M/s. Vaishali Electricals, Baroda V. The Dy.CIT.,Circle-2(2), Baroda

ITA 3243/AHD/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62942 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 19-07-2012
• Assessment Year: 2001-2002
• Appeal Filed On: 23-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV SRDR
• Assessee Lawyers: J P SHAH SRAR
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE SHRI, A.K.GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.3243/AHD/2011 ASSESSMENT YEAR:2001-02 VAISHALI ELECTRICALS 115/B, RADHA KRISHNA FLATS, NR. AKOTA GARDEN, AKOTA, BARODA [ PAN NO.AABFV 1414C ] V/S . DY. COMMISSIONER OF INCOME-TAX. OF INCOME TAX, CIRCLE-2(2), BARODA / APPELLANT .. / RESPONDENT) /BY APPELLANT SHRI J.P. SHAH, SR-AR /BY RESPONDENT SHRI B.L. YADAV, SR-DR /DATE OF HEARING 19-07-2012 /DATE OF PRONOUNCEMENT 21-09-2012 O R D E R PER KUL BHARAT, JUDICIAL MEMBER:- THIS IS ASSESSEES APPEAL IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-V, BARODA (CIT(A) FOR SHO RT) DATED 17-10-2011 FOR THE ASSESSMENT YEAR (AY) 2001-02. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF ITS APPEAL:- 1.0 ON THE FACTS AND IN THE CIRCUMSTANCES OF YOUR APPELLANTS CASE AND IN LAW, THE LD. CIT(APPEALS) HAS ERRED IN CONFIRMIN G PENALTY LEVIED BY THE LD. A.O. U/S. 271(1) OF THE ACT ON BOTH THE GROUND S OF FURNISHING OF INACCURATE PARTICULARS OF INCOME AND CONCEALMENT OF THE PARTICULARS OF ITS INCOME. YOUR APPELLANT SUBMITS THAT THE IMPUGNED PENALTY OR DER U/S. 271(1) OF THE ACT IS BAD IN LAW AND THEREFORE PRAYS YOUR HONO UR TO KINDLY HOLD SO NOW AND DELETE THE PENALTY. ITA NO.3243/AHD/2011 A.Y. 2001-02 VAISHALI ELECTRICALS V. DCIT CIR-2(2) BRD PAGE 2 2. THE ASSESSEE FILED ITS RETURN OF INCOME DECLARIN G OF RS.1,00,710/- AND SAME WAS PROCESSED U/S 143(3) OF THE INCOME-TAX ACT , 1961 (HEREINAFTER REFERRED TO AS THE ACT) ACCEPTING THE TOTAL INCOM E AS RETURNED BY THE ASSESSEE. THEREAFTER A NOTICE U/S. 148 OF THE ACT W AS ISSUED TO THE ASSESSEE CALLING UPON TO FILE RETURN OF INCOME FOR THE ASSES SMENT UNDER CONSIDERATION. IN RESPONSE THERETO, THE LD. AR OF THE ASSESSEE SUBMIT TED THAT THE RETURN WAS FILED ON 28-09-2001 DECLARING TOTAL INCOME OF RS.1, 00,710/- MAY PLEASE BE TREATED AS RETURN FILED U/S. 148 OF THE ACT AND ASS ESSMENT U/S. 143(3) R.W.S. 147 OF THE ACT WAS COMPLETED THEREBY THE TOTAL INCO ME OF THE ASSESSEE WAS ASSESSED AT RS.41,12,010/-. THE ASSESSING OFFICER ( AO) ALSO INITIATED PENALTY PROCEEDINGS SEPARATELY. SUBSEQUENTLY, A PENALTY ORD ER WAS PASSED WHEREBY THE PENALTY OF RS.6,56,100/- WAS IMPOSED. AGAINST T HIS ORDER, ASSESSEE FILED APPEAL BEFORE LD. CIT(A) WHO AFTER CONSIDERING THE SUBMISSION OF ASSESSEE DISMISSED THE APPEAL OF ASSESSEE. 3. THE ASSESSEE NOW FILED SECOND APPEAL BEFORE US. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE PENALTY COULD NOT HAVE BEEN SUSTAINED IN VIEW OF THE FACT THAT THERE IS NO CLEAR FINDING BY THE ASSE SSING OFFICER AS TO WHETHER THERE IS CONCEALMENT OF INCOME BY THE ASSESSEE OR W HETHER ANY INACCURATE PARTICULARS OF INCOME HAD BEEN FURNISHED BY THE ASS ESSEE. HE FURTHER SUBMITTED THAT IN ABSENCE OF CLEAR-CUT FINDING BY T HE AO THE PENALTY ORDER PASSED BY HIM IS LIABLE TO BE STRUCK DOWN. IN SUPPO RT THIS CONTENTION, HE RELIED UPON THE JUDGMENT OF THE HONBLE JURISDICTIONAL HIG H COURT RENDERED IN THE CASE OF NEW SORATHIA ENGINEERING CO. V. CIT (2006) 282 ITR 642 (GUJ). HE SUBMITTED EVEN OTHERWISE ALSO THE PENALTY IS LEVIAB LE ON THE AMOUNT OF RS.4,76,350/- BEING ADDITION MADE AS MARGIN PROFIT. ON THE CONTRARY, LD. SR- DR STRONGLY SUPPORTED THE ORDERS PASSED BY AUTHORIT IES BELOW. HE SUBMITTED THAT LD. CIT(A) HAS CONSIDERED THE SUBMISSION OF TH E ASSESSEE AND DID NOT FIND ANY MERIT INTO THE SAME. ITA NO.3243/AHD/2011 A.Y. 2001-02 VAISHALI ELECTRICALS V. DCIT CIR-2(2) BRD PAGE 3 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD AND CASE LAW CITED BY LD. AR, WE FIND THA T UNDER THE IDENTICAL FACTS AND CIRCUMSTANCES IN RESPECT OF A.Y 2002-03, THE HO NBLE CO-ORDINATE BENCH IN ASSESSEES OWN CASE IN ITA NO.988/AHD/2008 DATED 21-04-2011 HAS FOLLOWED THE DECISIONS OF HONBLE JURISDICTIONAL HI GH COURT RENDERED IN THE CASE OF NEW SORATHIA ENGINEERING CO. (SUPRA) AND CAME TO THE CONCLUSION THAT THE LEVY OF PENALTY WAS BAD IN LAW THEREFORE, NOT SUSTAINABLE. IN THIS VIEW OF THE MATTER, FOLLOWING THE ORDER OF HONBLE CO-OR DINATE BENCH IN ASSESSEES OWN CASE (SUPRA), THIS GROUND OF ASSESSEES APPEAL IS ALLOWED. THE ASSESSING OFFICER IS DIRECTED TO DELETE THE PEN ALTY. 5. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLO WED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- (A.K.GARODIA) (KUL BHARAT) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, *DKP !- 21/09/2012 '() * +, +, +, +, --. --. --. --. /. /. /. /. / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. ) -2 + + 3 / CONCERNED CIT 4. + + 3- / CIT (A) 5. .67 ---2, + -2 , '() / DR, ITAT, AHMEDABAD 6. 7:; <= / GUARD FILE. BY ORDER/ +, , /TRUE COPY/ >/' ? + -2 , '() * STRENGTHEN PREPARATION & DELIVERY O F ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 17/09 2) DIRECT DICTATION BY MEMBER STRAIGHT ON NO ITA NO.3243/AHD/2011 A.Y. 2001-02 VAISHALI ELECTRICALS V. DCIT CIR-2(2) BRD PAGE 4 COMPUTER/LAPTOP/DRAGON DICTATE 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 17/09 4) DATE OF CORRECTION 18/09 5) DATE OF FURTHER CORRECTION 6) DATE OF INITIAL SIGN BY MEMBERS 19/09 7) ORDER UPLOADED ON 21/09 8) ORIGINAL DICTATION PAD-PART HAS BEEN ENCLOSED IN THE FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 21/09