ACIT, Gwalior V. M/s Kalayan memorial Charitable Trust, Gwalior

ITA 477/AGR/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7070 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 11-04-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 23-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K SHARMA
• Assessee Lawyers: APPLICATION REJECTED
• Keywords: Unexplained cash credit
• Section: 271(1)(c); 143(3); 154

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. 477/AGRA/2009 ASSTT. YEAR : 2002-03 A.C.I.T., CIRCLE 3, VS. M/S. KALYAN MEMORIAL CH ARITABLE TRUST, GWALIOR. BARADARI, MORAR, GWALIOR. (PAN : AAATK 4285 D) (APPELLANT) (RESPONDENT) FOR APPELLANT : SHRI A.K. SHARMA, JR. D.R. FOR RESPONDENT : APPLICATION REJECTED. ORDER PER P.K. BANSAL, A.M. : THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER DATED 30.09.2009 OF THE CIT(A), GWALIOR CHALLENGING THE CANCELLATION OF PEN ALTY IMPOSED U/S. 271(1)(C) BY TAKING FOLLOWING GROUND : ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(APPEALS) HAS ERRED IN DELETING THE PENALTY OF RS.;6,06,900/- LEV IED BY THE AO U/S. 271(1)(C) OF THE I.T. ACT ON THE GROUND OF INCOME FROM UNDISCLOS ED INCOME U/S. 68. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSI NG OFFICER WHILE MAKING THE ASSESSMENT OF ASSESSEE U/S. 143(3) MADE AN ADDITION OF RS.17,00,0 00/- ASSESSING THE TOTAL INCOME OF ASSESSEE AT RS.35,86,140/-. THIS ADDITION WAS MADE ON ACCOUNT O F UNEXPLAINED CASH CREDITS OF RS.17,00,000/- STANDING IN THE NAMES OF FIVE PERSONS AS MENTIONED IN PENALTY ORDER DATED 20.03.2008. THE ADDITION SO MADE STOOD CONFIRMED BY THE FIRST APPEL LATE AUTHORITY VIDE ORDER DATED 20.03.2006. THE ASSESSING OFFICER, THEREFORE, IMPOSED MINIMUM P ENALTY OF RS.13,26,872/- REPRESENTING TO 100% OF THE TAX SOUGHT TO BE EVADED FOR CONCEALMENT OF INCOME AND FURNISHING INACCURATE 2 PARTICULARS THEREOF. SINCE THE AMOUNT OF TAX ON CON CEALED INCOME OF RS.17,00,000/- WAS WRONGLY CALCULATED TO RS.13,26,872/- IN STEAD OF RS.6,06,90 0/-, THE AMOUNT OF PENALTY WAS REDUCED TO RS.06,06,900/- VIDE ORDER U/S. 154 DATED 31.03.2009 . WHEN THE MATTER WENT IN APPEAL BEFORE THE CIT(A), THE CIT(A), RELYING UPON THE DECISION OF HO NBLE SUPREME COURT IN THE CASE OF K.C. BUILDERS VS. ACIT, (2004) 265 ITR 562 (SC), CANCELL ED THE PENALTY ON THE GROUND THAT THE IMPUGNED ADDITION OF RS.17,00,000/- WHICH FORMED TH E BASIS FOR IMPOSITION OF PENALTY, STOOD DELETED BY THE TRIBUNAL VIDE ORDER DATED 17.07.2009 . BEING AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US. 3. WE HAVE HEARD THE LEARNED DR, WHO VEHEMENTLY REL IED ON THE PENALTY ORDER. NONE IS PRESENT ON BEHALF OF THE ASSESSEE. THE ADJOURNMENT APPLICATION RECEIVED THROUGH FAX STANDS REJECTED. THE LEARNED DR DOES NOT DENY THE FACT THA T THE ADDITION WHICH FORMED BASIS TO IMPOSE THE IMPUGNED PENALTY STOOD DELETED BY THE TRIBUNAL. WE, THEREFORE, FIND NO INFIRMITY IN THE FINDING OF CIT(A) THAT ONCE THE VERY BASIS FOR IMPO SITION OF PENALTY CEASES TO EXIST, NO PENALTY CAN BE SUSTAINED ON THE ASSESSEE. NO DECISION HAS B EEN CITED BY THE LEARNED DR CONTRARY TO THE DECISION IN THE CASE OF K.C. BUILDERS VS. ACIT (SUP RA) AS RELIED ON BY THE CIT(A) IN SUPPORT OF HIS FINDING. WE, THEREFORE, FIND NO REASON TO INTER FERE WITH THE ORDER OF CIT(A). 4. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11.04.2011. SD/- SD/- (H.S. SIDHU) (P.K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 11 TH APRIL, 2011 3 *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