Vimal Muljibhai Gabani, Surat V. The Income Tax Officer,Ward-9(4), Surat

ITA 3156/AHD/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6294 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 4 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 10-03-2017
• Assessment Year: 2002-2003
• Appeal Filed On: 06-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DHARMJIT YADAV
• Assessee Lawyers: R N VEPARI
• Section: 148

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL CAMP AT SURAT BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./ ITA NO.3156/AHD/2015 / ASSTT. YEAR: 2002-2003 VIMAL MULJIBHAI GABANI 7-A, TRIKAMNAGAR SOCIETY-1 LAMBE HANUMAN ROAD SURAT 395 006. PAN : ABPPG 8114 P VS. ITO, WARD-9(4) SURAT. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI R.N. VEPARI REVENUE BY : SHRI DHARMJIT YADAV, SR.DR ! / DATE OF HEARING : 10/03/2017 '#$ ! / DATE OF PRONOUNCEMENT: 03 /04/2017 %& / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST O RDER OF THE LD.CIT(A)-II, SURAT DATED 31.8.2015 PASSED FOR THE ASSESSMENT YEAR 2002-03. 2. GRIEVANCE OF THE ASSESSEE IS THAT THE LD.CIT(A) HAS ERRED IN CONFIRMING PENALTY OF RS.7,16,076/- IMPOSED BY THE AO UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961. ITA NO.3156/AHD/2015 2 3. AT THE VERY OUTSET, THE LD.COUNSEL FOR THE ASSES SEE CONTENDED THAT NOTICE UNDER SECTION 148 OF THE ACT DATED 16.9.2005 WAS SERVED UPON THE ASSESSEE ON 26.9.2005. THE AO PASSED ASSESSMEN T ORDER AND DISPUTE ULTIMATELY TRAVELLED UPTO THE TRIBUNAL IN I TA NO.491- 492/AHD/2008. THE TRIBUNAL HAS SET ASIDE THE ASSES SMENT AND RESTORED THE PROCEEDINGS TO THE FILE OF THE AO. THE AO HAS PASSED FRESH ASSESSMENT ORDER ON 28.12.2011. DISSATISFIED WITH THIS ORDER, THE ASSESSEE CARRIED IN APPEAL BEFORE THE LD.CIT(A) AND ULTIMATELY DISPUTE COME BACK TO THE TRIBUNAL IN ITA NO.936/AHD/2013. THE TRIBUNAL VIDE ORDER DATED 1.8.2016 QUASHED THE RE-ASSESSMENT ORDE R. THE TRIBUNAL HAS HELD THAT IN THE FIRST ROUND, THE AO WAS DIRECT ED TO SUPPLY REASONS TO THE ASSESSEE FOR RE-OPENING AND THEREAFTER, DECI DE THE OBJECTIONS FILED BY THE ASSESSEE. THIS PROCEDURE WAS NOT FOLL OWED BY THE AO, AND DUE TO THIS, THE TRIBUNAL QUASHED THE RE-ASSESSMENT ORDER. 4. THIS APPEAL AROSE OUT OF THE RE-ASSESSMENT ORDER PASSED IN THE SECOND ROUND OF LITIGATION. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. WE FIND THAT SUB-CLAUSE (III) OF SECTION 271(1)(C) PROVIDES MECHANISM FOR QUANTIFICATION OF PENALTY. IT CONTEMPLATES THAT THE ASSESSEE WOULD BE DIRECTED TO PAY A SUM IN ADDI TION TO TAXES, IF ANY, PAYABLE HIM, WHICH SHALL NOT BE LESS THAN, BUT WHIC H SHALL NOT EXCEED THREE TIMES THE AMOUNT OF TAX SOUGHT TO BE EVADED B Y REASON OF CONCEALMENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME. IN OTHER WORDS, THE QUANTIFICATION OF THE PENALTY IS DEPENDED UPON THE ADDITION MADE TO THE INCOME OF THE ASSESSE E. SINCE BASIS FOR VISITING THE ASSESSEE WITH PENALTY HAS BEEN EXTINGU ISHED BY QUASHING THE RE-ASSESSMENT ORDER BY THE TRIBUNAL VIDE ORDER DATED 1.8.2016 IN THE APPEAL OF THE ASSESSEE IN ITA NO.936/AHD/2013 ( SUPRA) THE ITA NO.3156/AHD/2015 3 IMPUGNED PENALTY IS NON EST IN THE PRESENT CASE, AND ACCORDINGLY APPEAL OF THE ASSESSEE IS ALLOWED. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE COURT ON 3 RD APRIL, 2017 AT AHMEDABAD. SD/- SD/- (AMARJIT SINGH) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 03/04/2017