ITO, SRIGANGANAGAR V. M/s. Krishi Upaj Mandi Samiti, SRIKARANPUR

ITA 79/JODH/2014

• Counselvise Citation: 7923314 RSA 2014
• Duration Of Justice: 3 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-05-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 19-05-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 14-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Assessee Lawyers: RAKESH GUPTA
• Keywords: Charitable institution

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENC H : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO.79/JODH/2014 (A.Y. 2008-09) ITO, WARD-2, VS. M/S. KRIS HI UPAJ MANDI SAMITI, SRIGANGANAGAR. DHAN MANDI, SRIKARANPUR. PAN NO. AABTK 0299 A (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAKESH GUPTA. DEPARTMENT BY : SHRI N.A. JOSHI - D.R. DATE OF HEARING : 19/05/2014. DATE OF PRONOUNCEMENT : 19/05/2014. O R D E R PER N.K. SAINI, A.M. THIS IS AN APPEAL BY THE DEPARTMENT AGAINST THE OR DER DATED 26/11/2013 OF LD. CIT(A), BIKANER. THE ONLY GROUND RAISED IN THIS APPEAL READS AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETING OF RS. 28,73,000/- IMPOSED U/S 271(1)(C ) I.T. ACT, 1961 2 THE GRIEVANCE OF THE DEPARTMENT IN THIS APPEAL REL ATES TO THE DELETION OF PENALTY OF RS. 28,73,000/- IMPOSED BY T HE ASSESSING OFFICER 2 UNDER SECTION 271(1)(C) OF THE I.T. ACT, 1961 (HERE INAFTER REFERRED TO AS THE ACT IN SHORT). 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE FILED RETURN OF INCOME ON 22/09/2008 AND REVISED THE RETURN ON 25/0 9/2009 CLAIMING ITS STATUS AS CHARITABLE TRUST. THE ASSESSEE HAD INCUR RED RS. 1,15,32,719/- DURING THE YEAR AND CLAIMED THE SAME AS APPLICATION OF INCOME AGAINST GROSS RECEIPTS OF RS. 1,71,68,476/-. THE ASSESSING OFFICER MADE THE ADDITION OF RS. 56,35,757/- TO THE TOTAL INCOME OF THE ASSESSEE. AGAINST THE SAID ADDITION, THE ASSESSEE FILED AN APPEAL BEF ORE THE LD. CIT(A), WHO SUSTAINED THE ADDITION MADE BY THE ASSESSING OFFICE R. AGAINST THE SAID ORDER OF THE LD. CIT(A), THE ASSESSEE PREFERRED AN APPEAL TO THE ITAT, WHEREIN THE ADDITION MADE BY THE ASSESSING OFFICER WAS DELETED. IN THE MEANTIME, THE ASSESSING OFFICER LEVIED THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT ON THE BASIS THAT THE LD. CIT( A) HAS DISMISSED THE APPEAL OF THE ASSESSEE. 4. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER T O THE LD. CIT(A), WHO DELETED THE PENALTY BY OBSERVING AS UNDER:- IN THE INSTANT CASE, IT IS SEEN THAT THE A.O. HAD I MPOSED PENALTY U/S 271(1)(C) OF THE INCOME TAX ACT, BEFORE DECISION OF THE HON'BLE ITAT JODHPUR BENCH, ON ADDITIONS MADE BY THE A.O. NOW WHEN THE HON'BLE ITAT HAS DELETED ALL THE ADDITIONS MADE BY THE A.O., THERE I S NO QUESTION OF PENALTY 3 U/S 271(1)(C) OF THE INCOME TAX ACT. AFTER CONSIDE RING THE TOTALITY OF THE CIRCUMSTANCES, IT IS HELD THAT THE PENALTY LEVIED B Y THE A.O. WAS NOT JUSTIFIED, THE SAME IS, THEREFORE, CANCELLED. NOW THE DEPARTMENT IS IN APPEAL. 5. LEARNED D.R. SUBMITTED THAT THE ITAT RESTORED ONE ISSUE TO THE FILE OF THE LD. CIT(A) AND DELETED THE OTHER ADDITIONS, THEREFORE, THE LD. CIT(A) WAS NOT JUSTIFIED IN DELETING THE PENALTY LE VIED BY THE ASSESSING OFFICER. 6 . IN HIS RIVAL SUBMISSIONS, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ADDITION MADE BY THE ASSESSING OFFICER WAS DELETED BY THE ITAT AND EVEN AFTER RESTORING ONE ISSUE TO THE FILE OF T HE LD. CIT(A), THE INCOME OF THE ASSESSEE WAS NON-TAXABLE. THEREFORE, THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT WAS NOT LEVIABLE AND T HE LD. CIT(A) WAS FULLY JUSTIFIED IN DELETING THE PENALTY LEVIED BY THE ASS ESSING OFFICER. 7 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PA RTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RE CORD. IN THE PRESENT CASE, IT APPEARS THAT THE ASSESSING OFFICER LEVIED THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT ON THE BASIS THAT THE ADDITION MADE BY HIM WAS SUSTAINED BY THE LD. CIT(A). HOWEVER, HE IGNOR ED THIS VITAL FACT THAT THE ADDITION SUSTAINED BY THE LD. CIT(A) WAS DELETE D BY THE ITAT VIDE 4 ORDER DATED 23/11/2012 IN I.T.A.NO. 4/JU/2012. IT IS NOTICED THAT THE ASSESSING OFFICER PASSED THE PENALTY ORDER UNDER SE CTION 271(1)(C) OF THE ACT ON 14/09/2012 WHILE THE ORDER PASSED BY THE ITA T WAS OF LATER DATE I.E. 23/11/2012. THEREFORE, THE SAID ORDER WAS NOT AVAILABLE TO THE ASSESSING OFFICER. IN OTHER WORDS, WHEN THE PENALT Y ORDER WAS PASSED BY THE ASSESSING OFFICER, THE ORDER OF THE ITAT WAS NO T AVAILABLE, HOWEVER, THE LD. CIT(A) DELETED THE PENALTY ON THIS BASIS TH AT THE ADDITION MADE BY THE ASSESSING OFFICER HAD BEEN DELETED BY THE ITAT. IT IS WELL SETTLED THAT WHEN NO ADDITION REMAINS, THERE IS NO QUESTION OF C ONCEALMENT OF INCOME AND THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT IS NOT LEVIABLE. IN THAT VIEW OF THE MATTER, WE ARE OF THE VIEW THAT THE LD. CIT(A) WAS FULLY JUSTIFIED IN DELETING THE PENALTY LEVIED BY THE ASS ESSING OFFICER. WE DO NOT SEE ANY MERIT IN THIS APPEAL OF THE DEPARTMENT. 8 . IN THE RESULT, APPEAL OF THE DEPARTMENT IS DISMIS SED. (ORDER PRONOUNCED IN THE COURT ON 19 TH MAY, 2014). SD/- SD/- (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 19 TH MAY, 2014. VR/- 5 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD.CIT 4. THE CIT(A) 5. THE D.R ASSISTANT REGISTRAR, ITAT, JODHPUR.