Abhishek Estate Limited, Surat V. The Income tax Officer, Ward-1(1), Surat

ITA 3560/AHD/2008

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 2359 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 20-01-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 27-10-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY RAI
• Assessee Lawyers: M J SHAH
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : D BENCH : AHMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA, J.M. & HON' BLE SHRI N.S. SAINI, A.M. ) I.T.A. NO. 3560/AHD./2008 ASSESSMENT YEAR : 2004-2005 ABHISHEK ESTATE LIMITED, SURAT -VS.- INCOME TAX OFFICER, WARD-1(4), SURAT (PAN : AABCA 9744 K) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI M.J. SHAH, A.R. RESPONDENT BY : SHRI SANJAY RAI, SR. D. R. O R D E R PER SHRI T.K. SHARMA, JUDICIAL MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE O RDER DATED 07.08.2008 OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-I, SURAT CONFI RMING THE PENALTY OF RS.6,36,750/- LEVIED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 FOR THE ASSESSMENT YEAR 2004-05. 2. AT THE TIME OF HEARING BEFORE US, BOTH SIDES CON CEDED THAT IN QUANTUM APPEAL, ITAT, D BENCH, AHMEDABAD VIDE ORDER DATED 09.07.2010 IN ITA NO. 1585/AHD/2007 FOR THE ASSESSMENT YEAR 2004-05 DELETED THE ENTIRE ADDITION AMOUNTING TO RS.17,74,913/-, WHICH WAS MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED CASH CR EDIT UNDER SECTION 68 OF THE INCOME TAX ACT, 1961, THEREFORE, PENALTY CANNOT SURVIVE. THE REASON ING GIVEN BY ITAT IN PARA 4 OF ITS ORDER DATED 09.07.2010 READS AS UNDER :- 4. WE HAVE CAREFULLY CONSIDERED ARGUMENTS OF BOTH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. IN OUR OPINI ON, SECTION 68 CAN BE APPLIED IF THERE IS AN ACTUAL RECEIPT OF MONEY BY T HE ASSESSEE, WHETHER BY CASH OR CHEQUE, DURING THE ACCOUNTING YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION. ADMITTEDLY, DURING THE AC COUNTING YEAR, RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION , NO AMOUNT WAS RECEIVED FROM BJW. IN FACT, THE TRANSACTION BETWE EN THE ASSESSEE AND BJW WAS DURING THE FINANCIAL YEAR 2001-2002. EVEN IN THAT YEAR FIRST THE AMOUNT WAS ADVANCED BY THE ASSESSEE AND THEN TH ERE WAS REPAYMENT OF SUCH ADVANCES BY BJW. IF BY MISTAKE PART OF TH E REPAYMENT WAS CREDITED TO THE ACCOUNT OF SOME OTHER PARTY AND A J OURNEY ENTRY WAS MADE DURING THE ACCOUNTING YEAR RELEVANT TO ASSESSMENT Y EAR UNDER 2 ITA NO. 3560-AHD-2008 CONSIDERATION TO RECTIFY SUCH MISTAKE, IN OUR OPINI ON, SECTION 68 CANNOT BE APPLIED. WE, THEREFORE, DELETE THE ADDITION OF R S.17,74,913/- MADE BY THE A.O.. 3. SINCE THE ENTIRE ADDITION OF RS.17,74,913/- ON T HE BASIS OF WHICH PENALTY OF RS.6,36,750/- HAS BEEN DELETED IN QUANTUM APPEAL, IN SUCH CASE NO PENALTY CAN SURVIVE. THEREFORE, PENALTY OF RS.6,36,750/- IS CANCELLED. 4. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. THE ORDER WAS PRONOUNCED IN THE COURT ON 20.01.20 11 SD/- SD/- (N.S. SAINI) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 20 / 01 / 2011 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE (2) THE DEPARTMENT. 3) CIT(A.) CONCERNED, (4) CIT CONCERNED, (5) D.R. , ITAT, AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGI STRAR, ITAT, AHMEDABAD LAHA/SR.P.S.