M/s. Sachidanand Pulse Mills, Anand V. The Income tax Officer,Ward-4, Anand

ITA 74/AHD/2010

• Counselvise Citation: 7420514 RSA 2010
• Duration Of Justice: 2 year(s) 10 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 06-11-2012
• Assessment Year: 2000-2001
• Appeal Filed On: 08-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K SINGH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, AHMEDABAD BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER I.T.A. NO. 74/ AHD/2010 (ASSESSMENT YEAR 2000-01) M/S. SACHIDANAND PULSE MILLS., BORSAD APPROACH ROAD, VALSAD VS. ITO, WARD 4, ANAND PAN/GIR NO. : AAGFS6276F (APPELLANT) .. (RESPONDENT) APPELLANT BY: NONE RESPONDENT BY: SHRI D K SINGH, SR. DR DATE OF HEARING: 06.11.2012 DATE OF PRONOUNCEMENT: 07.12.2012 O R D E R PER SHRI A. K. GARODIA, AM:- THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORD ER OF LD. CIT(A) IV, BARODA DATED 29.10.2009 FOR THE ASSESSMENT YEAR 2000-01. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: BECAUSE H'BLE CIT (A) ERRED IN CONFIRMING PENALTY LEVIED U/S 271(1) ( C ) OF RS.23,02,326/- FOR DIFFERENCE IN TH E STOCK BETWEEN THE STOCK STATEMENT GIVEN TO THE BANK WITH ONLY INT ENTION TO CONTINUALLY ENJOY THE OVERDRAFT FACILITY ALREADY AV AILED FROM CHAROTAR NAGRIK SAHKARI BANK LTD, VASAD BRANCH AGAI NST HYPOTHECATION OF STOCK AND THE STOCK AS PER BOOKS O F ACCOUNTS EVEN THOUGH THE BOOKS OF ACCOUNTS ARE AUDITED AND STOCK AS PER BOOKS OF ACCOUNTS ARE AS PER THE STOCK RECORDS MAINTAINED BY YOUR APPELLANT AND ALSO CONTROLLED BY THE MAMLATDAR OFFICE. BECAUS E H'BLE CIT (A) ERRED IN IGNORING THE FACT THAT IT IS AN ESTABL ISHED LAW THAT I.T.A.NO. 74 /AHD/2010 2 PENALTY CANNOT BE LEVIED WHEN REVENUE DOES NOT PLAC E COGENT MATERIAL ON RECORD WHICH WOULD SHOW THAT THE ADDITI ON MADE INDEED REPRESENT INCOME. BECAUSE H'BLE CIT(A) ERRED IN APPLYING THE RATIO OF DHARMENDRA PROCESSORS & OTHERS (2008), 306 ITR 277 . SINCE YOU R APPELLANT HAS NOT CONCEALED ANY INCOME OR FURNISHED ANY FALSE PARTICULARS BEFORE L'ND A.O. THEREFORE THERE IS NO QUESTION OF MENS REA OR WILLFUL CONCEALMENT. 2. AT THE VERY OUTSET, IT WAS SUBMITTED BY THE LD. A.R. THAT THIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNA L ORDER IN THE ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2001-02 IN I.T.A.N O. 75/AHD/2010 DATED 28.09.2012. HE SUBMITTED A COPY OF THIS TRIB UNAL DECISION. HE ALSO SUBMITTED THAT THE ORDER OF LD. CIT(A) IS COMBINED ORDER FOR THE ASSESSMENT YEARS 2000-01 AND 2001-02 AND IN ASSESSM ENT YEAR 2001-02, THE TRIBUNAL HAS ALREADY DELETED THE PENALTY AS PER THIS TRIBUNAL ORDER. AS AGAINST THIS, LD. D.R. SUPPORTED THE ORDERS OF AUTH ORITIES BELOW. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW AND THE TRIBUNAL DECISION CITED BY THE LD. A.R. OF THE ASSE SSEE. WE FIND THAT THIS IS NOTED BY LD. CIT(A) IN THE IMPUGNED ORDER THAT T HE FACTS ARE IDENTICAL IN PARA 2 OF HIS ORDER. HE ALSO NOTED THAT THE A.O . MADE ADDITION IN BOTH THESE YEARS ON ACCOUNT OF DIFFERENCE IN STOCK AS PE R BOOKS AND AS PER STOCK STATEMENT GIVEN TO THE BANK. IN ASSESSMENT Y EAR 201-02, THE TRIBUNAL HAS DELETED THE PENALTY AND IN HOLDING SO, THE TRIBUNAL HAS FOLLOWED THE JUDGEMENT OF HONBLE CALCUTTA HIGH COU RT RENDERED IN THE CASE OF BHARAT MINERALS SALES CORPORATION AS REPORT ED IN 253 ITR 419. SINCE, NO DIFFERENCE IN THE FACTS COULD BE POINTED OUT BY THE LD. D.R., WE FIND NO REASON TO TAKE CONTRARY VIEW IN THE PRESENT YEAR AND HENCE, I.T.A.NO. 74 /AHD/2010 3 RESPECTFULLY FOLLOWING THE TRIBUNAL ORDER IN ASSESS EES OWN CASE FOR THE ASSESSMENT YEAR 2001-02, WE DELETE THE PENALTY IN T HE PRESENT YEAR ALSO. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. 5. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. (KUL BHARAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 03.12.12 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 04.12.12.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 07/12/2012 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.7/12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 07/12/2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .