Asst. Commissioner of Income Tax, Circle-1, Belagavi., Belagavi V. Shri Praveen V. Doddoannavar, Belagavi

ITA 40/PAN/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93594 (ITAT-PANAJI)
• Duration Of Justice: 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 15-07-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 27-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANAND SHANKAR MARATHE
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI N.S. SAINI , HONBLE ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, HONBLE JUDICIAL MEMBER ITA NO. 40 /PNJ/201 5 (ASST. YEAR : 200 9 - 1 0 ) ACIT, CIRCLE - 1, BELAGAVRI. VS. SRI PRAVEEN V. DODDANNAVAR, DODDANNAVAR CORPORATE HOUSE, 738/1, KHANAPUR ROAD, NEAR 3 RD RAILWAY GATE, BELAGAVI. PAN NO. AA MPD 9793 K (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE. DEPARTMENT BY : SHRI ANAND SHANKAR MARATHE - D R DATE OF HEARING : 1 5 / 0 7 /2015 . DATE OF PRONOUNCEMENT : 15 / 0 7 /201 5 . O R D E R PER N.S. SAINI , ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), BANGALORE, DATED 2 1 / 1 0/201 4 . 2. B RIEF FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER WHILE MAKING THE ASSESSMENT UNDER SEC. 143(3) ON 28/12/2011 MADE THE ADDITION OF RS.38,74,780/ - ON ACCOUNT OF COMMISSION RECEIVED FROM SHRI VINITH BICHU WHICH WAS NOT DECLARED BY THE ASSESSEE IN THE RETURN OF INCOME. 3 . THE SAID ADDITION WAS CONFI R MED BY THE COMMISSIONER OF INCOME TAX (APPEALS) VIDE ORDER DATED 24/12/2012 PASSED IN I.T.A.NO. 248/JCIT (OSD) , CC - 2, BELGAUM/CIT(A) - VI/B LORE /2011 - 12 . 2 ITA NO. 40/PNJ/2014 5 4 . THE ASSESSING OFFICER , THEREAFTER LEVIED PENALTY UNDER SEC. 271(1)(C) OF THE ACT VIDE ORDER DATED 14/03/2013 , AT RS.13,17,066/ - ON ACCOUNT OF CONCEALMENT OF INCOME. 5. THE ASSESSEE FILED APPEAL BEFORE THE TRIBUNAL AGAINST THE ADDITION OF RS. 38, 74,780/ - AND THIS BENCH OF THE TRIBUNAL IN I.T.A.NO. 24/PNJ/2013 DATED 06/09/2013 , DELETED THE ADDITION MADE BY THE ASSESSING OFFICER AND UPHELD BY THE COMMISSIONER OF INCOME TAX (APPEALS) . WHILE DOING SO, THE TRIBUNAL HELD THAT THE AMOUNT RECEIVED FROM SHRI VINIT BICHU WAS REFUND OF CAPITAL AND DOES NOT AMOUNT TO INCOME EITHER AS COMMISSION OR AS A CASUAL RECEIPT. 6. ON APPEAL FILED BY THE ASSESSEE AGAINST THE LEVY OF PENALTY BY THE ASSESSING OFFICER, THE COMMISSIONER OF INCOME TAX (APPEALS) DELETED THE PENALTY ON THE GROUND THAT AS THE ADDITION MADE ITS ELF WAS DELETED , T HEREFORE, THE PENALTY DOES NOT SURVIVE. 7. BEING AGGRIEVED BY THIS ORDER, THE REVENUE IS IN APPEAL BEFORE US. 8. WE FIND THAT THE HONBLE SUPREME COURT IN THE CASE OF K.C. BUILDERS AND ANOTHER VS. ACIT REPORTED IN 265 ITR 562 (SC) HAS HELD THAT WHERE THE ADDITIONS MADE IN THE ASSESSMENT ORDER ON THE BASIS OF WHICH PENALTY FOR CONCEALMENT IS LEVIED, ARE DELETED, THERE REMAINS NO BASIS AT ALL FOR LEVYING PENALTY FOR CONCEALMENT AND, THEREFORE, IN SUCH A CASE NO PENALTY CAN SU RVIVE AND THE PENALTY IS LI A B L E TO BE CANCELLED. ORDINARILY, PENALTY CANNOT STAND IF THE ASSESSMENT ITSELF IS SET ASIDE. 9. IN VIEW OF THE ABOVE QU O TED DECISION OF THE HONBLE SUPREME COURT , WE FIND NO INFIRMITY IN THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) WHICH IS CONFI R MED AND THE GROUND OF APPEAL OF THE REVENUE IS DISMISSED. 3 ITA NO. 40/PNJ/2014 5 10. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE HEARING ON WEDNESDAY , THE 1 5 TH DAY OF JULY , 201 5 AT GOA . S D / - S D / - (GEORGE MATHAN) (N.S.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 1 5 TH JU LY , 201 5 . VR/ - COPY TO: 1 . THE ASSESSEE. 2 . THE REVENUE. 3 . THE CIT 4 . THE CIT(A) 5 . THE D.R 6 . GUARD FILE. BY ORDER ASSISTANT REGISTRAR I.T.A.T., PANAJI 4 ITA NO. 40/PNJ/2014 5 DATE INITIAL ORIGINAL DICTATION PAD IS ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 1 5 .0 7 .2015 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 16 .07 .2015 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 16 /07 /2015 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 16 /0 7 /2015 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 16 /07 /2015 SR.PS 6. DATE OF PRONOUNCEMENT 15 /0 7 /2015 SR.PS 7. FILE SENT TO THE BENCH CLERK 1 7 /07 /2015 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER