Shri Atulkumar Rajnikant Parikh, Nadiad V. The Income Tax Officer, Ward-1, Nadiad

ITA 637/AHD/2014

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5980 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 11 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 24-07-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 04-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K SINGH
• Assessee Lawyers: K C THAKER
• Keywords: Period of limitation; Time period of passing order

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH AHMEDABAD BEFORE, SHRI PRAMOD KUMAR , ACCOUNTANT MEMBER AND SHRI S. S. GODARA, JUDICIAL MEMBER ITA NO. 637/AHD/2014 (AS SESSMENT YEAR: 2009-10) PARIKH ATULKUMAR RAJNIKANT 9-VALLABH PARK, PETLAD ROAD, NADIAD - 387001, KAIRA DIST. APPELLANT VS. INCOME-TAX OFFICER, WARD-1, NADIAD, KAIRA DISTRICT, NADIAD - 387002 RESPONDE NT PAN: ADHPP7789H /BY ASSESSEE : SHRI K. C. THAKER, A.R. /BY REVENUE : SHRI V. K. SINGH, SR. D.R. /DATE OF HEARING : 05.02.2018 /DATE OF PRONOUNCEMENT : 27.02.2018 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2009-10 ARISES AGAINST THE CIT(A)-I, BARODAS ORDER DATED 25.11.2013, IN CASE NO. CAB-I/175/2013-14, CONFIRMING ASSESSING OFFICERS ACTION IMPOSING PENA LTY OF RS.1LAKH, IN PROCEEDINGS U/S. 271(1)(C) OF THE INCOME TAX ACT, 1961; IN SHOR T THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. WE NOTICE AT THE OUT THAT THE INSTANT APPEAL SUF FERS FROM 15DAYS DELAY IN FILING. THE ASSESSEE HAS FILED HIS CONDONATION PET ITION THAT HE IS A NON RESIDENT INDIAN WHO WAS OUT OF COUNTRY DURING THE LIMITATION PERIOD. LEARNED DEPARTMENTAL ITA NO. 637/AHD/14 [PARIKH ATULKUMAR RAJNIKANT VS. ITO ] A.Y. 2009-10 - 2 - REPRESENTATIVE IS FAIR ENOUGH IN NOT DISPUTING THE SAID AVERMENTS. WE THUS ACCEPT THE SAME TO BE CORRECT TO CONDUCT THE IMPUGNED DELA Y IN FILING OF THE INSTANT APPEAL. THE CASE IS NOW TAKEN UP ON MERITS. 3. FACTS RELEVANT TO THE IMPUGNED PENALTY ARE IN A VERY BRIEF COMPASS. THERE IS NO DISPUTE THAT THE ASSESSING OFFICER FRAMED A REG ULAR ASSESSMENT ON 26.12.2011 DISALLOWING/ADDING INTEREST PAID ON FDOD ACCOUNT WI TH UTI BANK OF RS.40,714/- ALONGWITH ACCRUED INTEREST OF RS.2,23,356/- ON FDRS , PROFIT ON SHARE TRANSACTION OF RS.39,123/-, INTEREST OF RS.63,293/- ON INVESTMENT WITH TATA MOTORS LTD. AND RS.4,076/- INTEREST RECEIVED ON 15.04.2008 ON FDRS (AGGREGATE OF LATTER HEAD COMING TO RS.3,29,847/-); TOTALING TO RS.3,70,561/- . HE FURTHER INITIATED THE IMPUGNED PENALTY PROCEEDINGS U/S.271(1)(C) OF THE A CT. THE CIT(A) REJECTED ASSESSEES QUANTUM LOWER APPEAL AS WELL. THE ASSES SEE DID NOT CHALLENGE CORRECTNESS OF THE SAID QUANTUM ADDITIONS THEREAFTE R. 4. WE ADVERT TO THE IMPUGNED PENALTY PROCEEDINGS. THE ASSESSING OFFICER PASSED HIS PENALTY ORDER ON 26.06.2012 HOLDING THER EIN THAT THE ASSESSEE HAD BOTH FURNISHED INACCURATE PARTICULARS OF INCOME FOR THE PURPOSE OF ITS CONCEALMENT FROM BEING ASSESSED. HE PLACED A HEAVY RELIANCE ON QUAN TUM DEVELOPMENTS TO IMPOSE THE PENALTY IN QUESTION AMOUNTING TO RS.1LAKH AS UP HELD IN LOWER APPELLATE PROCEEDINGS. 5. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL SUBMISSIONS. IT EMERGES THAT THE ASSESSEES FIRST AND FOREMOST PLEA IS THAT HIS STAY IN INDIA DURING THE RELEVANT PREVIOUS YEAR DOES NOT SATISFY THE RELEVANT PARAMET ERS SET OUT IN SECTION 6(1) OF THE ACT. HIS STAY DETAILS RIGHT FROM 18.01.2016 TO 12. 02.2014 AT DIFFERENT INTERVALS FROM PART OF RECORD AT PAGE 52 OF THE PAP ER BOOK. THE ASSESSEE HAS ALSO FURNISHED HIS PASSPORT COPY IN THE CASE FILE. HIS STAY IN INDIA DURING RELEVANT PREVIOUS YEAR FROM 12.11.2008 TO 30.11.2008 COMES T O 19DAYS ONLY. THERE IS NO DISPUTE THAT THE ABOVE STATUTORY PROVISION PRESCRIB ES SUCH A STAY TO BE 182 DAYS IN THE RELEVANT PREVIOUS YEAR OR 60 DAYS MINIMUM AS PE R CLAUSE (C) THEREIN. THIS CRUCIAL FACT HAS GONE UNREBUTTED FROM REVENUE SIDE. LEARNED DEPARTMENTAL ITA NO. 637/AHD/14 [PARIKH ATULKUMAR RAJNIKANT VS. ITO ] A.Y. 2009-10 - 3 - REPRESENTATIVE VEHEMENTLY CONTENDS AT THIS STAGE TH AT THE ASSESSEE HAS ALREADY BEEN ASSESSED AS A RESIDENT IN QUANTUM PROCEEDINGS. THI S PLEA FAILS TO CONVINCE US AS WE ARE OF THE VIEW THAT THE MERE FACT THAT THE ASSESSE E IS ASSESSED IN QUANTUM DOES NOT PRECLUDE HIM TO RAISE SUCH A LEGAL PLEA IN PENALTY PROCEEDINGS TO THE LIMITED EXTENT OF CHALLENGING CORRECTNESS OF SUCH LATTER PROCEEDIN GS. WE REITERATE THAT QUANTUM AND PENALTY PROCEEDINGS ARE PARALLEL PROCEEDINGS AS HELD IN HONBLE APEX COURTS LANDMARK JUDGMENT IN CIT VS. RELIANCE PETROPRODUCTS 322 ITR 158(SC). WE THUS CONCLUDE THAT THE ASSESSEE HAS BEEN WRONGLY ASSESSE D AS AN INDIAN RESIDENT IN THE IMPUGNED ASSESSMENT YEAR. WE MAKE IT CLEAR THAT OU R INSTANT CONCLUSION IS FOR THE PURPOSE OF INSTANT PENALTY PROCEEDINGS ONLY. WE TH US DIRECT THE ASSESSING OFFICER TO DELETE THE IMPUGNED PENALTY OF RS.1LAKH AS AFFIR MED IN LOWER APPELLATE PROCEEDINGS. 6. THIS ASSESSEES APPEAL IS ALLOWED. [PRONOUNCED IN THE OPEN COURT ON THIS T HE 27 TH DAY OF FEBRUARY, 2018.] SD/- SD/- ( PRAMOD KUMAR ) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 27/02/2018 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )*+ ,--. . /0 / DR, ITAT, AHMEDABAD 1 +23 45 / GUARD FILE. BY ORDER / . // . /0