M/s Goel Enclave, Lucknow V. Dy. CIT, Lucknow

ITA 360/LKW/2013

• Counselvise Citation: 36023714 RSA 2013
• Duration Of Justice: 1 year(s) 10 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 10-03-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 17-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O N PATHAK
• Assessee Lawyers: YOGESH AGARWAL

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO. 360 /LKW/201 3 ASSESSMENT YEAR:200 8 - 20 09 M/S GOEL ENCLAVE 13 TH KM. FAIZABAD ROAD, LUCKNOW PAN:AAGFG5748M VS. DY. C.I.T., RANGE - I, LUCKNOW (APPELLANT) (RESPONDENT) APPELLANT BY SHRI YOGESH AGARWAL, ADVOCATE RESPONDENT BY SHRI O. N. PATHAK, SR. DR DATE OF HEARING 10 /0 3 /201 5 DATE OF PRONOUNCEMENT 3 1 /0 3 /201 5 O R D E R PER A. K. GARODIA, A.M. T HIS IS ASSESSEE S APPEAL DIRECTED AGAINST THE ORDER OF LEARNED CIT (A) I LUCKNOW DATED 07 .0 3 .201 3 FOR A.Y. 200 8 20 09 . 2. THE ONLY GRIEVANCE OF THE ASSESSEE IS REGARDING CONFIRMI N G THE PENALTY OF RS. 450,000 IMPOSED BY THE A.O. U/S 271 (1) (C) OF I. T. ACT . 3 . LEARNED AR OF THE ASSESSEE SUBMITTED COPY OF CONFIRMATIONS OF ALL 7 CREDITORS ON DIRECTION OF THE TRIBUNAL. HE ALSO SUBMITTED THAT THE ASSESSEE THESE CONFIRMATIONS COULD NOT OBTAIN THESE CONFIRMATIONS EARLIER AND BECAUSE THE ACCOUNTANT WAS NOT AVAILABLE, COULD NOT RECONCILE THESE ACCOUNTS AND FOR THESE REASONS, SURRENDER WAS MADE. HE ALSO SUBMITTED THAT SINCE, NOW THE CONFIRMATIONS ARE AVAILABLE, PENALTY IS NOT JUSTIFIED. HE ALSO PLACED RELIANCE ON A JUDGMENT OF HONBLE BOMBAY HIGH COURT RENDERED IN THE CASE OF CIT VS. UPENDRA V. MITHANI, IN ITA NO. 1860 OF 2009 DATED 05.08.2009. HE SUBMITTED THAT COPY OF THIS JUDGMENT IS AVAILABLE ON PAGE 1 OF CAS E LAWS PAPER BOOK. LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDER S OF THE AUTHORITIES BELOW . 4 . WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT IN THE PRESENT CASE , THE ADDITION WAS MADE BY THE A.O. BY OBSERVING IN THE ASSESSMENT 2 ORDER THAT REG ARDING 8 CREDITORS HAVING BALANCE OF RS. 12,42,004, IT WAS SUBMITTED BY THE ASSESSEE BEFORE HIM THAT THESE ACCOUNTS NEED TO BE RECONCILED BUT THE ACCOUNTANT, WHO HAD WRITTEN THE BOOKS HAD LEFT THE ASSESSEE COMPANY AND THEREFORE, IT IS TAKING TIME TO RECONC ILE. HE ALSO OBSERVED THAT THE ASSESSEE SURRENDERED THIS AMOUNT BY STATING THAT THIS AMOUNT IS BEING SURRENDERED TO BUY PEACE WITH THE DEPARTMENT. HENCE, IT IS SEEN THAT IN THE PRESENT CASE, ADDITION WAS MADE FOR THE REASON THAT THE ASSESSEE COULD NOT PROV E THE CREDITORS AND NOT FOR THIS REASON THAT THE CLAIM OF THE ASSESSEE WAS DISPROVED. IN THE LIGHT OF THESE FACTS, WE EXAMINE THE APPLICABILITY OF THE JUDGMENT CITED BY THE LEARNED AR OF THE ASSESSEE. IN THAT CASE, IT WAS HELD BY HONBLE BOMBAY HIGH COURT THAT IF THE ASSESSEE HAS GIVEN AN EXPLANATION, WHICH IS UNPROVED BUT NOT DISPROVED, THIS CANNOT BE INFERRED THAT THE ASSESSEES CASE IS FALSE AND THEREFORE, PENALTY IS NOT JUSTIFIED. IN THE PRESENT CASE, NOW THE ASSESSEE HAS BROUGHT ON RECORD CONFIRMATIONS OF 7 PARTIES OUT OF TOTAL 8 PARTIES AND HENCE, IT IS SEEN THAT AT LEAST, IN PENALTY PROCEEDINGS, THE ASSESSEE HAS MADE OUT A CASE THAT EVEN SURRENDER OR ADDITION WAS NOT CALLED FOR. WE HAVE NOTHING TO SAY ABOUT SURRENDER AND CONSEQUENT ADDITION BUT IN TH E FACTS OF THE PRESENT CASE, PENALTY IS NOT JUSTIFIED. THEREFORE, WE DELETE THE PENALTY. 5 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED . (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 3 1 /0 3 /201 5 *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR