The Deputy Commissioner of Income tax, Jalandhar V. M/s Sawhney Exports, Jalandhar

ITA 52/ASR/2011

• Counselvise Citation: 5220914 RSA 2011
• Duration Of Justice: 1 year(s) 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-08-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 06-08-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 17-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R S KALRA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.52(ASR)/2011 ASSESSMENT YEAR:2005-06 PAN :AAMFS2027D THE DY. COMMR. OF INCOME-TAX, VS. M/S. SAHNEY EXPOR TS, CIRCLE-II, JALANDHAR. JALANDHAR. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. TARSEM LAL, DR RESPONDENT BY:SH. R.S. KALRA, CA DATE OF HEARING:06/08/2012 DATE OF PRONOUNCEMENT:07/08/2012 ORDER PER BENCH ; THIS APPEAL OF THE REVENUE ARISES FROM THE ORDER O F THE CIT(A), JALANDHAR, DATED 11.11.2010 FOR THE ASSESSMENT YEAR 2005-06. 2. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPE AL: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE LD. CIT(A) HAS ERRED IN LAW IN DELETING THE PENALTY OF RS.5,71,713/- IMPOSED BY THE AO U/S 271(1)(C) OF THE I.T.ACT, 196 1. 2. THAT, IT IS PRAYED THAT THE ORDER OF THE LD. CIT (A) BE SET ASIDE AND THAT OF THE AO RESTORED. 3. THE BRIEF FACTS IN THE APPEAL OF THE REVENUE ARE THAT THE ASSESSEE HAD DEBITED PRECEDING YEARS PURCHASES IN THE IMPUGNED Y EAR AMOUNTING TO 2 RS.16,33,467/- WHICH, IN FACT, HAS BEEN SURRENDERED BY THE ASSESSEE AS PER EXPLANATION SUBMITTED VIDE PARA 6 & 7 OF THE ASSESS MENT ORDER. THE SURRENDER HAS BEEN MADE WITH A RIGHT TO DISPUTE LEV Y OF PENALTY, IF LEVIED. THE AO LEVIED PENALTY WHICH WAS DELETED BY THE LD. CIT(A) FOR THE REASONS THAT THE SURRENDER OF INCOME CANNOT BE CONSIDERED T O BE AN ACCEPTANCE OF CONCEALMENT OF INCOME. THE BILLS HAVE NOT BEEN PROV ED TO BE BOGUS. THE CORRESPONDING EXPENDITURE OF THE BILLS INCURRED HA S BEEN CLAIMED ONLY ONCE. THE BILLS ARE GENUINE BUT NOT ACCOUNTED FOR IN THE PRECEDING YEAR CAN BE SAID TO BE ERRONEOUS ACCOUNT BUT DOES NOT PROVE THAT TH E GOODS AGAINST THE BILLS WERE NOT RECEIVED OR THAT THE EXPENDITURE WAS WRON GLY CLAIMED IN THE CURRENT YEAR. 4. THE LD. DR, MR. TARSEM LAL DCIT(DR), SUPPORTED T HE ORDER OF THE A.O. AND ARGUED THAT BY SURRENDERING INCOME AND NOT GOING IN APPEAL IS AN ACCEPTANCE OF THE CONCEALMENT OF INCOME BY THE ASSE SSEE. 5. THE LD. COUNSEL OF THE ASSESSEE, SH. R.S. KALRA, CA, ON THE OTHER HAND, RELIED UPON THE ORDER OF THE LD. CIT(A) AND R EITERATED THE SUBMISSIONS MADE BEFORE HIM. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. WE CONCUR WITH THE VIEWS OF THE LD. CIT(A) THAT THE A.O. SOUGHT TO VERIFY THE GENUINENESS OF THE BILLS BY CALLING FOR INFORMA TION FROM THE CONCERNED SELLERS AND ALL THE SELLERS AND CONFIRMED TRANSACT IONS WITH THE ASSESSEE AND 3 SUBMITTED COPIES OF THE ASSESSEES ACCOUNT IN THEIR BOOKS. NO DISCREPANCY IN THE ACCOUNT WAS FOUND EXCEPT OUT OF BILLS WHICH WE RE NOT ACCOUNTED FOR IN THE PRECEDING YEAR, WHICH WERE ACCOUNTED FOR IN THE IMPUGNED ORDER. ALSO IT IS NOT THE CASE OF AO THAT SUCH BILLS HAVE BEEN BOO KED TWICE I.E. IN THE PRECEDING YEAR AND IN THE IMPUGNED YEAR BUT EXPENDI TURE HAS BEEN CLAIMED ONLY ONCE, WHICH BY MISTAKE HAS BEEN CLAIMED DURING THE YEAR AND HAS BEEN SURRENDERED BY THE ASSESSEE DURING THE YEAR AND TAX ES HAVE BEEN PAID. WE FIND NO CONCEALMENT OF INCOME OR FURNISHING OF INAC CURATE PARTICULARS OF INCOME. THEREFORE, NO PENALTY IN SUCH CASES CAN BE LEVIED. WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A). IN THE FA CTS AND CIRCUMSTANCES, ALL THE GROUNDS OF THE REVENUE ARE DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IN ITA NO.52(ASR)/2011 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 7TH AUGUST, 2012. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 7 TH AUGUST, 2012 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:M/S. SAHNEY EXPORTS, JALANDHAR. 2. THE DCIT, CIR.II, JALANDHAR. 3. THE CIT(A), JLR. 4. THE CIT, JLR. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY