A.C.I.T., Circle-2, Gwalior V. Sh. Balbir Singh Tripathi, Gwalior

ITA 521/AGR/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0312 (ITAT-AGRA)
• Duration Of Justice: 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-01-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 10-01-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 12-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KK MISHRA
• Assessee Lawyers: RICHA S SHIVPURI ACA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 521/AGRA/2012 ASSTT. YEAR : 2008-09 A.C.I.T., CIRCLE-2, VS. SHRI BALBIR SINGH TRIPA THI, GWALIOR. MAMA KA BAZAR, LASHKAR, GWALIOR. (PAN : ABUPT 8285 B) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.K. MISHRA, JR. D.R. RESPONDENT BY : SMT. RICHA S. SHIVPURI, ACA DATE OF HEARING : 10.01.2013 DATE OF PRONOUNCEMENT OF ORDER : 18.01.2013 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A), GWALIOR DATED 17.08.2012 FOR THE ASSESSMENT YEAR 20 08-09, CHALLENGING THE CANCELLATION OF PENALTY U/S. 271(1)(C) OF THE IT AC T. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE AO I MPOSED PENALTY U/S. 271(1)(C) OF THE IT ACT VIDE SEPARATE ORDER ON ACCOUNT OF ADD ITION OF INTEREST OF RS.4,50,000/- ACCRUED BUT NOT SHOWN BY THE ASSESSEE AS PER HIS RE TURN OF INCOME. THE ASSESSEES CASE WAS THAT INTEREST ON FDR HAS BEEN ACCOUNTED FO R IN SUBSEQUENT ASSESSMENT ITA NO. 521/AGRA/2012 2 YEAR 2009-10 AND NO INTEREST HAS BEEN PAID DURING T HE ASSESSMENT YEAR UNDER APPEAL. COPY OF THE BANK CERTIFICATE DATED 22.06.20 11 WAS FILED. THE LD. CIT(A) FOUND THAT DURING THE COURSE OF APPEAL PROCEEDINGS, THE AO HAS APPEARED IN THE APPELLATE PROCEEDINGS AND HE WAS HAVING NO OBJECTIO N FOR SUBMISSION OF BANK CERTIFICATE DATED 22.06.2011 FOR THE PURPOSE OF DIS POSAL OF QUANTUM APPEAL. THE LD. CIT(A) FURTHER FOUND THAT THE QUANTUM APPEAL OF THE ASSESSEE HAS BEEN DECIDED BY THE LD. CIT(A) VIDE ORDER DATED 17.08.2012 AND ADDI TION OF RS.4,50,000/- HAS BEEN DELETED. IN VIEW OF THIS MATTER, THE PENALTY WAS CA NCELLED AND THE APPEAL OF THE ASSESSEE HAS BEEN ALLOWED. 3. AFTER HEARING RIVAL SUBMISSIONS OF THE PARTIES, WE DO NOT FIND ANY JUSTIFICATION TO INTERFERE WITH THE ORDER OF THE LD . CIT(A) IN CANCELING THE PENALTY. THE SOLE BASIS OF LEVY OF PENALTY WAS THE ADDITION MADE ON ACCOUNT OF INTEREST ACCRUED BUT NOT SHOWN BY THE ASSESSEE AS PER RETURN . HOWEVER, THE ASSESSEE PRODUCED BANK CERTIFICATE TO PROVE THAT THE INTERES T HAS BEEN ACCOUNTED FOR IN SUBSEQUENT ASSESSMENT YEAR AND NO INTEREST HAS BEEN PAID TO THE ASSESSEE DURING THE ASSESSMENT YEAR UNDER APPEAL. THE AO WAS HAVING NO OBJECTION FOR ADMISSION OF BANK CERTIFICATE. THEREFORE, THERE IS NO CONCEALMEN T OF INCOME BY THE ASSESSEE OR FURNISHING INACCURATE PARTICULARS OF INCOME BY THE ASSESSEE. FURTHER, WHEN QUANTUM ADDITION HAS BEEN DELETED BY THE LD. CIT(A), THERE WAS NO BASIS LEFT FOR LEVY OF ITA NO. 521/AGRA/2012 3 PENALTY AGAINST THE ASSESSEE. THE LD. COUNSEL FOR T HE ASSESSEE SUBMITTED THAT THE REVENUE HAS NOT PREFERRED ANY APPEAL BEFORE THE TRI BUNAL ON QUANTUM. CONSIDERING THE ABOVE FACTS, WE ARE OF THE VIEW THA T ON SUCH FACTS EVEN THE DEPARTMENTAL APPEAL IS NOT MAINTAINABLE BECAUSE NO BASIS IS LEFT FOR FILING THE APPEAL BEFORE THE TRIBUNAL, AS THE QUANTUM ADDITION HAS BEEN DELETED IN THE MATTER. IN THIS VIEW OF THE MATTER, THE DEPARTMENTAL APPEAL IS DISMISSED. 4. IN THE RESULT, THE DEPARTMENTAL APPEAL IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY