The ITO, Ward-6(1), Ahmedabad V. M/s. Vijay Trading Co., Ahmedabad

ITA 3435/AHD/2009

• Counselvise Citation: 343520514 RSA 2009
• Duration Of Justice: 1 year(s) 10 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 18-11-2011
• Assessment Year: 1992-1993
• Appeal Filed On: 30-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, AHMEDABAD BEFORE SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO.3435 / AHD/2009 (ASSESSMENT YEAR 1992-93) ITO, WARD 6(1), AHMEDABAD VS. M/S. VIJAY TRADING CO., DANA BAZAR AT DHOLKA, PAN/GIR NO. : AADFV6407A (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI VINOD TANWANI, DR RESPONDENT BY: NONE DATE OF HEARING: 18.11.2011 DATE OF PRONOUNCEMENT: 25.11.2011 O R D E R PER SHRI A. K. GARODIA, AM:- THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDE R OF LD. CIT(A) XI, AHMEDABAD DATED 11.11.2009 FOR THE ASSESSMENT Y EAR 1992-93. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: THE LD. COMMISSIONER OF INCOME TAX, (A) -XI, AHMED ABAD HAS ERRED IN LAW AND ON FACTS IN CANCELLING THE PENALTY LEVIED OF RS.2,95,851/~ UNDER SECTION 2 71 (L)(C) OF THE LT. ACT.. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX (A) -XI, AHMEDABAD OUGHT TO HAVE UPHE LD THE ORDER OF THE ASSESSING OFFICER. IT IS THEREFORE PRAYED THAT THE ORDER OF THE LD. CO MMISSIONER OF INCOME TAX (A) - XI, AHMEDABAD MAY BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE IN SPITE OF THE NOTICE WHICH HAS BEEN DULY SERVED ON THE ASSESSEE AS PER A CKNOWLEDGEMENT I.T.A.NO. 3435 /AHD/2009 2 AVAILABLE ON RECORD. HOWEVER, WRITTEN SUBMISSIONS OF THE ASSESSEE DATED 07.09.2011 IS AVAILABLE ON RECORD AND HENCE, WE PRO CEED TO DECIDE THIS APPEAL OF THE REVENUE AFTER CONSIDERING THE WRITTEN SUBMISSION OF THE ASSESSEE AND AFTER HEARING THE LD. D.R. OF THE REVE NUE. 3. LD. D.R. OF THE REVENUE SUPPORTED THE PENALTY OR DER. 4. IN THE WRITTEN SUBMISSION THE ASSESSEE HAS MAINL Y SUPPORTED THE ORDER OF LD. CIT(A) AND RELIANCE HAS BEEN PLACED BY THE ASSESSEE ON THREE JUDGMENTS OF HONBLE GUJARAT HIGH COURT AND ONE JUD GEMENT OF HONBLE APEX COURT AS PER DETAILS BELOW: A) LALLUBHAI JOGIBHAI PATEL 261 ITR 217 B) NAVJIVAN OIL MILLS VS CIT 252 ITR 417 C) NATIONAL TEXTILES VS CIT 249 ITR 125 D) HINDUSTAN STEEL LTD. VS STATE OF ORISSA (1972) 8 3 ITR 26 (S.C.) 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW. WE FIND THAT THE LD. CIT(A) HAS REPRODUCED THE RELEVANT POR TION OF THE TRIBUNAL ORDER IN QUANTUM PROCEEDINGS OF THE ASSESSEES CASE AS PER WHICH IT IS HELD BY THE TRIBUNAL THAT THE AMOUNT IN QUESTION OF RS.15.62 LACS SHOULD BE DIVIDED IN 6 ASSESSMENT YEARS FROM 1987-88 TO 19 92-93 AS AGAINST DIVISION IN THREE ASSESSMENT YEARS DONE BY THE A.O. I.E. ASSESSMENT YEAR 1990-91 TO 1992-93. IT IS ALSO OBSERVED BY THE TRI BUNAL IN QUANTUM PROCEEDINGS THAT WHEN THE AMOUNT IS DIVIDED IN 6 YE ARS, THE ADDITION TO BE MADE COMES TO RS.2,60,333/- BUT AFTER CONSIDERING T HE FACTS & CIRCUMSTANCES OF THIS CASE, AND CONSIDERING THE PLE A OF THE ASSESSEE THAT REASONABLE ADDITION OF RS.2 LACS IN EACH OF THE ASS ESSMENT YEAR BE MADE ON AGREED BASIS, THE TRIBUNAL HAS DIRECTED THE A.O. TO MAKE ADDITION OF RS.2 LACS IN EACH ASSESSMENT YEAR. IN THE PRESENT CASE, THE A.O. HAS IMPOSED PENALTY ON THE ADDITION ORIGINALLY MADE BY HIM OF RS.5,20,700/-, WHICH HAS BEEN REDUCED BY THE TRIBUNAL IN QUANTUM P ROCEEDINGS TO RS.2 I.T.A.NO. 3435 /AHD/2009 3 LACS AND HENCE, FOR THE BALANCE AMOUNT OF ADDITION, NO PENALTY SURVIVES. EVEN FOR THE ADDITION OF RS.2 LACS, WE FEEL THAT SU CH ADDITION IS ON ESTIMATE BASIS ONLY AND NO MATERIAL HAS BEEN BROUGH T ON RECORD BY THE REVENUE REGARDING ANY CONCEALMENT OR SUBMISSION OF INACCURATE PARTICULARS OF INCOME, AND HENCE, NO PENALTY IS JUS TIFIED EVEN FOR THIS ESTIMATED ADDITION OF RS.2 LACS UPHELD BY THE TRIBU NAL IN QUANTUM PROCEEDINGS. WE, THEREFORE, DECLINE TO INTERFERE I N THE ORDER OF LD. CIT(A). 6. IN THE RESULT, APPEAL OF THE REVENUE STANDS DISM ISSED. 7. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (MUKUL KUMAR SHRAWAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 18/11 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 21/11. OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 22/11 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 25/11 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.25/11 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 25/11/2011 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. ..