Jyotindra Ochhavlal Shah(Deceased), Ahmedabad V. Income Tax Officer, Ward-2(2)(2), Ahmedabad

ITA 3405/AHD/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 6314 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: misc
• Appeal Filed On: 08-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: HIMANSHU C SHAH
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH AHMEDABAD BEFORE, SHRI PRAMOD KUMAR , ACCOUNTANT MEMBER AND SHRI S. S. GODARA, JUDICIAL MEMBER ITA NO. 3405/AHD/2015 (ASSESSMENT YEAR: BLOCK PE RIOD: 01.04.95 TO 27.09.01) JYOTINDRA OCHHAVLAL SHAH (DECEASED), LEGAL HEIR HANSABEN J. SHAH, 31, SHANTINAGAR SOCIETY, VADAJ, ASHRAM ROAD, AHMEDABAD 380 013 APPELLAN T VS. INCOME TAX OFFICER, WARD 2(2)(2), AHMEDABAD RES PONDENT PAN: AINPS8418H /BY ASSESSEE : SHRI HIMANSHU C. SHAH, A.R. /BY REVENUE : SHRI MUDIT NAGPAL, SR. D.R /DATE OF HEARING : 10.01.2018 /DATE OF PRONOUNCEMENT : 15.01.2018 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR BLOCK PERIOD: 01.04.95 T O 27.09.01 ARISES AGAINST THE CIT(A)-10, AHMEDABADS ORDER DATED 12.10.2015 I N CASE NO. CIT(A)-10/DCIT CIR.9/93/14-15, UPHOLDING ASSESSING OFFICERS ACTIO N IMPOSING PENALTY PERTAINING TO QUANTUM DISALLOWANCES/ADDITIONS OF SALARY AND DE PRECIATION AMOUNTING TO RS.56,150/-, IN PROCEEDINGS U/S.158 BFA(2) R.W.S. 1 58 BFA(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. ITA NO. 3405/AHD/15 [JYOTINDRA O. SHAH (DECEASED) V S. ITO] BLOCK PERIOD: 01.04.95 TO 27.09.01 - 2 - 2. WE NOTICE AT THE OUTSET THAT THE INSTANT LIS EMA NATES FROM A SEARCH ACTION DATED 27.09.2001 CARRIED OUT IN M/S. NIRMA GROUP CA SES. THIS ASSESSEE WORKED AS THE PURCHASE MANAGER OF THE SAID ENTITY. HIS RE SIDENTIAL PREMISES WAS ALSO COVERED IN THE ABOVE SEARCH. THE SAID ACTION CULMI NATED IN SECTION 158BC PROCEEDINGS. THE ASSESSEE FILED HIS RETURN ON 28.1 1.2002 FOR THE ABOVE BLOCK PERIOD STATING UNDISCLOSED INCOME OF RS.61LACS. TH E ASSESSING OFFICER COMPLETED A REGULAR ASSESSMENT INTER ALIA MAKING VARIOUS ADDI TIONS INCLUDING THE TWO IN QUESTION I.E. SALARY PAID TO ACCOUNTANT AND DEPRECI ATION INVOLVING SUMS OF RS.16,000/- AND RS.40,150/-; RESPECTIVELY. HE FURT HER INITIATED THE IMPUGNED PENALTY PROCEEDINGS U/S.158BFA(2) OF THE ACT. THER E IS NO DISPUTE THAT THE CIT(A) AS WELL AS THIS TRIBUNAL CONFIRMED THE SAME IN ORDERS DATED 24.09.2004 & 23.07.2010; RESPECTIVELY. 3. WE NOW ADVERT TO THE IMPUGNED PENALTY PROCEEDING S. THE ASSESSEES CASE THEREIN WAS THAT THE SAID TWO DISALLOWANCES DID NOT AMOUNT TO CONCEALMENT OF ANY UNDISCLOSED INCOME FROM BEING ASSESSED. THE ASSESS ING OFFICER BRUSHED ASIDE THE SAME IN HIS PENALTY ORDER DATED 28.03.2011. HE STR ONGLY REITERATED THE RELEVANT QUANTUM PROCEEDINGS TO LEVY THE IMPUGNED PENALTY OF RS.98,031/- IN RESPECT OF VARIOUS ISSUES (INCLUDING THE TWO HEREINABOVE). TH E CIT(A) AFFIRMS THE SAME. 4. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL CONTENTIONS. WE NOTICE FIRST OF ALL THAT THE CIT(A) HAS NOT DISCUSS ED CORRECTNESS OF THE IMPUGNED PENALTY APPEAL QUA THE INSTANT TWO ISSUES IN PAGE 8 PARA 1 OF THE LOWER APPELLATE ORDER. LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITS THAT THE IMPUGNED PENALTY IMPOSED U/S.158BFA(2) STANDS ON AN ENTIRELY DIFFERE NT FOOTING THAN THE ONE U/S.271(1)(C) OF THE ACT. THERE CAN HARDLY BE ANY DISPUTE ABOUT THE SAID DISTINCTION. THE HONBLE JURISDICTIONAL HIGH COURT IN CIT V. BECHARBHAI P. PARMAR (2012) 341 ITR 499 (GUJ) HOLDS THAT THE IMPUGNED PE NALTY U/S. 158BFA(2) IS NOT TO BE MANDATORILY IMPOSED. WE PROCEED IN THIS LEGA L BACKDROP TO NOTICE THAT THE ASSESSEE HAD CLAIMED TO HAVE PAID SALARY TO HIS ACC OUNTANT SHRI BHARAT TRIVEDI AMOUNTING TO RS.16,000/-. HE COULD NOT PROVE ANY S ERVICES RENDERED BY THE SAID PAYEE. SAME APPEARS TO BE THE CASE REGARDING DEPRE CIATION. THE ASSESSEES CASE ITA NO. 3405/AHD/15 [JYOTINDRA O. SHAH (DECEASED) V S. ITO] BLOCK PERIOD: 01.04.95 TO 27.09.01 - 3 - WAS THAT HE HAD RETURNED UNDISCLOSED INCOME OF RS.6 1LACS AND CLAIMED CORRESPONDING DEPRECIATION IN QUESTION AS AN ADMISS IBLE DEDUCTION. WE ARE OF THE OPINION IN THESE PECULIAR FACTS THAT BOTH THE SAID TWO INSTANCES OF QUANTUM DISALLOWANCE/ADDITION WOULD NOT AMOUNT TO A CASE OF UNDISCLOSED INCOME INVITING THE IMPUGNED PENAL ACTION. WE ACCEPT ASSESSEES AR GUMENTS THEREFORE TO DELETE THE IMPUGNED PENALTY. 5. THIS ASSESSEES APPEAL IS ALLOWED. [PRONOUNCED IN THE OPEN COURT ON THIS THE 15 TH DAY OF JANUARY, 2018.] SD/- SD/- ( PRAMOD KUMAR ) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEM BER AHMEDABAD: DATED 15/01/2018 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )*+ ,--. . /0 / DR, ITAT, AHMEDABAD 1 +23 / GUARD FILE. BY ORDER / . // . /0