The DCIT, Circle-1(2), Baroda V. M/s. India Medtronics Pvt.Ltd., Baroda

ITA 660/AHD/2011

• Counselvise Citation: 66020514 RSA 2011
• Duration Of Justice: 3 year(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-03-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 20-03-2014
• Assessment Year: 2002-2003
• Appeal Filed On: 01-03-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL SRDR
• Assessee Lawyers: S R SHAH
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH AHMADABAD , , , , BEFORE SHRI KUL BHARAT , JUDICIAL MEMBER AND , SHRI T.R. MEENA, ACCOUNTANT MEMBER .. , !' ! # $ ! # $ ! # $ ! # $ ITA NO. 660/AHD/2011 ASSESSMENT YEAR :2002-03 THE DCIT, CIRCLE-1(2), FIRST FLOOR, AAYAKAR BHAVAN, RACE COURSE CIRCLE, BARODA. V/S . INDIA MEDTRONICS PVT. LTD. 919/2, GIDC INDUSTRIAL ESTATE, MAKARPURA, BARODA PAN NO. A AACI4227Q (APPELLANT) .. (RESPONDENT) %& ' ( ! / BY APPELLANT SHRI P. L. KUREEL, SR.D.R. )*%& ' ( ! /BY RESPONDENT SHRI S. R. SHAH, A.R. +, ' ' /DATE OF HEARING 20.03.2014 -./ ' ' /DATE OF PRONOUNCEMENT 21.03.2014 O R D E R PER : SHRI T.R.MEENA, ACCOUNTANT MEMBER THIS IS AN APPEAL AT THE BEHEST OF REVENUE WHICH HA S EMANATED FROM THE ORDER OF CIT(A)-V, BARODA, DATED 31.12.201 0 FOR ASSESSMENT YEAR 2002-03. THE SOLE GROUND OF REVENUES APPEAL IS AG AINST DELETING THE PENALTY OF RS.93,35,000/- LEVIED U/S. 271(1)(C) ON ADDITION/DISALLOWANCE OF LOWER VALUATION OF CLOSING STOCK, PROVISION OF COMM ISSION, INVENTORY WRITE OFF, SALES PROMOTION EXPENSES & EXPENSE ON FOREIGN TRIPS. 2. THE ASSESSMENT IN THIS CASE WAS COMPLETED ON 26. 12.2006 BY THE A.O. MADE ADDITION UNDER THE HEAD DIFFERENCE E.G. CLOSING STOCK OF ITA NO. 660/AHD/11 A.Y. 02-03 DCIT VS. INDIA MEDTRONICS PVT. LTD. PAGE 2 RS.36,34,884/-, PROVISION FOR COMMISSION OF RS.1,00 ,47,540/-, ADDITION ON ACCOUNT OF UNREALIZED FOREIGN EXCHANGE LOSS AT RS.1 ,71,42,664/-, ADDITION ON ACCOUNT OF SALES PROMOTION EXPENSES AT RS.6,06,5 03/-, DISALLOWANCE OF EXPENDITURE INCURRED IN RESPECT OF FOREIGN TRIPS OF NON-EMPLOYEES AT RS.19,71,881/- & ADDITION ON ACCOUNT OF INVENTORY W RITE OFF OF RS.1,10,21,248/- WAS MADE AND PENALTY PROCEEDING U/ S. 271(1)(C) WAS INITIATED FOR FURNISHING INACCURATE PARTICULARS LEA DING TO CONCEALMENT OF INCOME. BEFORE IMPOSING THE PENALTY, LD. A.O. GAVE REASONABLE OPPORTUNITY OF BEING HEARD, WHICH WAS AFFORDED BY T HE ASSESSEE. AFTER CONSIDERING THE CIT(A) ORDER, THE REMAINING CONFIRM ED ADDITIONS WERE CONSIDERED FOR IMPOSITION OF PENALTY. THE EXPLANAT ION FILED BY THE ASSESSEE, IT WAS HELD THAT THE ASSESSEE HAD CONCEAL ED THE INCOME TO THE TUNE OF RS.2,61,46,115/- ON WHICH 100% PENALTY AT R S.93,35,000/- ON TAX SOUGHT TO BE EVADED, WAS IMPOSED BY THE A.O. 3. THE ASSESSEE CARRIED THE MATTER BEFORE THE CIT( A) WHO HAD ALLOWED THE APPEAL. 4. NOW THE REVENUE IS BEFORE US. LD. SR. D.R. SUPP ORTED THE ORDER OF THE A.O. HOWEVER, LD. A.R. SUBMITTED THAT QUANTUM ADDITION HAS BEEN SET ASIDE BY THE HONBLE B BENCH IN ITA NOS. 135 & 24 3/AHD/2008 FOR A.Y. 2002-03 TO THE ASSESSING OFFICER FOR FRESH ADJUDICA TION. THEREFORE, HE REQUESTED THAT PENALTY ORDER MAY ALSO BE SET ASIDE TO THE A.O. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE CO-ORDINATE B BENCH IN ASSESSEES CA SE FOR A.Y. 02-03 VIDE ITA NO. 660/AHD/11 A.Y. 02-03 DCIT VS. INDIA MEDTRONICS PVT. LTD. PAGE 3 ORDER DATED 28 TH JULY, 2011, HAS SET ASIDE THE PROCEEDING FOR A FRE SH ADJUDICATION IN QUANTUM ADDITION. WHEN QUANTUM ADD ITION IS NOT IN EXISTENCE, RESULTANTLY, THE PENALTY ORDER DOES NOT SURVIVE. ACCORDINGLY, WE SET ASIDE THE CIT(A) ORDER AND A.O. IS FREE TO INIT IATE THE PENALTY PROCEEDING AT THE TIME OF FRESH ADJUDICATION. 6. IN THE RESULT, REVENUES APPEAL IS ALLOWED FOR S TATISTICAL PURPOSE. THIS ORDER PRONOUNCED IN OPEN COURT ON 21/03/2014 SD/- SD/- ( KUL BHARAT ) (T.R. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER TRUE COPY S.K.SINHA !0 !0 !0 !0 ' '' ' )1 )1 )1 )1 2!1/ 2!1/ 2!1/ 2!1/ / COPY OF ORDER FORWARDED TO:- 1. %& / APPELLANT 2. )*%& / RESPONDENT 3. 6 / CONCERNED CIT 4. 6- / CIT (A) 5. 1: )+ , , / DR, ITAT, AHMEDABAD 6. :<= >? / GUARD FILE. BY ORDER/ !0 !, @/ B , $