JCIT, Gwalior V. M/s Vinod Kumar Rathore, Gwalior

ITA 4/AGR/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7066 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 3 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-04-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 18-04-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 06-01-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: A K SHARMA
• Keywords: Assessment record; TDS
• Section: 271(1)(c); 143(3); 40(a)(ia)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI P.K. BANSAL, ACCOUNTANT MEMBER AND SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO.04/AGR/2010 ASST. YEAR: 2005-06 JOINT COMMISSIONER OF INCOME TAX, VS. M/S. VINOD K UMAR RATHORE, RANGE-3, GWALIOR. EXCISE CONTRACTOR, LAXMI GANJ, GUNA. (PAN : AAFFK 6124 L). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI A.K. SHARMA, JR. D.R. RESPONDENT BY : NONE ORDER PER H.S. SIDHU, J.M. : THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST TH E ORDER DATED 27.10.2009 PASSED BY THE LD. CIT(A), GWALIOR ON THE FOLLOWING GROUND :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED CIT(A) HAS ERRED IN DELETING THE PENALTY OF ` 4,19,060/- LEVIED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE I.T. ACT, 1 961. 2 2. THE BRIEF FACTS RELATING TO THE ISSUE IN DISPUTE ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER), THE ASSESSEE HAS REVISED HIS RETURN D ECLARING TOTAL INCOME OF ` 47,00,000/-, WHICH WAS ORIGINALLY SHOWN AS INCOME O F ` 37,00,000/-, AS A SUM OF ` 10,00,000/- WAS VOLUNTARILY SURRENDERED BY THE ASSE SSEE AS ADDITIONAL INCOME IN ADDITION TO THE INCOME DECLARED IN THE ORIGINAL RET URN. FURTHER, AN ADDITION OF ` 24,45,000/- HAS ALSO BEEN MADE BY THE A.O. AS DISAL LOWANCE UNDER SECTION 40(A)(IA) AS INTEREST TO 9 PARTIES ON WHICH THE ASSESSEE HAS FAILED TO DEDUCT TAX AT SOURCE IN TIME AND TO DEPOSIT IT WITHIN THE TIME UNDER SECTIO N 200(1) OF THE ACT. THE A.O. INITIATED PENALTY PROCEEDINGS AND FINALLY IMPOSED T HE MINIMUM PENALTY OF ` 4,19,060/- UNDER SECTION 271(1)(C) OF THE ACT VIDE ORDER DATED 30.06.2008. AGGRIEVED BY THE SAME, THE ASSESSEE FILED APPEAL BE FORE THE LD. FIRST APPELLATE AUTHORITY, WHO VIDE THE IMPUGNED ORDER DATED 27.10. 2009 DELETED THE PENALTY IN DISPUTE AND NOW THE REVENUE HAS FILED THE PRESENT A PPEAL AGAINST THE IMPUGNED ORDER. 3. AT THE TIME OF HEARING, THE LD. D.R. RELIED UPON THE IMPUGNED ORDER DATED 30.06.2008 PASSED BY THE JINT CIT, RANGE-3, GWALIOR . 3 4. THIS OFFICE HAS ISSUED NOTICE TO THE ASSESSEE B Y REGISTERED POST ACKNOWLEDGEMENT DUE FOR TODAY, BUT IN RESPONSE TO T HE SAME, NEITHER THE ASSESSEE NOR HIS AUTHORISED REPRESENTATIVE APPEARED TO PROSE CUTE THE MATTER NOR FILED ANY APPLICATION FOR ADJOURNMENT. KEEPING IN VIEW THE F ACTS AND CIRCUMSTANCES OF THE PRESENT CASE, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE IS NOT INTERESTED TO PROSECUTE THE MATTER IN DISPUTE. THEREFORE, WE ARE DECIDING THE ISSUE IN DISPUTE ON THE BASIS OF RECORDS AVAILABLE BEFORE US. 5. AFTER HEARING THE LD. D.R. AND PERUSING THE RELE VANT RECORDS AVAILABLE WITH US, ESPECIALLY THE ORDERS PASSED BY THE REVENUE AUTHORI TIES, WE ARE OF THE CONSIDERED OPINION THAT THE ORDER IMPOSING PENALTY IS QUASI-CR IMINAL IN NATURE AND THE BURDEN LIES UPON THE A.O. TO ESTABLISH THAT THE ASSESSEE H AD CONCEALED THE INCOME FOR WHICH THE A.O. HAS FAILED TO ESTABLISH ON RECORD ABOUT TH E CONCEALMENT OF ANY INCOME DISCLOSED BY THE ASSESSEE IN ITS RETURN OF INCOME. THE LEVY OF PENALTY IS NOT AN AUTOMATIC CONCOMITANT OF THE ASSESSMENT. AFTER PER USING THE ASSESSMENT RECORDS, WE FOUND THAT BEFORE LEVYING THE PENALTY IN DISPUTE TH E A.O. HAD NOT ESTABLISHED THAT THE ASSESSEE IS GUILTY OF ANY CONCEALMENT OR FURNISHING INACCURATE PARTICULARS OF ITS INCOME FOR THE YEAR IN DISPUTE. AS STATED IN THE F ACTS OF THE CASE, THE ASSESSEE HAS SHOWN ` 10,00,000/- ON ACCOUNT OF ITS SURRENDER WHICH WAS ACCEPTED BY THE A.O. 4 WITHOUT ESTABLISHING ANY CONCEALMENT ON BEHALF OF T HE ASSESSEE. SECONDLY, THERE IS A DISALLOWANCE OF ` 12,40,000/- MADE UNDER SECTION 40(A)(IA) OF THE AC T ON ACCOUNT OF DEDUCTION OF TAX ON PAYMENT TO VARIOUS PARTIES. AF TER PERUSING THE IMPUGNED ORDER, WE FOUND THAT THE ASSESSEE HAD MADE THE PAYMENT OF INTEREST IN THE MONTH OF MARCH ONLY ON FINALIZATION OF ACCOUNTS AND PAYMENT MADE B EFORE THE MONTH OF MARCH ARE TOWARDS THE PRINCIPLE PAYMENTS ON WHICH NO DEDUCTIO N OF TAX ARE REQUIRED AND THE ASSESSEE HAD FURTHER DEPOSITED THE ENTIRE AMOUNT OF TDS IN THE MONTH OF MAY. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF T HE PRESENT CASE, ESPECIALLY THE IMPUGNED ORDER PASSED BY THE LD. FIRST APPELLATE AU THORITY, WE ARE OF THE CONSIDERED OPINION THAT THE LD. FIRST APPELLATE AUTHORITY HAS PASSED A WELL REASONED ORDER ON THE BASIS OF FACTS AVAILABLE ON RECORD. THEREFORE, NO I NTERFERENCE IS CALLED FOR IN THE WELL REASONED ORDER PASSED BY THE LD. FIRST APPELLATE AU THORITY. WE UPHOLD THE SAME BY DISMISSING THE APPEAL FILED BY THE REVENUE. 6. IN THE RESULT, APPEAL FILED BY THE REVENUE IS D ISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 18.04.2011) SD/- SD/- (P.K. BANSAL) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE: AGRA DATE: 18 TH APRIL, 2011 5 PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR, ITAT, AGRA BENCH, AGRA 6. GUARD FILE ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRI BUNAL, AGRA TRUE COPY