SHRI TAPESHWAR NATH, JAIPUR V. INCOME TAX OFFICER, WARD-3-2, JAIPUR

ITA 586/JPR/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2309 (ITAT-JAIPUR)
• Duration Of Justice: 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-03-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 26-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C GUPTA
• Assessee Lawyers: ASHOK KUMAR KANODIA
• Keywords: Salary income; Set aside
• Section: 271(1)(c); 201; 147; 139

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENC HES B JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRA M SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 586/JP/2019 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2008-09 SH. TAPESHWAR NATH 201 HARE KRISHNA APARTMENT D-248, BIHARI MARG, BANI PARK, JAIPUR CUKE VS. THE ITO, WARD 3(2), JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAHPN4598D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SH. ASHOK KUMAR KANODIA (A/R) JKTLO DH VKSJ LS @ REVENUE BY : SH. K. C. GUPTA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 18/03/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 19/03/2020 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-22, ALWAR DATED 26.02.2019 WHEREIN THE LD. CIT(A) HAS C ONFIRMED THE LEVY OF PENALTY U/S 271(1)(C) AMOUNTING TO RS. 1,87,130/- L EVIED BY THE AO VIDE HIS ORDER DATED 30.06.2016. 2. AT THE OUTSET, THE LD. AR SUBMITTED THAT IN THIS CASE, THE ASSESSMENT WAS COMPLETED U/S 147 READ WITH 144 VIDE ORDER DATED 15 .12.2015 WHEREIN THE AO HAS MADE AN ADDITION OF RS. 7,75,592/-. IT WAS SUBM ITTED THAT ON APPEAL, THE SAID ADDITION HAS SINCE BEEN DELETED BY THE LD. CIT (A) AND THEREFORE, WHERE THE ADDITION HAVE BEEN DELETED, THERE IS NO BASIS FOR L EVY OF PENALTY. IT WAS ACCORDINGLY SUBMITTED THAT THE PENALTY SO SUSTAINED BY THE LD. CIT(A) MAY BE DELETED. ITA NO. 586/JP/2019 SH. TAPESHWAR NATH, JAIPUR VS. ITO, WARD 3(2), JAIP UR 2 3. PER CONTRA, THE LD. DR IS HEARD WHO HAS RELIED O N THE ORDER OF THE LOWER AUTHORITIES. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THIS CASE, WE FIND THAT IN ABSENCE OF ANY RETURN OF INCOME FILED ORIGINALLY BY THE ASSESSEE U/S 139 OR IN RESPONSE T O NOTICE U/S 148, THE ASSESSMENT WAS COMPLETED U/S 147 READ WITH 144 WHER EIN THE AO HAS MADE AN ADDITION OF RS. 7,75,592/- BASED ON ITS DETAILS AVA ILABLE WITH THE DEPARTMENT AND PENALTY PROCEEDINGS U/S 271(1)(C) WERE SEPARATE LY INITIATED AND THEREAFTER PENALTY ORDER WAS PASSED U/S 271(1)(C) ON 30.06.201 6 LEVYING PENALTY OF RS 187130/- WHICH HAS BEEN CONFIRMED BY THE LD CIT( A), ALWAR VIDE HIS ORDER DATED 26.02.2019. HOWEVER, THE QUANTUM APPEAL OF T HE ASSESSEE WAS PENDING ADJUDICATION BEFORE LD CIT(A)-1, JAIPUR WHO VIDE HI S ORDER DATED 02.05.2019 HAS ALLOWED PARTIAL RELIEF TO THE ASSESSEE. 5. THE LD. CIT(A) IN HIS ORDER DATED 02.05.2019 NOT ED THAT THE ASSESSEE HAS SUBMITTED A COMPUTATION OF INCOME WHEREIN HE HAS SH OWN SALARY INCOME OF RS. 1,34,661/- AND PROFESSION RECEIPT OF RS. 6,40,937/- TOTALING TO TOTAL RECEIPTS OF RS. 7,75,592/-. FURTHER, AGAINST THE PROFESSION REC EIPTS, THE ASSESSEE HAS CLAIMED EXPENSES OF RS. 5,18,337/-. A REMAND REPORT WAS CALLED FOR FROM THE AO WHEREIN THE AO HAS OBJECTED TO THE SALARY EXPENS E OF RS. 2,45,000/-. THEREAFTER, THE LD CIT(A) HAS CONSIDERED THE SALARY EXPENSE REASONABLE AND GIVEN THE FOLLOWING FINDINGS WHICH READS AS UNDER:- (V) IN THE REMAND REPORT, THE AO ACCEPTED THE CLAI M OF ALL EXPENSES EXCEPT SALARY EXPENSES AMOUNTING TO RS. 2,45,000/-. IT WAS CONTENDED BY THE APPELLANT THAT HE IS RUNNING PATHOLOGY CENTR E AND THE SALARY HAS BEEN PAID TO SHRI MADHAV PATEL, ACCOUNTANT AND SHRI NARESH GUPTA, TECHNICIAN. IT WAS FURTHER SUBMITTED THAT WITHOUT T HE HELP OF ACCOUNTANT AND TECHNICIAN, THE PATHOLOGY CENTRE CANNOT BE RUN. SEEING THE QUANTUM OF SALARY CLAIMED ON MONTHLY BASIS AND ALSO CONSIDE RING THE NEED OF THE BUSINESS, THESE EXPENSES ARE CONSIDERED AS REASONAB LE AND NO ITA NO. 586/JP/2019 SH. TAPESHWAR NATH, JAIPUR VS. ITO, WARD 3(2), JAIP UR 3 DISALLOWANCE IS JUSTIFIED. THE AO IS DIRECTED TO RECOMPUTE THE INCOME AFTER ALLOWING THE BENEFIT OF EXPENSES CLAIM ED. 6. WE THEREFORE, FIND THAT THE LD. CIT(A) HAS ACCEP TED THE CLAIM OF THE EXPENSES AMOUNTING TO RS. 5,18,337/- AGAINST PROFES SION RECEIPTS OF RS. 6,40,937/- AND THE MATTER WAS REMANDED TO THE AO TO RE-COMPUTATION THE INCOME AFTER ALLOWING THE BENEFIT OF EXPENSES CLAIM ED. WE FIND THAT THE RECOMPUTED INCOME WOULD CONSIST OF SALARY INCOME OF RS. 1,34,661/- AS WELL AS NET PROFESSION RECEIPT AMOUNTING TO RS. 1,22,600/- WHICH WOULD STILL BE TAXABLE IN THE HANDS OF THE ASSESSEE. THEREFORE, IT IS NOT A CASE WHERE THE WHOLE ADDITIONS OF RS 775,592 HAS BEEN DELETED BY THE LD CIT(A) AND THEREFORE, NO CONSEQUENT PENALTY CAN BE LEVIED. WE ACCORDINGLY SET ASIDE THE MATTER TO FILE OF THE AO TO RE-COMPUTE THE PENALTY CONSEQUENT TO R E-COMPUTATION OF INCOME AS PER THE DIRECTIONS OF THE LD. CIT(A). IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISPOS ED OFF IN LIGHT OF AFORESAID DIRECTIONS. ORDER PRONOUNCED IN THE OPEN COURT ON 19/03/2020. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 19/03/2020 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI TAPESHWAR NATH, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD 3(2), JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 586/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR