The ITO, Ward-9(2), Ahmedabad V. M/s. Amar Corporation, Ahmedabad

ITA 363/AHD/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 51014 (ITAT-AHMEDABAD)
• Duration Of Justice: 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 16-12-2011
• Assessment Year: 1986-1987
• Appeal Filed On: 10-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Corroborative evidences

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD , . .!'#$, % & BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ./ I.T.A. NO.363/AHD/2011 ( ( ) ( ) ( ) ( ) / / / / ASSESSMENT YEAR : 1986-87) THE INCOME TAX OFFICER WARD-9(2) AHMEDABAD ( ( ( ( / VS. M/S.AMAR CORPORATION 61, UGANDA SOCIETY MEMNAGAR, AHMEDABAD * % ./+, ./ PAN/GIR NO. :31-068-FZ-1419 ( *- / // / APPELLANT ) .. ( ./*- / RESPONDENT ) *- 0 / APPELLANT BY : SHRI SAMIR TEKRIWAL, SR. DR ./*- 1 0 / RESPONDENT BY : -NONE- (2 1 3% / / / / DATE OF HEARING : 16/12/2011 4') 1 3% / DATE OF PRONOUNCEMENT : 21/12/2011 5 / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL AT THE BEHEST OF THE REVENUE WH ICH HAS EMANATED FROM THE ORDER OF LEARNED CIT(APPEALS)-XV, AHMEDABAD DATED 8.8.2008 AND THE ONLY ISSUE IS IN RESPECT OF DELETION OF PENALTY LEVIED U/S.271(1)(C) OF THE I.T.ACT OF RS.2,10,230/ -. 2. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING PENALTY ORDER PASSED U/S.271(1)(C) OF THE I.T. ACT, 1961 DATED 2 3/06/2008 AND THE ASSESSMENT ORDER PASSED U/S.143(3) R.W.S.254 OF THE I.T.ACT WERE THAT IN RESPECT OF AN ADDITION U/S.68 OF THE I.T.ACT OF RS. 8,82,359/- AND IN ITA NO.363/AHD/ 2011 ITO VS. M/S.AMAR CORPORATION ASST.YEAR 1986-87 - 2 - RESPECT OF AN ANOTHER ADDITION PERTAINING TO CONST RUCTION RECEIPTS OF RS.3,37,968/-, THE MATTER WAS RESTORED BACK BY THE RESPECTED TRIBUNAL VIDE AN ORDER BEARING ITA NOS.416 & 417/AHD/2000 DA TED 07/07/2006. CONSEQUENCE THEREUPON, THE ASSESSING OFFICER MADE CERTAIN QUERIES AND AN ADDITION U/S.68 OF THE I.T.ACT OF RS.8,82,359/- WAS ASSESSED AGAIN. THEREAFTER, PENALTY PROCEEDINGS WERE FINALIZED AND THE IMPUGNED PENALTY OF RS.2,10,230/- WAS IMPOSED. THE SAID IMPOSITION OF PENALTY WAS CHALLENGED BEFORE LEARNED CIT(APPEALS) WHO HAS GIVE N A VERDICT IN FAVOUR OF THE ASSESSEE AS FOLLOWS:- IN RESPONSE TO THE NOTICES SERVED BY THIS OFFICE N O ONE APPEARED, HOWEVER IT IS SEEN AGAINST ASSESSMENT ORDER DATED 2 7.12.2007 PASSED U/S.143(3) R.W.S. 254 BY THE AO WITH RESPEC T TO WHICH THE PENALTY HAS BEEN IMPOSED WHICH HAS BEEN DISPUTED IN THE PRESENT APPEAL, THE ADDITION MADE IN THAT ASSESSMENT ORDER U/S.68 HAS BEEN DELETED BY CIT(A) XV VIDE ORDER PASSED ON 10.7.2009 . THE AO HAS NOT DISCUSSED ANY REASONS FOR IMPOSING THE PENA LTY BUT FOR STATING THAT THE APPEAL AGAINST THE ASSESSMENT ORDE R WAS FILED LATE AND IT IS NOT KNOWN WHETHER THE DELAY HAD BEEN COND ONED BY THE CIT(A). ON PERUSAL OF THE QUANTUM APPEAL ORDER IT IS SEEN THAT THE APPELLANT HAD FILED AN APPLICATION ALONG WITH FORM NO.35 INFORMING THAT THE FEE FOR FILING APPEAL HAD BEEN D EPOSITED ON 28.1.2008 BUT DUE TO THE PARTNERS NOT BEING AVAILAB LE THE APPEAL COULD NOT BE FILED IN TIME. THE DELAY IN FILING TH E APPEAL WAS OF THREE MONTHS. THIS DELAY THE RECORD SHOWS HAD BEEN CONDONED ON THE APPLICATION ITSELF BY THE CIT(A) AND THE APPEAL WAS DECIDED VIDE ORDER DATED 10.7.2009 DELETING THE ADDITION. IN THIS BACKGROUND AS THE QUANTUM ADDITION ITSELF HAS BEEN DELETED AND THE AO HAS NOT BROUGHT ANY FRESH FACTS ON RECORD J USTIFYING THE PENALTY IMPOSED. IN THE INTEREST OF JUSTICE THE AO IS DIRECTED TO DELETE THE PENALTY IMPOSED. ITA NO.363/AHD/ 2011 ITO VS. M/S.AMAR CORPORATION ASST.YEAR 1986-87 - 3 - 3. ON THE DATE OF HEARING, NO ONE HAS APPEARED FROM THE SIDE OF THE RESPONDENT-ASSESSEE. FROM THE SIDE OF THE REVENUE, LD.SR.DR MR. SAMIR TEKRIWAL APPEARED AND PLACED RELIANCE ON THE PENALT Y ORDER. 4. ON CAREFUL PERUSAL OF THE ORDERS OF THE AUTHORIT IES BELOW, WE HAVE FOUND THAT THE ASSESSEE HAS OFFERED AN EXPLANATION AND STATED THAT THERE WAS A DIFFERENCE OF THE SAID AMOUNT WHICH WAS APPEA RING IN THE NAMES OF THE MEMBERS WHO HAVE LEFT THE MEMBERSHIP OF THE SOC IETY. BEFORE THE ASSESSING OFFICER, LIST OF THOSE MEMBERS WERE ALLEG ED TO HAVE BEEN FURNISHED. THE REVENUE AUTHORITIES STAND WAS THAT THE ASSESSEE SHOULD HAVE PRODUCED THE RECEIPTS IN RESPECT OF THE COLLEC TION MADE FROM THE MEMBERS AND ALSO FURNISHED THE RECEIPTS WHEN REFUND S WERE GIVEN TO THE MEMBERS. THE REVENUE WAS OF THE VIEW THAT THE IMPU GNED CANCELLATION SHOULD BEAR THE SIGNATURES OF THE RESPECTIVE MEMBER S. THE ASSESSEES CLAIM, ON THE OTHER HAND, ASSESSEES SUBMISSION WAS THAT HAND-WRITTEN SUBMISSIONS AND SUPPORTING EVIDENCES WERE FILED AND IT WAS NOTHING BUT A DIFFERENCE IN THE ACCOUNT APPEARING IN THE COLLECTI ON LISTS OF THE MEMBERS OF THE SOCIETY, THEREFORE NO ADDITION SHOULD HAVE B EEN MADE. IN SHORT, THE EXPLANATION OF THE ASSESSEE WAS NOT APPRECIATED AND DURING QUANTUM PROCEEDINGS THE ADDITION WAS CONFIRMED. HOWEVER, W E ARE RIGHT NOW HEARING PENALTY PROCEEDINGS AND THE ACCEPTED POSITI ON OF LAW IS THAT THE PENALTY PROCEEDINGS HAVE BEEN REGARDED UNDER LAW AS AN INDEPENDENT PROCEEDINGS. THEREFORE, ALTHOUGH IT IS CORRECT THA T THE PROCEEDINGS FOR IMPOSITION OF PENALTY EMANATES FROM THE PROCEEDINGS OF ASSESSMENT BUT THOSE FINDINGS ARE NOT CONCLUSIVE WHILE DEALING THE CORRECTNESS OF THE LEVY OF PENALTY. IN THE PRESENT CASE, THE QUESTION OF QUANTUM ADDITION ITA NO.363/AHD/ 2011 ITO VS. M/S.AMAR CORPORATION ASST.YEAR 1986-87 - 4 - WAS ADMITTEDLY HAD A CHEQUERED PAST. ON GOING THRO UGH THE PAST HISTORY, THOUGH IT IS CORRECT THAT THE ASSESSEE WAS UNABLE T O PROVE ITS STAND UP TO THE HILT BUT IT IS ALSO EVIDENT THAT THE REVENUE HA S NOT PLACED ANY MATERIAL TO DISPROVE THE SAID EXPLANATION OR GATHERED ANY EV IDENCE TO ESTABLISH THAT THE SAID EXPLANATION WAS ALTOGETHER FALSE. ON THAT POINT THE ASSESSING OFFICER WAS SILENT WHILE LEVYING THIS PENALTY AND S IMPLY VIDE PARAGRAPH NO.4 HAS STATED THAT THE REQUEST TO KEEP THE PENALT Y PROCEEDINGS IN ABEYANCE NOT ENTERTAINED AND ULTIMATELY THE PENALTY WAS LEVIED. RATHER THE FIRST APPELLATE AUTHORITY HAS REFERRED A DECIS ION OF THE FIRST APPELLATE AUTHORITY DATED 10.7.2009 AND MADE A REMARK THAT TH E QUANTUM ADDITION HAD BEEN DELETED. THUS, UNDER THE TOTALITY OF THE CIRCUMSTANCES AND IN VIEW OF THE DISCUSSION MADE HEREINABOVE, WE FIND NO FORCE IN THIS GROUND OF THE REVENUE, HENCE REJECT THE SAME. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. SD/- SD/- ( A.K. GARODIA ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEM BER AHMEDABAD; DATED 21/ 12 /2011 63..(, .(../ T.C. NAIR, SR. PS ITA NO.363/AHD/ 2011 ITO VS. M/S.AMAR CORPORATION ASST.YEAR 1986-87 - 5 - 5 1 .7 8 7) 5 1 .7 8 7) 5 1 .7 8 7) 5 1 .7 8 7)/ COPY OF THE ORDER FORWARDED TO : 1. *- / THE APPELLANT 2. ./*- / THE RESPONDENT. 3. 9 / CONCERNED CIT 4. 9() / THE CIT(A)-XV, AHMEDABAD 5. 7 >> >/ // / + + + + ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION..19.12.2011 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 19.12.2011 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S21.12.2011 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 21.12.2011 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