M/s. Bhadiyadra Brothers, Surat V. The Income Tax Officer, Ward-9(1), Surat

ITA 3338/AHD/2014

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 2100 (ITAT-SURAT)
• Duration Of Justice: 3 year(s) 4 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 12-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R P RASTOGI
• Keywords: Question of law
• Section: 271(1)(c)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT , , BEFORE SHRI C.M.GARG, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER . / ITA NO.3338/AHD/2014/SRT / ASSESSMENT YEAR: 2005-06 M/S. BHADIYADRA BROTHERS, 9-10, SAVANI DIAMOND ESTATE, BEH. GEETANJALI CINEMA, VARACHHA ROAD, SURAT 395 006. [PAN: AAGFM 2845R] VS. INCOME TAX OFFICER, WARD-9(1), SURAT. ( / APPELLANT) ( !' /RESPONDENT) / ASSESSEE BY : SHRI MANISH J. SHAH, ADVOCATE /REVENUE BY : SHRI R.P. RASTOGI, SR. D.R /DATE OF HEARING : 19-04-2018 /DATE OF PRONOUNCEMENT : 25-04-2018 / ORDER PER C.M.GARG, JUDICIAL MEMBER: THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-V, SURAT (CIT (A) FOR SHORT) DATED 24.09.2014 FOR THE ASSESSMENT YEAR (A.Y) 2005-06 PA SSED UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (FOR SHORT T HE ACT). 2. THE GROUNDS RAISED BY THE ASSESSEE READ AS FOLLO WS: 1. THE CIT(APPEALS) HAS ERRED IN CONFIRMING PENALTY U/S. 271(1)(C) FOR RS. 2,64,154/- OF I.T. ACT, 1961. 2 ITA NO.3338/AHD/2014/SRT (A.Y: 2005-06) M/S. BHADIYADRA BROTHERS 1.1 THE CIT(APPEALS) HAS ERRED IN CONFIRMING THE PE NALTY INSPITE OF THE FACT THAT NO CHARGE ON PENALTY WAS PROPERLY AND LEGALLY CREATED. IT IS SUBMITTED THAT PENALTY ORDER ITSELF IS BAD IN LAW. 3. WE HAVE HEARD THE ARGUMENTS OF BOTH SIDES AND CA REFULLY PERUSED THE RELEVANT MATERIAL PLACED ON THE RECORD OF THE TRIBU NAL. THE LD. ASSESSEES REPRESENTATIVE (AR) SUBMITTED THAT IN PRECEDING ASS ESSMENT ORDER 2004-05 PENALTY ON THE SAME ISSUE WAS DELETED BY THE LD. CI T(A) AND APPEAL OF THE REVENUE HAS BEEN DISMISSED BY THE ITAT, AHMEDABAD D BENCH ORDER DATED 23.07.2015. THE LD. AR DREW OUR ATTENTION TO WARDS PARA 5 OF THE SAID TRIBUNAL ORDER AND SUBMITTED THAT SINCE HON'BLE JUR ISDICTIONAL HIGH COURT ADMITTED QUESTION OF LAW IN ITA NO.573/2011 (ASSESS EES APPEAL BEFORE HIGH COURT). THEREFORE, IT WAS HELD THAT PENALTY U/S. 2 71(1)(C) OF THE ACT CANNOT BE ISSUED ON DEBATABLE ISSUE. THE LD. AR FURTHER SUBMI TTED THAT APPEAL OF ASSESSEE FOR AY 2005-06 WAS ALLOWED FOR STATISTICAL PURPOSE RESTORING THE ISSUE TO THE FILE OF THE A.O FOR NECESSARY VERIFICA TION AND IN ASSESSEES APPEAL BEFORE HON'BLE HIGH COURT I.E., IN ITA NO.88 7/2012 QUESTION OF LAW HAS BEEN FRAMED AND THIS TAX APPEAL HAS BEEN CLUBBE D WITH EARLIER TAX APPEAL NO.573/2011 FOR AY 2004-05 HENCE, THE ISSUE HAS BECOME DEBATABLE AND PENALTY U/S. 271(1)(C) OF THE ACT CANNOT BE LEV IED ON THE ASSESSEE. 4. REPLYING TO THE ABOVE, THE LD. DEPARTMENTAL REPR ESENTATIVE (DR) SUBMITTED THAT STRONGLY SUPPORTED THE PENALTY ORDER AS WELL AS FIRST APPELLATE ORDER. HOWEVER, HE COULD NOT CONTROVERT THE FACTUM THAT THE ITAT, AHMEDABAD BY ORDER DATED 23.07.2015 FOR AY 2004-05 DISMISSING THE APPEAL OF THE REVENUE HAS UPHELD THE ORDER OF THE L D. CIT(A), WHEREIN 3 ITA NO.3338/AHD/2014/SRT (A.Y: 2005-06) M/S. BHADIYADRA BROTHERS PENALTY WAS DELETED. WE HAVE NO REASON TO TAKE A D IFFERENT VIEW ON THE ISSUE OF IMPOSING PENALTY. THEREFORE, RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL FOR AY 2004-05 DATED 23.07.2015 (SUPRA) WE HOLD THAT PENALTY IMPOSED BY THE AO AND UPHELD BY THE LD. CIT(A) FOR AY 2005-06 U/S. 271(1)(C) OF THE ACT IS NOT VALID AND SUSTAINABLE. HENCE, WE DIRECT THE AO TO CANCEL THE SAME. ACCORDINGLY, GROUNDS OF THE ASSES SEE ARE ALLOWED. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 2 5 TH APRIL, 2018. / SURAT ; DATED : 25 TH APRIL, 2018 EDN ! $ / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. # ( ) / THE CIT (A) - V, SURAT; 4. CCIT, SURAT; 5. , , / DR, ITAT, SURAT; 6. / GUARD FILE. / BY ORDER, // TRUE COPY // ) / ASSISTANT REGISTRAR , / ITAT, SURAT SD/ - SD/ - ( ) ( O.P.MEENA ) / ACCOUNTANT MEMBER ( ) (C.M.GARG) /JUDICIAL MEMBER