Param Polypack Pvt. Ltd., Baroda V. The ACIT, Circle-4, Baroda

ITA 814/AHD/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6264 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 06-04-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 20-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH MEENA
• Assessee Lawyers: S V AGRAWAL
• Keywords: Unexplained cash credit; Additional evidence
• Section: 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER !# I.T.A. NO.814/AHD/2014 ( / ASSESSMENT YEAR : 2009-10) PARAM POLYPACK PVT. LTD. 208, UNIQUE TRADE CENTRE, OPP. SURYA HOTEL, SAYAJIGUNJ, VADODARA - 390005 # VS. ASST. COMMISSIONER OF INCOME TAX, CIRCLE 4, BARODA. $ # % & # PAN/GIR NO. : AABCP 7744 A ( !$' / APPELLANT ) .. ( ($' # RESPONDENT ) !$') # APPELLANT BY : SHRI S.V. AGRAWAL, A.R. ($'*) / RESPONDENT BY : SHRI RAJESH MEENA, SR. D.R. + ,*-. / DATE OF HEARING 06/04/2017 /012*-. / DATE OF PRONOUNCEMENT 10/04/2017 3# O R D E R PER SHRI MAHAVIR PRASAD, JUDICIAL MEMBER : THIS APPEAL HAS BEEN FILED BY THE ASSESSEE IS DI RECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-II I, BARODA, DATED 04/12/2013 FOR THE ASSESSMENT YEAR (AY) 2009-10. ITA NO.814/AHD/ 2014 PARAM POLYPACK PVT. LTD. VS. ACIT ASST.YEAR 2009-10 - 2 - 2. ASSESSEE HAS BEEN TAKEN FOLLOWING GROUNDS OF APP EALS: (I). THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE PENALTY U/S. 271(1)(C) OF RS.1,78,138/- LEVIED BY AO. (II). THE ASSESSEE CRAVES FOR LIBERTY TO AMEND, MOD IFY AND ADD ANY GROUNDS OF APPEAL OR FURNISH ADDITIONAL EVIDENCES. 3. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI ALS ON RECORD ARE AS UNDER:- IN THIS CASE, THE ASSESSMENT U/S. 143(3) OF THE ACT WAS FINALIZED VIDE ORDER DATED 29/12/2011. IN THE SAID ORDER, THE ASSE SSING OFFICER HAD MADE ADDITION OF RS.5,76,500/- ON ACCOUNT OF CASH C REDIT, DISALLOWANCE U/S. 40(A)(IA) OF RS.3,082/- AND DISALLOWANCE U/S. 35B OF RS.20,700/-. IN THIS ORDER, THE ASSESSING OFFICER INITIATED THE PEN ALTY PROCEEDINGS U/S. 271(1)(C) ON ACCOUNT OF CASH CREDIT ADDITION OF RS. 5,76,500/-. PENALTY NOTICE U/S. 271(1)(C) OF THE ACT DATED 29/12/2011 W AS ALSO ISSUED AND DULY SERVED UPON ASSESSEE BY THE ERSTWHILE ASSESSIN G OFFICER. 4. IN RESPONSE TO THE NOTICE ASSESSEE ATTENDED THE PROCEEDINGS AND SUBMITTED ITS EXPLANATION BUT ASSESSEE HAD NOT PROD UCED THE CASH BOOK BEFORE THE ASSESSING OFFICER AT THE TIME OF ASSESSM ENT PROCEEDINGS AND ALSO THE NAME AND ADDRESS OF THE DEBTORS FROM WHOM CASH WAS RECEIVED. ITA NO.814/AHD/ 2014 PARAM POLYPACK PVT. LTD. VS. ACIT ASST.YEAR 2009-10 - 3 - 5. THE ASSESSEE HAS FAILED TO SUBSTANTIATE THE CLAI M AND ACCORDINGLY LEARNED ACIT IMPOSE THE MINIMUM PENALTY OF RS.1,78, 138/- U/S. 271(1)(C) R.W. EXPLANATION 1 BELOW SECTION 271(1) AS AGAINST MINIMUM PENALTY IMPOSABLE OF RS.1,78,138/- BEING 100% OF TA X SOUGHT TO BE EVADED AND MAXIMUM OF RS.5,34,414/- BEING 300% OF T AX SOUGHT TO BE EVADED. 6. AGAINST THE SAID ORDER ASSESSEE PREFERRED FIRST STATUTORY APPEAL BEFORE THE LEARNED CIT(A), BUT CIT(A) DECLINE THE P RAYER. HENCE, APPEAL WAS DISMISSED. 7. WE HAVE GONE THROUGH THE RELEVANT RECORD AND PAP ER BOOK FILED BY THE ASSESSEE, ASSESSEE HAS STATED THAT THE SOURCE O F CASH IS FROM WITHDRAWAL MADE FROM THE BANK BUT ASSESSEE HAS NOT SUBMITTED CASH BOOK FOR VERIFICATION. THE ASSESSEE ALSO STATED THA T HE HAS MADE CASH DEPOSIT IN THE BANK ON VARIOUS ACCOUNT, BEING FREQU ENT OUTSTANDING DEBTORS THE APPELLANT DURING THE ASSESSMENT PROCEED INGS AS WELL AS DURING THE PENALTY PROCEEDINGS HAS EXPLAINED THE SA ID FACT. HOWEVER, THE ASSESSING OFFICER IGNORING THE FACT AND EXPLANATION , ADDED A SUM OF RS.5,76,500/- AS UNEXPLAINED CASH CREDIT AND PENALT Y IMPOSED ON HIM WAS ILLEGAL. ITA NO.814/AHD/ 2014 PARAM POLYPACK PVT. LTD. VS. ACIT ASST.YEAR 2009-10 - 4 - 8. LEARNED AR FURTHER STATED THAT LEARNED AO OUGHT TO HAVE CONSIDERED HIS SUBMISSION AND HE HAS ALSO FILED A V OLUMINOUS PAPER BOOK BEFORE US IN OUR CONSIDERED OPINION HIS EXPLANATION OUGHT TO HAVE BEEN CONSIDERED BY THE AUTHORITIES BELOW, WHICH HAS BEEN FAILED TO DO SO AND SAME IS AMOUNTS TO MISCARRIAGE OF JUSTICE. IN VIEW OF THE FOREGOING OBSERVATION WE DELETE THE PENALTY AGAINST THE ASSES SEE. 9. IN THE RESULT APPEAL FILED BY THE ASSESSEE IS AL LOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 10/04/2017 SD/- SD/- ( ) 4 5 ( N.K. BILLAIYA ) ( MAHAVIR PRASAD ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 10/04/2017 PRITI YADAV, SR. PS ITA NO.814/AHD/ 2014 PARAM POLYPACK PVT. LTD. VS. ACIT ASST.YEAR 2009-10 - 5 - !'#$ %$' # COPY OF THE ORDER FORWARDED TO : 1. !$' / THE APPELLANT 2. ($' / THE RESPONDENT. 3. 67- + 8- / CONCERNED CIT 4. + 8- 4!5 / THE CIT(A)-III, BARODA. 5. 9:;-67 !.!672 ! / DR, ITAT, AHMEDABAD 6. ;<=, # GUARD FILE. & ' / BY ORDER, (9-- //TRUE COPY// (/' )* ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD TRUE COPY