Shreyad Sales Corporation, Ahmedabad V. The Income tax Officer, Ward-2(2), Ahmedabad

ITA 627/AHD/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 5625 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-07-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 19-07-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 18-02-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K DHANESTA
• Assessee Lawyers: VIVEK N CHAVDA
• Keywords: Set aside
• Section: 271(1)(c); 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD D BENCH (BEFORE S/SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND D.C. AGRAWAL, ACCOUNTANT MEMBER) ITA.NO.627/AHD/2008 ASSTT.YEAR : 2002-2003 SHREYAD SALES CORPN. 165, FATASA STREET OPP: MAHAVIR SWAMI TEMPLE GANDHI ROAD, AHMEDABAD. VS. ITO, WARD-2(2) AHMEDABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VIVEK N. CHAVDA REVENUE BY : SHRI R.K. DHANESTA O R D E R PER BHAVNESH SAINI, JUDICIAL MEMBER: THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMI SSIONER OF INCOME-TAX (APPEALS) VII, AHMEDABAD DATED 14.12.2007 FOR A.Y. 2002-2003 CHALLENGING THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE AS SESSEE IS PARTNERSHIP FIRM AND ENGAGED IN BUSINESS OF COMMISSION AGENT OF ATUL LIMITED, VALSAD AND AS BOOKING AGENT FOR TRANSPORTATION OF GOODS. IT HAD FILED ITS RETURN OF INCOME DECLARING TOTAL INCOME OF RS.1,35,633/-. HOWEVER, THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF THE ACT ON THE IN COME OF RS.5,70,020/- AFTER MAKING DISALLOWANCE, INTER ALIA , OF TRUCK REPAIRING EXPENSES OF RS.2,91,500/- RELATING TO FOUR PARTIES VIZ. NBY MOTOR GARAGE, SHR I JAYAMBE GARAGE, BISMILLAH MOTOR GARAGE AND SHRI VISHWAKARMA MOTOR G ARAGE. THE LEARNED CIT(A) CONFIRMED THE ADDITION OF RS.2,71,500/-. TH E AO ACCORDINGLY ISSUED PENALTY NOTICE AND IMPOSED PENALTY. THE ASSESSEE F ILED WRITTEN SUBMISSIONS BEFORE THE LEARNED CIT(A) CHALLENGING THE PENALTY U NDER SECTION 271(1)(C), HOWEVER, THE LEARNED CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. ITA.NO.627/AHD/2008 -2- 3. THE LEARNED COUNSEL FOR THE ASSESSEE, AT THE OUT SET, SUBMITTED THAT THE QUANTUM MATTER CHALLENGING THE ADDITION WENT UPTO T HE TRIBUNAL AND THE TRIBUNAL IN THE CASE OF THE ASSESSEE IN ITA NO.2664 /AHD.2005 VIDE ORDER DATED 19-12-2008 DELETED THE ENTIRE ADDITION OF RS. 2,71,500/-. COPY OF THE ORDER IS FILED ON RECORD. THE LEARNED DR DID NOT D ISPUTE TO THE ABOVE FACTS. 4. CONSIDERING ABOVE FACTS AND THAT THE ADDITION OF QUANTUM HAS BEEN DELETED BY THE TRIBUNAL, THEREFORE, NOTHING LEFT TO JUSTIFY THE IMPOSITION OF PENALTY. SINCE THE FOUNDATION OF THE IMPOSITION OF PENALTY ITSELF HAS GONE ON QUANTUM MATTER, THEREFORE, PENALTY CANNOT BE LEVIED UNDER SECTION 271(1)(C) OF THE ACT. WE ACCORDINGLY SET ASIDE THE ORDERS OF TH E AUTHORITIES BELOW AND CANCEL THE PENALTY. 5. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 19 TH JULY, 2010. SD/- SD/- (D.C.AGRAWAL) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER PLACE : AHMEDABAD DATE : 19-07-2010 VK* COPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER AR, ITAT, AHMEDABAD