Ram Adhar Chaudhary, Basti V. Income Tax Officer, Basti

ITA 741/LKW/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70573 (ITAT-LUCKNOW)
• Duration Of Justice: 1 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 12-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y P SRIVASTA VA
• Assessee Lawyers: H RAHMAN

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.741/LKW/2013 ASSESSMENT YEAR : 2009 - 2010 SHRI RAM ADHAR CHAUDHARY, MUNDERWA, LABNAPUR, BASTI. PAN:AILPC7036P VS. INCOME TAX OFFICER, BASTI. (APPELLANT) (RESPONDENT) APPELLANT BY SHRI H. RAHMAN, ADVOCATE RESPONDENT BY SHRI Y. P. SRIVASTAVA, D. R. DATE OF HEARING 18/12/2013 DATE OF PRONOUNCEMENT 0 7 / 0 1/201 4 O R D E R PER A. K. GARODIA, A.M. THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORDER OF LEARNED CIT ( A) - II, LUCKNOW DATED 19/09/2013 FOR THE ASSESSMENT YEAR 2009 - 2010. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) - I, LUCKNOW IS NOT JUSTIFIED IN CONFIRMING THE ORDER UNDER SECTION 271(1 ) ( C) DATED 21 - 6 - 2012 PASSED BY THE LEARNED ASSESSING OFFICER LEVYING A PENALTY OF RS.75,000/ - . 2. THE LEARNED ASSESSING OFFICER OBTAINED THE APPROVAL OF THE JOINT COMMISSIONER OF INCOME - TAX, GONDA RANGE, GONDA WHO VIDE HIS LETTER F.NO. PENALTY/APPROVAL/JCIT//GONDA/2012 - 13 2 DATED 20 - 6 - 2012 MECHANICALLY GAVE HIS APPROVAL WITHOUT TAKING INTO CONSIDERATI ON THE JUDICIAL DECISIONS OF THE HIGH COURTS AND THE HON'BLE SUPREME COURT ON THE FINDINGS OF FACTS GIVEN IN THE ASSESSMENT ORDER. 3. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT THE PENALTY HAS BEEN IMPOSED BY THE ASSESSING OFFICER ON ADDITION MADE ON ESTIMATED BASIS, WHICH IS NOT JUSTIFIED. 4. LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHO RITIES BELOW. WE FIND THAT THREE ADDITIONS WERE MADE BY THE ASSESSING OFFICER. THE FIRST ADDITION MADE BY HIM IS REGARDING ALLEGED SUPPRESSED SALE VALUE OF HUSK. THE ASSESSING OFFICER HAS STATED IN THE ASSESSMENT ORDER THAT THE ASSESSEE HAS DISCLOSED YI ELD OF HUSK AT ABOUT 11% BUT AS PER ASSESSING OFFICER , NORMAL YIELD OF HUSK IS 20 TO 22%. THEREAFTER, THE ASSESSING OFFICER HAS ADOPTED YIELD PERCENTAGE OF 20% AND MADE THE ADDITION. SIMILARLY, THE SECOND ADDITION MADE BY THE ASSESSING OFFICER IS THAT TH E ASSESSEE HAS PURCHASED PADDY ON COMMISSION BASIS. THEREAFTER, IT IS ALLEGED BY THE ASSESSING OFFICER THAT KUTAI RATE OF RS.10/ - PER QUINTAL FOR 5,948 QUINTAL OF PADDY AT RS.59,480/ - HAS NOT BEEN SHOWN BY THE ASSESSEE, WHICH IS ADDED BACK BY HIM. THE TH IRD ADDITION MADE BY THE ASSESSING OFFICER IS THAT THE ASSESSEE HAS DEBITED RS.1,40,844/ - AS VAT IN TRADING ACCOUNT. THE ASSESSING OFFICER HAS STATED THAT THE VAT DEDUCTED IS NOT AN ITEM OF DEDUCTION UNDER TRADING ACCOUNT. FOR THESE THREE ADDITIONS, THE ASSESSING OFFICER IMP OSED PENALTY , WHICH IS CONFIRMED BY LEARNED CIT(A) AND NOW , THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 3 6. FROM THE NATURE OF ADDITIONS MADE BY THE ASSESSING OFFICER, WE FIND THAT FIRST TWO ADDITIONS ARE PURELY ON ESTIMATE BASIS AND THEREFORE, FOR SUCH ESTIMATED ADDITIONS , PENALTY IS NOT JUSTIFIED. REGARDING THIRD ADDITION, WE F IND T HAT THE REASONING GIVEN BY THE A.O. IS NOT CLEAR AND IT IS VAGUE . BY THAT AS IT MAY BUT WE ARE OF THE CONSIDERED OPINION THAT THE PENALTY IN THIS REGAR D IS ALSO NOT JUSTIFIED BECAUSE THE ADDITION MAY BE JUSTIFIED BUT IT COULD NOT BE ESTABLISHED BY THE A.O. THAT IT AMOUNTS TO CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS. WE, THEREFORE, DELETE THE ENTIRE PENALTY IN THE FACTS OF THE PRESENT CASE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUN IL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 7 T H JANUARY , 201 4 . *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR