM SOCIETY, BEHIND UTKARSH PETROL PUMP, KARELIBAUG, BARODA 2. THE INCOME-TAX OFFICER, WARD-2(2), AAYAKAR BHAVA N, RACE COURSE, BARODA 3. THE CIT CONCERNED 4. THE CIT(A)-II, BARODA 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER DY.R/AR, ITAT, AHMEDABAD