A.C.I.T., Circle-3(1), Gwalior V. Sh. Vinod Kumar Rathore, Guna

ITA 340/AGR/2013

• Counselvise Citation: 34020314 RSA 2013
• Duration Of Justice: 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 10-02-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 01-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ATHESHAM ANSARI
• Assessee Lawyers: RAJENDRA SHARMA
• Keywords: Rule of consistency
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI PRAMOD KUMAR, ACCOUNTANT MEMB ER ITA NO.340/AGRA/2013 ASST. YEAR :2007-08 A.C.I.T., CIRCLE 3(1), VS. SH. VINOD KUMAR RATHOR E CONTRACTOR(AOP), GWALIOR. A.B. ROAD, LAXMI GANJ, GUNA (M.P.) (PAN : AAFFK 6124 L) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ATHESHAM ANSARI, JR. DR RESPONDENT BY` : SHRI RAJENDRA SHARMA, ADVOCATE DATE OF HEARING : 10.02.2014 DATE OF PRONOUNCEMENT : 14.02.2014 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A), GWALIOR DATED 29.08.2013 FOR THE ASSESSMENT YEAR 20 07-08, CHALLENGING THE CANCELLATION OF PENALTY U/S. 271(1)(C) OF THE IT AC T. 2. THE AO WHILE COMPLETING THE ASSESSMENT MADE DISA LLOWANCE U/S. 40(A)(IA) OF THE IT ACT BECAUSE THE ASSESSEE HAD NOT DEDUCTED THE TAX OR AFTER DEDUCTING DID NOT DEPOSIT THE TDS WITHIN THE TIME ALLOWED AND ACC ORDINGLY, THE ADDITION OF RS.14,70,000/- WAS MADE. PENALTY PROCEEDINGS WERE I NITIATED FOR THE SAME. THE ASSESSEE SUBMITTED AT THE PENALTY STAGE THAT THE AS SESSEE HAD DEDUCTED TDS BUT DEPOSITED AFTER THE END OF THE FINANCIAL YEAR BECAU SE OF THE WRONG INTERPRETATION OF ITA NO. 340/AGRA/2013 2 PROVISIONS OF THE IT ACT AND THERE IS NO LOSS TO TH E REVENUE. THE AO, HOWEVER, LEVIED PENALTY U/S. 271(1)(C) OF THE IT ACT FOR FUR NISHING INACCURATE PARTICULARS OF INCOME AND CONCEALMENT OF INCOME. THE ASSESSEE REIT ERATED THE SAME FACTS BEFORE THE LD. CIT(A) AND SUBMITTED THAT ASSESSEE HAS MADE PAYMENT OF INTEREST ON FINALIZATION OF THE ACCOUNTS AND THE ASSESSEE ALSO DEPOSITED THE TDS LATER ON. THEREFORE, IT IS NOT A CASE OF LEVY OF PENALTY. THE LD. CIT(A) FOUND THAT ON THE SAME ISSUE, PENALTY WAS ALSO LEVIED IN PRECEDING ASSESSM ENT YEAR 2005-06 AND 2006-07, IN WHICH HE HAS CANCELLED THE PENALTY BECAUSE THE A SSESSEE DISCLOSED ALL THE PARTICULARS OF INCOME. THEREFORE, IT IS NOT A CASE OF FURNISHING OF INACCURATE PARTICULARS OR CONCEALMENT OF INCOME. ON MERE DISAL LOWANCE, PENALTY WAS NOT LEVIABLE. THE SAME WAS ACCORDINGLY CANCELLED AND TH E APPEAL OF THE ASSESSEE WAS ALLOWED. 3. WE HAVE HEARD THE LD. REPRESENTATIVES OF BOTH TH E PARTIES. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET SUBMITTED THAT ON THE SA ME ISSUE, ITAT, AGRA BENCH CONSIDERED THE APPEAL OF THE ASSESSEE IN ITA NO. 13 8/AGRA/2013 FOR THE ASSESSMENT YEAR 2006-07 AND VIDE ORDER DATED 26.07.2013 DEPART MENTAL APPEAL WAS DISMISSED BY FOLLOWING THE EARLIER ORDER. COPY OF THE ORDER I S PLACED ON RECORD, IN WHICH IN PARA 4 & 4.1, THE TRIBUNAL HELD AS UNDER : 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL ON RECORD. WE HAVE DIRECTED THE BENCH CLERK, SHRI D.D. BHARDWAJ ATTACHED TO THE TRIBUNAL TO VERIFY FROM RE CORD IF DEPARTMENT PREFERRED ANY APPEAL FOR PRECEDING ASSESSMENT YEAR 2005-06 AGAINST THE ORDER OF LD. CIT(A) DATED 27.10.2009. HE HAS IN TIMATED THAT THE ITA NO. 340/AGRA/2013 3 DEPARTMENT HAS FILED THE APPEAL BEFORE THE TRIBUNAL IN ITA NO. 04/AGRA/2010 FOR THE ASSESSMENT 2005-06 AND THE TRI BUNAL HAS DISMISSED THE DEPARTMENTAL APPEAL VIDE ORDER DATED 18.04.2011. COPY OF THIS ORDER IS PLACED ON RECORD. 4.1 IN VIEW OF THE ABOVE, WE DO NOT FIND ANY MERIT IN THE DEPARTMENTAL APPEAL. THE LD. CIT(A) CANCELLED THE P ENALTY FOLLOWING THE ORDER OF HIS PREDECESSOR FOR THE ASSESSMENT YEA R 2005-06 DATED 27.10.2009 IN WHICH ON THE SAME DISALLOWANCE U/S. 4 0(A)(IA), PENALTY WAS CANCELLED. THE DEPARTMENTAL APPEAL BEFORE THE T RIBUNAL FOR PRECEDING ASSESSMENT YEAR 2005-06 HAS ALREADY BEEN DISMISSED AS NOTED ABOVE. THEREFORE, FOLLOWING THE ORDER OF PREC EDING ASSESSMENT YEAR, WE DISMISS THE DEPARTMENTAL APPEAL BECAUSE TH E RULE OF CONSISTENCY REQUIRES THAT THE SAME ORDER ON IDENTIC AL FACTS SHALL HAVE TO BE FOLLOWED. THE DEPARTMENTAL APPEAL FAILS AND I S DISMISSED. 4. CONSIDERING THE ABOVE, IT IS CLEAR THAT THE ISSU E IS COVERED IN FAVOUR OF THE ASSESSEE BY EARLIER ORDER OF THE TRIBUNAL IN EARLIE R YEAR. THEREFORE, FOLLOWING THE SAME ORDER, THE DEPARTMENTAL APPEAL IS DISMISSED. 5. IN THE RESULT, THE DEPARTMENTAL APPEAL IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (PRAMOD KUMAR) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY