ITO 25(3)(3), MUMBAI V. RATANSHI N. PATEL (HUF) (PROP. NARAYAN CONSTRUCTION), MUMBAI

ITA 4453/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7187 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-03-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 24-07-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T T JACOB
• Section: 271(1)(c); 144; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D: MUMBAI BEFORE SHRI J. SUDHAKAR REDDY (AM) AND SHRI R.S. PADVEKAR (JM) ITA NO. 4453/MUM/2009 (ASSTT. YEAR : 2005-06) ITO 25(3)(3), APPELLANT C-11, R.NO. 304, PRATYAKSH KAR BHAVAN, BANDRA-KURLA COMPLEX, BANDRA (EAST) MUMBAI 400051 V/S. RATANSHI N. PATEL (HUF) RESPONDENT (PROP. NARAYAN CONSTRUCTION) B/605, HIGHLAND HARMONY, MAHAVIR NAGAR, KANDIVALI (WEST), MUMBAI-400067 APPELLANT BY :MR. T.T. JACOB RESPONDENT BY :NONE : O R D E R : PER R.S. PADVEKAR, J.M IN THIS APPEAL, THE REVENUE HAS CHALLENGED THE IMP UGNED ORDER OF THE LD CIT(A)- XXV, MUMBAI DATED 11-05-2009 FOR THE A. Y. 2005-06 IN WHICH THE LD CIT(A) HAS DELETED THE PENALTY LEVIED BY THE A. O U/S. 271(1)(C ) OF THE ACT. 2. THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS : (1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE PENALTY U/S. 2 71(1)(C) ON ADDITION MADE ON ACCOUNT OF UNPROVED LOAN OF RS. 2,09,213/- MADE BY THE ASSESSING OFFICER. (2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE PENALTY U/S. 271(1 )(C ) ON ADDITION MADE ON ACCOUNT OF UNPROVED LABOUR CHARGES OF RS.20,61,7 14/- AND SALARY TO SUPERVISOR OF RS. 63,000/-. ITA NO. 4453/MUM/2009 2 3. WHEN THIS APPEAL WAS CALLED FOR HEARING, THE LD. D.R. FOR THE REVENUE WAS PRESENT . NONE WAS PRESENT ON BEHALF OF THE AS SESSEE. IT IS SEEN THAT NOTICE OF HEARING HAS BEEN SENT TO THE ASSESSEE BY THE REGISTERED POST A.D. WE, THEREFORE, DECIDED TO DISPOSE OF THIS APPEAL ON MERIT. 4. WE HAVE HEARD THE LD. D.R. IN THIS CASE, THE AS SESSMENT WAS COMPLETED U/S. 144 OF THE ACT ON 17.10.205 IN WHIC H THE TOTAL INCOME OF THE ASSESSEE WAS ASSED ON RS.29,03,230/-. THE A.O MADE FOLLOWING ADDITIONS : (I) UNPROVED LOAN OF RS. 2,09,212/- FROM M/S. SHRI ASHAPURA CONSTRUCTIONS. (II) UNPROVED LABOUR CHARGES OF RS. 20,61,714/- AND SALARY TO SUPERVISORS OF RS. 63,000/- (III) ON ACCOUNT OF LOW WITHDRAWALS RS. 26,000/- THE A.O. INITIATED THE PENALTY PROCEEDINGS IN RESPE CT OF THE ABOVE ADDITIONS U/S. 271(1)(C) OF THE ACT AND LEVIED THE PENALTY OF RS. 7,94,353/- FOR FURNISHING THE INACCURATE PARTICULARS AS WELL AS FO R CONCEALING THE PARTICULARS OF INCOME OF RS. 23,59,926/-. IT APPEARS THAT THE ASSESSEE HAD CHALLENGED THE ASSESSMENT ORDER BEFORE THE CIT(A)- XXV, MUMBAI AND DELETED ALL THE ADDITIONS MADE BY THE A.O EXCEPT THE ADDITION ON AC COUNT OF LOW WITHDRAWALS. THE CIT(A), THEREFORE, DELETED THE PENALTY BY GIVIN G THE FOLLOWING REASONS : 3.3 I HAVE GONE THROUGH THE SUBMISSIONS AND FIND T HAT CIT(A) XXV VIDE APPELLATE ORDER NO. CIT(A)XXV/ITO 25(3)(3)/IT/ 126/08-09 DATED 27-2-2009 IN THE CASE OF APPELLANT FOR A.Y. 2005-06 HAS DELETED THE ADDITION OF RS. 2,09,212/- AS UNPROVED LOAN, RS. 20 ,61,714/- AS UNPROVED LABOUR CHARGES AND SALARY TO SUPERVISOR OF RS. 63,000/- AFTER DETAILED DISCUSSION. AS THE CAUSE FOR WHICH PENALT Y IS LEVIED DOES NOT EXIST, PENALTY LEVIED BY THE A.O. U/S. 271(1)(C ) O N ABOVE ITEMS DOES NOT SURVIVE. SO FAR AS PENALTY ON ADDITION OF RS. 26,000/- ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWALS IS CONCERNED, PENALTY IS NOT LEVIABLE AS THE ADDITION IS MADE BY THE A.O. BASED ON ESTIMATION. IT DOES NOT AMOUNT TO CONCEALMENT. IN VIEW OF ABOVE, PENALTY LEVIED BY THE A.O IS CANCELLED AND APPEAL STANDS ALLOWED. ITA NO. 4453/MUM/2009 3 5. THE REASONS GIVEN BY THE LD CIT(A) ARE SELF EXP LANATORY FOR DELETING THE PENALTY. WE, THEREFORE, DO NOT FIND ANY REASON TO INTERFERE WITH THE SAME. 6. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30TH DAY OF MARCH , 2010. SD/- SD/- (J. SUDHAKAR REDDY) (R.S. PADVEKAR) ACCOUNTANT MEMBER JUDICIAL ME MBER MUMBAI, ON THIS 30TH DAY OF MARCH, 2010. :US COPY TO: 1. APPELLANT 2. RESPONDENT , 3.THE CIT(A)- XXV, MUMBAI 4.THE CIT - MUMBAI CITY 25, MUMBAI 5.THE DR, D BENCH, MUMBAI 6.GUARD FILE BY ORDER TRUE COPY ASSTT..REGISTRAR, ITAT, MUMBAI. ITA NO. 4453/MUM/2009 4 US DATE INITIALS 1. DRAFT DICTATED ON 26/3/10 --------------- SR.P.S . 2. DRAFT PLACED BEFORE AUTHORITY 30/3/10 -------- ------ SR.P.S. 3. DRAFT PROPOSED & PLACED ----------- ---------- --- JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED ----------- ----------- -- JM/AM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO ----------- ------------ - SR.P.S. THE SR. P.S./P.S 6. KEPT FOR PRONOUNCEMENT ON --------- ----------- -- SR.P.S. 7. FILE SENT TO THE BENCH CLERK --------- --------- ---- SR.P.S. 8. DATE ON WHICH FILE GOES TO THE ------- --------- ---- 9. DATE OF DISPATCH OF ORDER --------- --------- ----