The ITO, Ward-4(4), Ahmedabad V. Mark Leasing & Finance Ltd., Ahmedabad

ITA 719/AHD/2011

• Counselvise Citation: 71920514 RSA 2011
• Duration Of Justice: 3 year(s) 2 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-06-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 23-05-2014
• Assessment Year: 1999-2000
• Appeal Filed On: 07-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL
• Assessee Lawyers: WRITTEN SUBMISSIONS
• Section: 143(3)

Judgement Text

, , , , B, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, B BENCH . .. . . .. . , !' !' !' !', , , , #$ #$ #$ #$ # ## #. .. .# ## #. . . . % % % %, , , , &' ( & ' &' ( & ' &' ( & ' &' ( & ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND N.S. SAINI, ACCOUNTANT MEMBER) ITA NO.719/AHD/2011 [ASSTT.YEAR : 1999-2000] ITO, WARD-4(4) AHMEDABAD. /VS. MARK LEASING & FINANCE LTD. 36, HIRABHAI MARKET, DIWAN BALLUBHAI MARG KANKARIA, AHMEDABAD. PAN : AAACM 8010 H ( (( (*+ *+ *+ *+ / APPELLANT) ( (( (, ,, ,-*+ -*+ -*+ -*+ / RESPONDENT) ( . / &/ REVENUE BY : SHRI P.L. KUREEL, SR.DR 12 . / &/ ASSESSEE BY : WRITTEN SUBMISSIONS 3 . 24'/ DATE OF HEARING : 23 RD MAY, 2014 567 . 24'/ DATE OF PRONOUNCEMENT : 06-06-2014 &8 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THIS APPEAL BY THE REVENUE FOR THE ASSESSMENT YEAR 1999-2000 IS DIRECTED AGAIN ST THE ORDER OF THE CIT(A). 2. AT THE TIME OF HEARING, NONE APPEARING ON BEHALF OF THE ASSESEE. HOWEVER, THE ASSESSEE HAS FILED WRITTEN SUBMISSION BEFORE THE TRIBUNAL WITH A REQUEST TO CONSIDER THE SAME WHILE DECIDING THE APPEAL OF THE REVENUE. ITA NO.719/AHD/2011 -2- 3. THE GROUNDS OF THE APPEAL OF THE REVENUE ARE AS UNDER: 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY OF RS.3,48,760/- LEVIED BY THE AO WITHOUT P ROPERLY APPRECIATING THE FACTS AND MATERIALS BROUGHT ON REC ORD BY THE AO. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD.CIT(A) OUGHT TO HAVE UPHELD THE DECISION OF THE AO. 4. THE LEARNED DR SUBMITTED THAT THE ASSESSEE WAS G UILTY OF FILING OF INACCURATE PARTICULARS OF INCOME AND THE ADDITION H AS BEEN CONFIRMED IN APPEAL BEFORE THE CIT(A), AND THEREFORE, THE PENALT Y WAS RIGHTLY IMPOSED ON THE ASSESSEE UNDER SECTION 271(1)(C) OF THE ACT. HE REFERRED TO RELEVANT PORTION OF THE PENALTY ORDER OF THE AO IN SUPPORT O F THE CASE OF THE REVENUE. 5. WE HAVE CONSIDERED SUBMISSIONS OF THE LEARNED DR AND PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND ALSO WRITTEN SU BMISSIONS FILED BY THE ASSESSEE. WE FIND THAT IN THE FIRST ROUND OF LITIG ATION IN THE ASSESSMENT CASE OF THE ASSESSEE, THE CIT(A) VIDE ORDER DATED 1 5.1.2003 DELETED THE ADDITION OF RS.9,96,455/- ON ACCOUNT OF CURRENT LIA BILITIES. THE DEPARTMENT PREFERRED AN APPEAL TO THE TRIBUNAL, AND THE TRIBUN AL HAS RESTORED THE MATTER TO THE FILE OF THE AO TO REPROCESS THE ASSES SMENT ON THE ISSUE OF AN AMOUNT OF CURRENT LIABILITIES OF RS.9,96,455/- AFT ER VERIFICATION OF THE LIABILITIES. IN THE ASSESSMENT FRAMED UNDER SECTIO N 143(3) R.W.S. SECTION 254, THE ADDITION OF RS.9,96,455/- ON ACCOUNT OF NO N-GENUINE CREDIT BALANCES WAS AGAIN ADDED AND THE SAME WAS CONFIRMED BY THE CIT(A) VIDE HIS ORDER DATED 28.11.2008. THE TRIBUNAL ALSO CONF IRMED THE SAID ADDITION. WE FIND THAT THE CIT(A) AND THE TRIBUNAL HAVE CONFI RMED THE SAID ADDITION IN THE SECOND ROUND OF LITIGATION ON THE BASIS OF A BSENCE OF CORRECT ADDRESS OF THE PARTIES AND IN THE ABSENCE OF PAN THEREOF. WE FIND THAT THE CIT(A) IN THE IMPUGNED ORDER HAS DELETED THE PENALTY UNDER SECTION 271(1)(C) ON ITA NO.719/AHD/2011 -3- THE GROUND THAT THERE WAS CLEAR DIFFERENCE OF OPINI ON BETWEEN THE TWO CIT(A)S BECAUSE IN THE FIRST ROUND OF LITIGATION, THE ADDITION MADE BY THE AO ON THIS COUNT HAS BEEN DELETED WHEREAS IN THE SE COND ROUND OF LITIGATION THE SAME HAS BEEN CONFIRMED. THE CIT(A) HAS OBSERVED THAT IT IS SETTLED THAT WHEN THERE WERE TWO DIVERGENT OPINIONS ARE POSSIBLE ON AN ISSUE, PENALTY UNDER SECTION 271(1)(C) COULD NOT BE LEVIED. THE CIT(A) HAS OBSERVED THAT THE ASSESSEE HAS OFFERED AN EXPLA NATION REGARDING SUNDRY CREDITORS WHICH WAS NOT FOUND ACCEPTABLE BY THE AO, AND THAT THE AO HAS ACCEPTED THE LEASE RENTALS RECEIVED FROM THE SAME S UNDRY CREDITORS PARTIES. IN THESE FACTS OF THE CASE, WE ARE OF THE VIEW THAT THERE IS NO MISTAKE IN THE ORDER OF THE CIT(A) WHILE DELETING THE PENALTY UNDE R SECTION 271(1)(C) OF THE ACT, AS THE ASSESSEE HAS DISCLOSED ALL THE MATE RIAL FACTS BEFORE THE AO AND THERE WERE CLEARLY TWO DIVERGENT OPINIONS IN SE PARATE TWO ROUNDS OF LITIGATION BEFORE THE CIT(A)S AND THE LEASE RENTAL S RECEIVED FROM THE SAME SUNDRY CREDITOR PARTIES WERE ACCEPTED BY THE AO. A CCORDINGLY, THE ORDER OF THE CIT(A) IS CONFIRMED AND THE GROUNDS OF THE R EVENUE ARE DISMISSED. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( # ## #. .. .# ## #. . . . % % % % /N.S.SAINI) &' ( &' ( &' ( &' ( /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD