The ACIT,Ahmedabad Circle-3, Ahmedabad V. M/s. Ajmera & Shah Associates, Ahmedabad

ITA 692/AHD/2009

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 2226 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 11 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-02-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 07-02-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 03-03-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K MADHUSUDAN SRDR
• Assessee Lawyers: J T SHAH
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B AHMEDABAD BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER, AND SHRI D. C. AGRAWAL, ACCOUNTANT MEMBER ITA NO.692/AHD/2009 ASSESSMENT YEAR:2003-04 DATE OF HEARING:7.2.11 DRAFTED:7.1.11 ACIT, CIRCLE-3, 5 TH FLOOR INSURANCE, BUILDING, ASHRAM ROAD, AHMEDABAD V/S . M/S. AJMERA & SHAH ASSOCIATES, 501, CHINUBHAI CENTER, ASHRAM ROAD, AHMEDABAD PAN NO.AACFA7085M (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI K. MADHUSUDAN, SR-DR RESPONDENT BY:- SHRI J.T. SHAH, AR O R D E R PER MAHAVIR SINGH, JUDICIAL MEMBER:- THIS APPEAL BY THE REVENUE IS ARISING OUT OF THE O RDER OF COMMISSIONER OF INCOME-TAX(APPEALS)-VII, AHMEDABAD IN APPEAL NO. CI T(A)-VII/CIR.3/1/ 2008-09 DATED 12-11-2008. THE ASSESSMENT WAS FRAMED BY ACIT , CIRCLE-3, AHMEDABAD U/S 143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REF ERRED TO AS THE ACT) VIDE HIS ORDER DATED 27-03-2006 FOR ASSESSMENT YEAR 2003-04. THE P ENALTY UNDER DISPUTE WAS LEVIED BY ACIT, CIRCLE-3, AHMEDABAD U/S 271(1)(C) O F THE ACT, VIDE HIS ORDER DATED 27-03-2008. 2. THE ONLY ISSUE IN THIS APPEAL OF REVENUE IS AGAI NST THE ORDER OF CIT(A) IN CANCELING THE PENALTY LEVIED BY ASSESSING OFFICER U /S.271(1)(C) OF THE ACT. FOR THIS REVENUE HAS RAISED THE FOLLOWING GROUND NO.1 :- 1. THE CIT(A) ERRED IN LAW AND ON FACTS IN CANCELI NG THE PENALTY OF RS.3,47,956/- LEVIED U/S.271(1)(C) OF THE I.T. ACT. ITA NO.692/AHD/2009 A.Y. 2003-04 ACIT CIR-3, ABD V. M/S. AJMERA & SHAH ASSOCIATES PAGE 2 3. THE BRIEF FACTS LEADING TO THE ABOVE ISSUE ARE T HAT ASSESSING OFFICER LEVIED THE PENALTY ON THE DISALLOWANCE ON SUB-BROKER EXPENSES CONFIRMED BY CIT(A). THE CIT(A) DELETED THE PENALTY LEVIED BY AO AND WE FIND THAT THE CIT(A)S FINDING IN PARA- 4 & 5, IS NOT A SPEAKING FINDINGS, WHICH READ AS UNDER:- 4. IN VIEW OF THE ABOVE DECISIONS OF THE HONBLE C OURTS IT IS PLEADED THAT THE APPELLANTS CLAIM IS BONAFIDE WHICH HAS NOT BEEN AL LOWED BY THE A.O AND THE CIT(A). THEREFORE, THE SAME CANNOT BE REASON FOR LE VY OF PENALTY. 5. THE OBSERVATIONS OF THE A.O ARE VERIFIED. THE SU BMISSIONS MADE BY THE A.R. HAVE BEEN PERUSED. THE CASE LAWS RELIED UPON B Y THE A.R ARE EXAMINED. HAVING VERIFIED THE FACTS AND CIRCUMSTANCES OF THE CASE, I AM OF THE VIEW THAT THE PENALTY LEVIED CANNOT BE SUSTAINED. AGGRIEVED, REVENUE CAME IN APPEAL BEFORE THE TRIBUN AL. 4. AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE FILED COPY OF TRIBUNALS ORDER IN QUANTUM APPEAL IN ITA NO.1057/AHD/2006 DATED 08-04-2010 , WHEREIN THE TRIBUNAL HAS SET ASIDE THIS ISSUE TO THE FILE OF THE ASSESSI NG OFFICER, ON WHICH PENALTY IS IN DISPUTE AND IT IS HELD IN PARA-6 AS UNDER:- 6. FACTS BEING IDENTICAL, RESPECTFULLY FOLLOWING T HE ABOVE QUOTED ORDER OF THE TRIBUNAL, WE RESTORE THE MATTER BACK TO THE FILE OF THE LEARNED ASSESSING OFFICER TO REDECIDE THIS ISSUE AFTER CONSIDERING BY E-LAW 218 OF THE STOCK EXCHANGE AHMEDABAD, AFTER GIVING PROPER AND REASONA BLE OPPORTUNITY TO THE ASSESSEE. HE IS FURTHER DIRECTED TO ALLOW THE COMMI SSION ONLY TO THE EXTENT IT IS PERMISSIBLE IN ACCORDANCE WITH BYE-LAW 218 OF TH E AHMEDABAD STOCK EXCHANGE. THUS, THIS GROUND IS ALLOWED FOR STATISTI CAL PURPOSES.. 5. AS THE ISSUE HAS BEEN SET ASIDE TO THE FILE OF T HE ASSESSING OFFICER, THE PENALTY LEVIED U/S.271(1) OF THE ACT WILL NOT SURV IVE BUT IN CASE THE ASSESSING OFFICER DURING THE COURSE OF SET ASIDE ASSESSMENT P ROCEEDINGS FINDS ANYTHING, HE MAY INITIATE PENALTY PROCEEDINGS AFRESH AS PRE THE PROVISIONS OF THE ACT. 6. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 07/02/2011 SD/- SD/- (D.C.AGRAWAL) (MAHAVIR SIN GH) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, DATED : 07/02/2011 *DKP ITA NO.692/AHD/2009 A.Y. 2003-04 ACIT CIR-3, ABD V. M/S. AJMERA & SHAH ASSOCIATES PAGE 3 COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)-VII, AHMEDABAD 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD