Shri Arvindbhai Chandulal Shah, Ahmedabad V. The Income tax Officer,Ward-11(3), Ahmedabad

ITA 553/AHD/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9241 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 07-03-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 01-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS SOMUGYAN PAL
• Section: 143(3); 142(1); 144; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH BEFORE: S H RI PRAMOD KUMAR , ACCOUNTANT MEMBER AND SHR I S. S. GODARA , JUDICIAL MEMBER SHRI ARVINDBHAI CHANDULAL SHAH, PROP: CHEDUL JEWELLERS, C - 65, VIMALNATH SOCIETY, OPP: JAIN DERASAR, BAPURNAGAR, AHMEDABAD PAN: AFSPS6636P (APPELLANT) VS THE ITO, WARD - 11(3), AHMEDABAD (RESPONDENT) REVENUE BY : MRS . SOMUGYAN PAL , SR. D . R. ASSESSEE BY: S H RI ASEEM THAKKAR , A.R. DATE OF HEARING : 07 - 03 - 2 016 DATE OF PRONOUNCEMENT : 09 - 03 - 2 016 / ORDER P ER : S. S. GODARA , JUDICIAL MEMBER : - THIS ASSESSEE S APPEAL FOR A.Y. 200 6 - 07 , AR ISES FROM ORDER OF THE CIT(A) - XVI, AHMEDABAD DATED 03 - 12 - 2012 IN APPEAL NO. CIT(A) - XVI/ITO/WD. 11(3) / 079/11 - 12 CONFIRMING PENALTY OF RS. 1,10,000/ - , IN PROCEEDINGS UNDER SECTION 271( 1 ) (B) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . I T A NO . 553 / A HD/20 13 A S SESSMENT YEAR 200 6 - 07 I.T.A NO. 553 /AHD/20 13 A.Y. 2006 - 07 PAGE NO SHRI ARVINDBHAI CHANDULAL SHAH VS. ITO 2 2. WE HAVE HEARD BOTH THE PARTIES. FACTS OF THE CASE APPEARS TO BE IN A LITTLE NARROW COMPASS. THIS ASSESSEE IS ENGAGED IN MONEY LENDING BUSINESS. HE FILED RETURNED ON 11 - 07 - 2006 STATING INCOME OF R S. 99,850/ - . THE SAME WAS SUMMARILY PROCESSED . THE ASSESSING OFFICER THEREAFTER TOOK UP SCRUTINY. WE FIND FROM THE ASSESSMENT ORDER DATED 04 - 11 - 2008 THAT HE ALLEGEDLY ISSUED 13 NOTICES FROM 21 - 06 - 2007 TO 07 - 10 - 2008 U/S 142(1) R.W.S . 143(2) OF THE ACT EX CEPT THE LAST ONE ISSUED FOR INITIATING THE IMPUGNED PENALTY PROCEEDINGS. WE FIND FROM THE ASSESSMENT ORDER THAT THE ASSESSEE HAD SUBMITTED PART DETAILS SOUGHT FOR IN FURTHERANCE TO THE ONE DATED 21 - 11 - 2007. THE ASSESSING OFFICER WAS IN S CRU T IN Y PROCESSIN G AND WENT ON TO ADD CASH DEPOSIT AMOUNTING TO RS. 27,34,639/ - MADE IN ACCOUNT NO. 5739 OF THE NUTAN NAGRIK SAHKARI BANK LTD DURING FINANCIAL YEAR 2005 - 06. VARIOUS OTHER ADDITIONS REGARDING DEMAT ACCOUNT ETC. WERE ALSO MADE. THE ASSESSING OFFICER ALLEGED ASSESSEE S NON - OPERATION AND INITIATED THE IMPUGNED PENALTY PROCEEDINGS. 3. THE ASSESSEE PREFERRED QUANTUM APPEAL. THE CIT(A) PARTLY ACCEPTED THE SAME IN HIS ORDER DATED 28 - 07 - 2009. THE ASSESSING OFFICER PASSED CONSEQUENTIAL ORDER ON 04 - 09 - 2009 WORKIN G OUT THE TOTAL TAXABLE INCOME AS RS. 5,13,243/ - . QUANTUM PROCEEDINGS APPEAR TO HAVE ATTAINED FINALITY AT THIS STAGE. 4. WE COME TO THE IMPUGNED PENALTY PROCEEDINGS. THE ASSESSEE FILED HIS SUBMISSION ON 22 - 03 - 2011 INTER ALIA PLEADING THEREIN THAT HIS EXPLANATION QUA THE ABOVE STATED BANK DEPOSITS WAS NON - AVAILABILITY I.T.A NO. 553 /AHD/20 13 A.Y. 2006 - 07 PAGE NO SHRI ARVINDBHAI CHANDULAL SHAH VS. ITO 3 OF THE RELEVANT SLIP BOOKS, CHEQUE BOOKS AND OTHER DETAILS. HE SUBMITTED THAT ONCE THAT WAS THE CASE, THE ASSESSING OFFICER OUGHT TO HAVE FRAMED ASSESSMENT AT THAT STAGE ITSELF INSTEAD OF ISSUING FURTHER NOTICE LEADING TO NON - OPERATION . THE ASSESSING OFFICER REJECTED THE SAME BY HOLDING THAT THE ASSESSEE HAD NOT COMPLIED WITH THE ABOVE STATED SCRUTINY NOTICES WHICH RESULTED IN BEST JUDGMENT ASSESSMENT U/S. 144 OF THE ACT. HE ACCORDINGLY IMPOSED THE IMPUGNED PENALTY U/S. 271(1)(B) OF THE ACT IN ORDER DATED 31 - 03 - 2011. 5. THE CIT(A) AFFIRMS THE ASSESSING OFFICER S ACTION. 6. WE HEARD BOTH THE PARTIES. RELEVANT FACTS NARRATED HEREINABOVE ARE NOT REPEATED FOR THE SAME OF BREVITY. BOTH THE AUTHORITIES BELOW PENALIZES THE ASSESSEE ALLEGING HIS FAILURE IN COMPLYING TO SCRUTINY NOTICES U/S. 142 ( 1) R.W.S. 143(2) OF THE ACT. IT EMERGES FROM THE ASSESSMENT ORDER THAT THE ASSESSEE HAD FILED PART DETAILS ON 30 - 11 - 2007 IN FURTHERANCE TO NOTICE DATED 11 - 11 - 2007. NEITHER OF THE LOWER AUTHORITIES REBUT THIS FACTUAL POSITION. THERE IS FURTHER NO DISPUTE THAT ASSESSEE HAS EXPRESSED HIS INABILITY TO PRODUCE THE RELEVANT RECORDS SOUGHT FOR BECAUSE OF NON - AVAILABILITY THEREOF. THE ASSESSING OFFICER F RAMED ASSESSMENT U/S. 143(3) R.W.S 144 OF THE ACT. HE ADDED THE BANK DEPOSIT AMOUNT IN ASSESSEE S HANDS. WE HOLD IN THESE FACTS THAT THIS ASSESSMENT IS U/S. 143(3) AND DOES NOT FALL STRICTLY TO THE CATEGORY OF BEST JUDGMENT ASSESSMENT U/S. 144 OF THE ACT . WE NOTICE IN THESE FACTS AND CIRCUMSTANCES THAT A CO - ORDINATE BENCH OF THE TRIBUNAL (2008) 115 TTJ 419 (DELHI) AKHIL I.T.A NO. 553 /AHD/20 13 A.Y. 2006 - 07 PAGE NO SHRI ARVINDBHAI CHANDULAL SHAH VS. ITO 4 BARTIYA PRATHMIK SHMSHAK SANGH BHAWAN TRUST VS. ACIT DELETES AN IDENTICAL PENALTY FOR NON - COMPLIANCE SCRUTINY NOTICES BY HOLDING THAT AN ASSESSMENT ORDER PASSED U/S. 143(3) OF THE ACT IS A SUFFICIENT COMPLIANCE OF SCRUTINY NOTICES. WE DRAW SUPPORT THEREFROM AND ACCEPT ASSESSEE S ARGUMENT IN CHALLENGING THE IMPUGNED PENALTY. THE REVENUE S SUBMISSION SUPPORTING THE SAME STANDS REJECTED ACCO RDING LY. THE IMPUGNED SECTION 271(1) (B) OF RS. 1,10,000/ - IS DELETED. 7. THIS ASSESSEE S APPEAL IS ALLOWED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 09 - 03 - 201 6 SD/ - SD/ - ( PRAMOD KUMAR ) ( S. S. GODARA ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 09 /03 /2016 AK / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,