The ACIT, Circle-3, Ahmedabad V. M/s. Gamdiwala Dairy, Ahmedabad

ITA 753/AHD/2007

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 6450 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-04-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 22-04-2010
• Assessment Year: 2001-2002
• Appeal Filed On: 15-02-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJA RAM SAH
• Assessee Lawyers: VIJAY RANJAN
• Keywords: Depreciation
• Section: 40A(3); 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI N.S.SAINI, ACCOUNTANT MEMBER DATE OF HEARING: 22.04.10 DRAFTED ON: 22.04.1 0 ITA NO.753/AHD/2007 ASSESSMENT YEAR : 2001-2002 A.C.I.T., CIRCLE-3, 5 TH FLOOR, INSURANCE BUILDING, ASHRAM ROAD, AHMEDABAD. VS. M/S. GAMDIWALA DAIRY SANKADI SHERI, MANEK CHOWK, AHMEDABAD. PAN/GIR NO. : AADFG5260B (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI RAJA RAM SAH, SR. D.R. RESPONDENT BY: SHRI VIJAY RANJAN A.R. O R D E R PER N.S.SAINI , ACCOUNTANT MEMBER :- THIS IS AN APPEAL FILED BY THE REVENUE AGAINST TH E ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-VII , AHMEDABAD, DATED 20.11.2006. 2. THE SOLE ISSUE INVOLVED IN THIS APPEAL IS THAT THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) WAS NOT JUSTIFI ED IN CANCELLING THE PENALTY OF RS.9,74,710/- LEVIED UNDER SECTION 271(1 )(C) OF THE ACT. 3. THE BRIEF FACTS ARE THAT THE ASSESSEE FILED RET URN OF INCOME ON 31.10.2001 SHOWING NIL INCOME. THE ASSESSMENT WAS C OMPLETED UNDER SECTION 143(3) OF THE ACT ON 29.03.2004 AT AN INCOM E OF RS.74,44,880/- BY MAKING ADDITION FOR PAYMENTS MADE IN CASH UNDER SEC TION 40A(3) @ 20% OF RS.2,75,93,577/- AMOUNTING TO RS.55,18,715/-, G ROSS PROFIT ADDITION OF - 2 - RS.18,80,889/- AND DISALLOWANCE OF DEPRECIATION ON MOTOR RS.1,06,480/-. ON APPEAL FILED BY THE ASSESSEE, THE LEARNED COMMIS SIONER OF INCOME TAX(APPEALS) CONFIRMED ADDITION UNDER SECTION 40A(3 ) OF RS.6,67,603/-, AND GROSS PROFIT ADDITION OF RS.18,18,889/- AND DEL ETED THE DISALLOWANCE OF DEPRECIATION ON MOTOR CAR RS.1,06,480/-. 4. THEREAFTER, THE LEARNED ASSESSING OFFICER LEVIE D PENALTY OF RS.9,74,710/- UNDER SECTION 271(1)(C) OF THE ACT FO R FURNISHING OF INACCURATE PARTICULARS OF INCOME BY THE ASSESSEE IN RESPECT OF DISALLOWANCE UNDER SECTION 40A(3) TO THE EXTENT CONFIRMED BY THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) AT RS.6,67,603/ - AND GROSS PROFIT ADDITION OF RS.18,18,889/- CONFIRMED BY THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS). 5. THE ASSESSEE PREFERRED FURTHER APPEAL TO THE TR IBUNAL AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) AND THE TRIBUNAL VIDE ITS ORDER DATED 12.03.2010, PASSED IN ITA NOS.1497 & 1591/AHD/2005 FOR ASSESSMENT YEAR 2001-02 DELETED T HE ADDITION SUSTAINED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ON ACCOUNT OF THE ADDITION MADE UNDER SECTION 40A(3) R S.6,67,603/- AND GROSS PROFIT ADDITION OF RS.18,18,889/-. 6. ON THE ABOVE FACTS, THE CONTENTION OF THE ASSES SEE IS THAT AS THE BASIS OF LEVY OF PENALTY DOES NOT SURVIVE AFTER THE PASSING OF THE ORDER OF THE TRIBUNAL, THEREFORE, THE PENALTY LEVIED SHOU LD BE DELETED. 7. THE LEARNED DEPARTMENTAL REPRESENTATIVE ALSO AG REED WITH THE SUBMISSIONS MADE BY THE ASSESSEE. 8. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE P ARTIES AND THE MATERIALS AVAILABLE ON RECORD, WE FIND THAT THE ADD ITION SUSTAINED BY THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) UNDER S ECTION 40A(3) - 3 - RS.6,67,603/- AND GROSS PROFIT ADDITION OF RS.18,18 ,889/- WAS DELETED BY THE TRIBUNAL ON AN APPEAL FILED BY THE ASSESSEE VID E ITS ORDER PASSED ON 12.03.2010 IN ITA NOS. 1497 & 1591/AHD/2005 FOR ASS ESSMENT YEAR 2001-02. THUS, THE BASIS ON WHICH THE PENALTY WAS LEVIED NOT SURVIVING AFTER THE ORDER OF THE TRIBUNAL DELETING THE ADDITI ON THE PENALTY LEVIED OF RS.9,74,710/- UNDER SECTION 271(1)(C) ALSO DOES NOT SURVIVE. THEREFORE, WE CONFIRM THE ORDER OF THE LEARNED COMMISSIONER OF IN COME TAX(APPEALS) IN CANCELLING THE PENALTY OF RS.9,74,710/- AND DISM ISS THE APPEAL OF THE REVENUE. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE H EARING IN THE PRESENCE OF THE PARTIES ON 22 ND DAY OF APRIL, 2010. SD/- SD/- (BHAVNESH SAINI) ( N.S. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; ON THIS 22 ND APRIL, 2010 PARAS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-VII, A HMEDABAD. 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD DATE INITIALS 1. DRAFT DICTATED ON 22.04.2010 --------------- ---- 2. DRAFT PLACED BEFORE AUTHORITY 22.04.2010 ----- -------------- 3. DRAFT PROPOSED & PLACED 22.04.2010 ----------- -------- JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED 22.04.2010 --------- ---------- JM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO P.S 22.04.2010 --------- ----------- 6. KEPT FOR PRONOUNCEMENT ON ---------------- --- ----------------- 7. FILE SENT TO THE BENCH CLERK 22.04.2010 ------- ------------- 8. DATE ON WHICH FILE GOES TO THE ---------------- -------------------- 9. DATE OF DISPATCH OF ORDER ---------------- -- -------------------