Shri Hemantsinh B.Gohil, Bhavnagar V. The Income tax Officer,Ward-2(3), Bhavnagar

ITA 831/AHD/2014

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8958 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 08-03-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 21-03-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 271(1)(c); 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH AHMEDABAD BEFORE SHRI N. K. BILLAIYA, ACCOUNTANT MEMBER, AND SHRI S. S. GODARA, JUDICIAL MEMBER. ITA NO.831/AHD/2014 (ASSESSMENT YEAR:2007-08) SHRI HEMANTSINH B. GOHIL, PROP. OF BHARGAV TRANSPORT, B/H STATE BANK OF INDIA, OFF. TALAJA ROAD, VILLAGE BUDHEL, DIST. BHAVNAGAR APPELLANT VS. THE ITO, WARD-2(3), BHAVNAGAR RESPONDENT PAN: AIWPG9974B /BY ASSESSEE : SHRI TUSHAR P. HEMANI, A.R. /BY REVENUE : SHRI JAMES KURIAN, SR. D.R. /DATE OF HEARING : 08.03.2017 /DATE OF PRONOUNCEMENT : 16.03.2017 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2007-08 ARISES AGAINST THE CIT(A)-XX, AHMEDABADS ORDER DATED 03.01.2014, PASS ED IN APPEAL NO. CIT(A)-XX/18/12-13, UPHOLDING ASSESSING OFFICERS A CTION IMPOSING PENALTY OF RS.10,51,209/-, IN PROCEEDINGS UNDER SE CTION 271(1)(C) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. ITA NO. 831/AHD/2014 (SHRI HEMANTSINH B. GOHIL VS. ITO) A.Y. 2007-08 - 2 - WE HAVE HEARD BOTH THE PARTIES. CASE FILE PERUSED . 2. IT IS EVIDENT THAT THE ASSESSING OFFICER HAS IMP OSED THE IMPUGNED PENALTY OF RS.10,51,209/- PERTAINING TO TWO ADDITIO NS OF ADVANCES RECEIVED FROM CUSTOMERS AND OUTSTANDING AMOUNT OF LOAN IN TH E NAME OF M/S. KOTAK MAHINDRA BANK INVOLVING SUMS OF RS.25,18,753/- AND RS.5,61,838/- AS MADE BY THE ASSESSING OFFICER IN ASSESSMENT ORDER DATED 23.12.2010 AND UPHELD IN CIT(A)S ORDER. THE ASSESSING OFFICER THEREAFTER I MPOSED THE IMPUGNED PENALTY VIDE ORDER DATED 16.03.2012 THEREBY TREATIN G THE ABOVE ADDITIONS AS AN INSTANCE OF BOTH FURNISHING OF INACCURATE PARTIC ULARS AS WELL AS CONCEALMENT OF INCOME U/S.271(1)(C) OF THE ACT. TH E CIT(A) CONFIRMS THE ASSESSING OFFICERS ACTION. WE FURTHER FIND AT PAG E 21 OF THE LOWER APPELLATE ORDER THAT THE ASSESSEE DID NOT PREFER ANY APPEAL A GAINST THE LATTER ADDITION HEREINABOVE AS MADE IN THE COURSE OF ASSESSMENT. 3. A PERUSAL OF THIS CASE FILE INDICATES THAT THE A SSESSEE HAD INSTITUTED ITS QUANTUM APPEAL BEFORE THIS TRIBUNAL ITA NO.3398/AHD /2010. A CO-ORDINATE BENCH IN ITS ORDER DATED 31.10.2014 REMITTED THE FO RMER ISSUE OF QUANTUM ADDITION OF RS.25,18,753/- BACK TO THE CIT(A) FOR A FRESH ADJUDICATION. THERE CAN HARDLY BE ANY DISPUTE THAT THE SAID TRIBUNALS ORDER HAS BEEN PASSED AFTER THE CIT(A)S ORDER UNDER CHALLENGE DATED 03.01.2014 . WE OBSERVE IN THESE FACTS THAT THE IMPUGNED PENALTY QUA THE SAID FORMER ADDITION HAS NO LEGS TO STAND AS ON DATE. WE THUS REMIT THIS FORMER ISSUE OF PENALTY PERTAINING TO THE ABOVESTATED ADDITION BACK TO THE CIT(A) FOR AFRESH ADJUDICATION AFTER TAKING INTO CONSIDERATION HIS CONSEQUENTIAL QUANTUM LOWER APPELLATE ORDER. 4. THIS LEAVES US WITH THE ISSUE OF CORRECTNESS OF THE IMPUGNED PENALTY PERTAINING TO LATTER ADDITION OF RS.5,61,838/- (SUP RA). THE CIT(A) APPEARS TO HAVE PROCEEDED ON A PREMISE THAT THE ASSESSEE DID N OT FILE ANY QUANTUM ITA NO. 831/AHD/2014 (SHRI HEMANTSINH B. GOHIL VS. ITO) A.Y. 2007-08 - 3 - APPEAL AGAINST THE SAME. THE SAID OBSERVATIONS ARE AT PAGE 29 LAST PARA OF THE LOWER APPELLATE ORDER. THE SAME HOWEVER DOES NOT C ONFIRM TO THE CASE RECORDS. WE FIND THAT THE ASSESSING OFFICER HIMSEL F OBSERVES IN PARA 3 THAT THE ASSESSEE HAD PREFERRED A RECTIFICATION AGAINST THE SAID ADDITION. HE THEREAFTER INSTITUTED A SEPARATE APPEAL BEFORE THE CIT(A) IN SECTION 154 PROCEEDINGS. THE CIT(A)S FINDINGS UNDER CHALLENGE THEREFORE DO NOT STATE THE CORRECT FACTUAL POSITION. WE DEEM IT APPROPRIA TE IN THESE FACTS THAT THE CIT(A) SHALL ONCE AGAIN DECIDE CORRECTNESS OF THE I MPUGNED PENALTY PERTAINING TO THIS LATTER ISSUE AS WELL AFTER AFFOR DING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. 5. THIS ASSESSEES APPEAL IS ACCEPTED FOR STATISTIC AL PURPOSES. [PRONOUNCED IN THE OPEN COURT ON THIS THE 16 TH DAY OF MARCH, 2017.] SD/- SD/- ( N. K. BILLAIYA ) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 16/03/2017 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )*+ ,--. . /0 / DR, ITAT, AHMEDABAD 1 +23 45 / GUARD FILE. BY ORDER / . // . /0