Asstt. C.I.T., Circle-3(1), Gwalior V. Shri Prem Narayan Shivhare, Gwalior

ITA 429/AGR/2010

• Counselvise Citation: 42920314 RSA 2010
• Duration Of Justice: 1 year(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-11-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 16-11-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 11-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K SHARMA
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI B.P. JAIN, ACCOUNTANT MEMBER ITA NO. 429/AGRA/2010 ASSTT. YEAR : 2006-07 A.C.I.T., CIRCLE 3(1), VS. SHRI PREM NARAYAN SHIV HARE, CIRCLE 3(1), GWALIOR. CHAR SAHAR KA NAKA, GWALIO R. (PAN : AHRPS 1296 E) (APPELLANT) (RESPONDENT) FOR APPELLANT : SHRI A.K. SHARMA, JR. D.R. FOR RESPONDENT : NONE DATE OF HEARING : 16.11.2011 DATE OF PRONOUNCEMENT : 17.11.2011 ORDER PER BENCH: THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST T HE IMPUGNED ORDER DATED 16.08.2010 PASSED BY THE LD. CIT(A), GWALIOR ON THE FOLLOWING GROUNDS : WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE THE CIT(APPEALS) HAS ERRED IN CANCELING THE PENALTY OF RS.2,45,666/- LEVIED BY THE A.O. U/S. 271)1)(C) OF THE I.T. ACT ON THE GROUND OF INACCURATE PARTICULARS OF INCOME WAS FURN ISHED BY THE ASSESSEE FOR THE YEAR. 2 2. THE NOTICE OF HEARING WAS ISSUED TO THE ASSESSEE . IN RESPONSE TO THE SAME, THE ASSESSEE NOR HIS AUTHORIZED REPRESENTATIVE APPE ARED NOR FILED ANY APPLICATION FOR ADJOURNMENT. KEEPING IN VIEW OF THE FACTS AND C IRCUMSTANCES OF THE PRESENT CASE, WE ARE OF THE CONSIDERED OPINION THAT NO USEF UL PURPOSE WOULD BE SERVED TO ISSUE NOTICES AGAIN AND AGAIN TO THE ASSESSEE. T HEREFORE, WE ARE PROCEEDING TO DECIDE THE APPEAL IN DISPUTE EXPARTE QUA ASSESSEE A ND AFTER HEARING THE LD. DR. 3. THE FACTS RELATING TO THE ISSUE IN DISPUTE ARE T HAT THE ASSESSING OFFICER COMPLETED ASSESSMENT U/S. 143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER CALLED THE ACT) ON 29.12.2008 AT THE INCOME OF RS .11,95,070/- AGAINST THE RETURNED INCOME OF RS.4,95,070/-. THE ASSESSEE IS A LIQUOR CONTRACTOR AND HAS NOT FILED ANY BOOKS OF ACCOUNT, BILLS AND VOUCHERS BEFORE THE ASSESSING OFFICER. THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE WAS NOT ISSUING ANY SALE BILLS AND CLAIMED THAT ALL GOODS HAVE BEEN PURCHASED FROM THE STATE GOVERNMENT AND MAINTAINED STOCK REGISTER AT ALL THE SHOPS, BUT HE HAS NOT PRODUCED THE SAME BEFORE THE ASSESSING OFFICER AND CLAIMING THAT SOME OF THESE HAVE BEEN LOST IN TRANSIT BETWEEN ONE SHOP TO ANOTHER SHOP. THE ASSES SING OFFICER ALSO FOUND THAT 3 THE EXPENSES DEBITED TO THE PROFIT AND LOSS ACCOUNT WERE ALSO NOT VERIFIABLE IN ABSENCE OF COMPLETE BILLS AND VOUCHERS. KEEPING IN VIEW OF THE DISCREPANCIES, THE ASSESSEE VOLUNTARILY SURRENDERED THE ADDITION O F RS.7,00,000/- IN ADDITION TO THE INCOME DECLARED IN THE RETURN OF INCOME. THE AS SESSING OFFICER LEVIED THE PENALTY U/S. 271(1)(C) AT THE MINIMUM RATE, I.E. 10 0% AMOUNTING TO RS.2,45,666/- VIDE ORDER DATED 30.06.2009. AGGRIEVE D BY THE SAME, THE ASSESSEE FILED FIRST APPEAL BEFORE THE LD. FIRST APPELLATE A UTHORITY, WHO VIDE IMPUGNED ORDER DATED 16.08.2010 ACCEPTED THE APPEAL OF THE A SSESSEE AND DELETED THE PENALTY IN DISPUTE BY HOLDING THAT THE ASSESSING OF FICER HAS NOT BROUGHT ANY MATERIAL ON RECORD TO SHOW THAT THE ASSESSEE HAS DE CLARED INACCURATE PARTICULARS OF INCOME. IN FACT, THE ASSESSEE HAS VOLUNTARILY SU RRENDERED THE INCOME OF RS.7,00,000/- WHICH DOES NOT AUTOMATICALLY IMPLY TH E FACT OF FURNISHING OF INACCURATE PARTICULARS OF INCOME. NOW, THE REVENUE HAS FILED THE PRESENT APPEAL. 4. AT THE TIME OF HEARING, THE LD. DR RELIED UPON T HE ORDER PASSED BY THE ASSESSING OFFICER DATED 30.06.2009. 4 5. AFTER HEARING THE LD. DR AND PERUSING THE ORDERS PASSED BY THE REVENUE AUTHORITIES, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSING OFFICER HAS NOT BROUGHT ANY MATERIAL ON RECORD TO SHOW THAT THE ASS ESSEE HAS FURNISHED INACCURATE PARTICULARS OF HIS INCOME. IT IS ADMITTE D FACT THAT THE ASSESSEE HAS VOLUNTARILY SURRENDERED THE INCOME OF RS.7,00,000/- , WHICH HAS BEEN ACCEPTED BY THE ASSESSING OFFICER WHILE COMPLETING THE ASSES SMENT AND ADDED THE SAME AS INCOME OF THE ASSESSEE. THE SURRENDER BY THE ASS ESSEE IS ON ACCOUNT OF INCOMPLETE DOCUMENTARY EVIDENCE AS REQUIRED BY THE ASSESSING OFFICER. KEEPING IN VIEW OF THE BUSINESS OF THE ASSESSEE, I. E., LIQUOR CONTRACTOR, HE HAS SURRENDERED RS.7,00,000/- ON ACCOUNT OF NON-PRODUCT ION OF BILL, VOUCHERS AND STOCK REGISTERS. AFTER GOING THROUGH THE ASSESSMENT ORDER AS WELL AS THE PENALTY ORDER, WE ARE OF THE CONSIDERED OPINION THAT WHERE THE SURRENDER HAS BEEN MADE BY THE ASSESSEE VOLUNTARILY AND DEPARTMENT HAS FAIL ED TO DETECT ANY CONCEALMENT OF INCOME, THE PENALTY IS NOT LEVIABLE AS HAS BEEN LEVIED IN THE CASE OF PRESENT ASSESSEE. THE LD. FIRST APPELLATE AUTHORITY HAS RIG HTLY DELETED THE PENALTY IN DISPUTE BY RESPECTFULLY FOLLOWING THE ORDER OF ITAT , LUCKNOW BENCH IN THE CASE OF SANTOSH NARAIN KAPOOR VS. DCIT, 115 TTJ 492 . AFTER GOING THROUGH THE IMPUGNED ORDER PASSED BY THE LD. FIRST APPELLATE AU THORITY, WE ARE OF THE 5 CONSIDERED OPINION THAT NO INTERFERENCE IS CALLED I N THE WELL REASONED ORDER PASSED BY THE LD. FIRST APPELLATE AUTHORITY. WE UPH OLD THE SAME BY DISMISSING THE APPEAL FILED BY THE REVENUE. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 17.11.20 11. SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: NOVEMBER, 2011 *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE ASSISTANT REGISTRAR TRUE COPY