Shri Maheshbhai M.Reddy, Dist.Anand V. The Income tax Officer,Ward-2, Anand

ITA 663/AHD/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 6076 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 3 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 24-05-2010
• Assessment Year: 2001-2002
• Appeal Filed On: 20-02-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEETA SHAH
• Assessee Lawyers: JAIMIN B SHAH
• Keywords: Unexplained cash credit

Judgement Text

ITA.663/AHD/08 A.Y.2001-02 SHRI MAHESHBHAI M.REDDY. 1 IN THE INCOME_TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI MUKUL SHRAWAT J.M. AND SHRI N.S. SAI NI,A.M. ITA. NO. 663/AHD/2008 (ASSESSMENT YEAR: 2001-02) SHRI MAHESHBHAI M. REDDY, A-1, MANGALMURTI, SANTRAM SOCIETY, KARAMSAD, DIST. ANAND. VS INCOME TAX OFFICER, WARD-2, ANAND. (APPELLANT) (RESPONDENT) PAN: ACDPR 4739 A APPELLANT BY : SHRI JAIMIN B.SHAH, C.A. RESPONDENT BY : SMT. NEETA SHAH, SR.D.R. ( (( ( )/ )/)/ )/ ORDER PER SHRI MUKUL SHRAWAT,J.M. THIS IS AN APPEAL AT THE BEHEST OF THE ASSESSEE WH ICH HAS EMANATED FROM THE ORDER OF C.I.T.(A)-IV, BARODA DATED 27-11-2007. 2. THE APPELLANT IS AGGRIEVED DUE TO PART CONFIRMAT ION OF LEVY OF PENALTY U/S. 271(1) (C) OF THE I.T. ACT. WHILE LEVYING A PENALT Y OF RS.3,08,089/- U/S. 271(1)(C ) VIDE ORDER DATED 30-03-2006 IT WAS OBSERVED BY THE ASSESSING OFFICER THAT ON ACCOUNT OF DISALLOWANCE OF INTEREST EXPENSES, UNEXP LAINED CASH CREDIT AND ON ACCOUNT OF DIFFERENCE IN THE BALANCES IN THE ACCOUN TS CERTAIN ADDITIONS WERE MADE WHICH WERE THE SUBJECT MATTER OF LEVY OF PENAL TY. BEING AGGRIEVED THE MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AUTH ORITY. 3. IN RESPECT OF DISALLOWANCE OF INTEREST IT WAS OB SERVED BY LD. C.I.T.(A) THAT IN QUANTUM APPEAL, THE SAID THAT ADDITION HAD ALREA DY BEEN DELETED. DUE TO THE SAID REASON, IT WAS HELD THAT THE PENALTY COULD NOT BE SUSTAINED. IN RESPECT OF ITA.663/AHD/08 A.Y.2001-02 SHRI MAHESHBHAI M.REDDY. 2 DISCREPANCY IN THE ACCOUNTS OF TWO CONCERNS, LD. C. I.T.(A) WAS OF THE VIEW THAT THE APPELLANT HAD NOT DISCHARGED THE ONUS TO EXPLAI N THE ENTRIES IN ITS BOOKS OF ACCOUNTS, THEREFORE, THE ACTION OF THE A.O. WAS HEL D JUSTIFIED. IN RESPECT OF THE THIRD ADDITION, WHICH WAS RELATED TO A DIFFERENCE I N ACCOUNTS, SINCE THE APPELLANT HAD FAILED TO RECONCILE THE ACCOUNTS, THE ACTION OF LEVY OF PENALTY WAS AFFIRMED. WITH THESE OBSERVATIONS THE SAID APPEAL WAS PARTLY ALLOWED BY LD. C.I.T.(A). 4. NOW BEFORE US THE LD. A.R. SHRI JAIMIN B. SHAH, C.A. HAS FURNISHED THE ORDER OF THE RESPECTED CO-ORDINATE BENCH-D AHMEDABA D IN ASSESSEES OWN CASE FOR A.Y. 2001-02 BEARING I.T.A. NO. 720/AHD/2005 OR DER DATED 9-10-2009 TO DEMONSTRATE THAT ALL THE ADDITIONS WHICH WERE MADE THE BASIS OF CONFIRMATION OF LEVY OF PENALTY STOOD RESTORED BACK TO THE STAGE OF THE A.O. THE LD. A.R. HAS MENTIONED THAT VIDE PARAGRAPH 7 THE ISSUE OF ADDITI ON OF RS.1,30,000/- PERTAINED TO UNEXPLAINED CASH CREDIT HAS BEEN RESTORED FOR CR OSS VERIFICATION. FURTHER, IN RESPECT OF AN ADDITION OF DISCREPANCY IN ACCOUNTS V IDE PARAGRAPH 14 THE ISSUE WAS RESTORED BACK TO THE A.O. IN SHORT, THE ARGUMEN T OF LD. A.R. WAS THAT THE MATTER CAN BE RESTORED BACK TO THE A.O. FOR FRESH D ECISION BECAUSE THE QUANTUM HAS YET TO BE FINALIZED. 5. FROM THE SIDE OF THE REVENUE LD. D.R. HAS STATED THAT TO THE EXTENT THE ADDITIONS HAVE BEEN CONFIRMED PENALTY CAN BE AFFIRM ED AND FOR REST OF THE ADDITIONS BEING A CONSEQUENTIAL PENALTY SHOULD BE I MPOSED BY THE A.O. THEREFORE, THE LD. D.R. HAS PLEADED TO GIVE THE NEC ESSARY DIRECTIONS. 6. WE HAVE HEARD BOTH THE SIDES. THERE IS NOTHING M UCH LEFT FOR OUR DECISION BECAUSE THE ISSUE OF QUANTUM ADDITION HAS ALREADY B EEN RESTORED BACK TO THE STAGE OF THE A.O. BY THE RESPECTED CO-ORDINATE BENC H (SUPRA) WHILE DECIDING THE QUANTUM APPEAL. ACCORDINGLY, THE QUESTION OF LEVY O F PENALTY BEING DEPENDENT ON THE OUTCOME OF THE QUANTUM ADDITION HAS TO BE DECID ED THEREAFTER; RELIANCE CAN BE PLACED ON CIT VS. R. HARIKRISHNA MADRAS 216 ITR- 65 (MAD.) & RADHEY SHYAM JAISWAL 198 ITR-623 (ALL.). IN VIEW OF THIS, WE HER EBY RESTORE THE ISSUE BACK TO ITA.663/AHD/08 A.Y.2001-02 SHRI MAHESHBHAI M.REDDY. 3 THE A.O. FOR DE-NOVO RE-ADJUDICATION. GROUND IN TH IS REGARD MAY BE TREATED AS ALLOWED BUT FOR STATISTICAL PURPOSE. IN THE RESULT, THE APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 31/ 05/2010. SD/- SD/- (N.S. SAINI) (MUKUL SHRAWAT) ACCOUNTANT MEMBER JUDICIAL MEMBER. AHMEDABAD. DATED:31/05/2010. S.A.PATKI. COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNED. 5. THE DR.,ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD.