J.P. Builders & Developers, Nashik V. Income-tax Officer,

ITA 843/PUN/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7617 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 28-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , , . , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI D. KARUNAKARA RAO , AM . / ITA NO. 8 43 /P U N/20 1 6 / ASSESSMENT YEAR : 20 04 - 05 J.P. BUILDERS & DEVELOPERS, 42, KRUSHI NAGAR, COLLEGE ROAD, NASHIK 422005 . / APPELLANT PAN: AA DFJ2547A VS. THE INCOME TAX OFFICER , WARD 1(3), NASHIK . / RESPONDENT ASSESSEE BY : NONE (WRITTEN SUBMISSIONS) REVENUE BY : SHRI ACHAL SHARMA / DATE OF HEARING : 0 7 . 0 5 . 201 8 / DATE OF PRONOUNCEMENT: 14 . 05 . 201 8 / ORDER PER SUSHMA CHOWLA, JM: THE A PPEAL FILED BY THE ASSESSEE IS AGAINST ORDER OF CIT(A) - 1 , NASHIK , DATED 07.03.2016 RELATING TO ASSESSMENT YEAR 20 04 - 05 AGAINST LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . 2 . THE ASSESSEE HAS RAISED THE FOLLOWI NG GROUNDS OF APPEAL: - 2 ITA NO. 8 43 /P U N/201 6 J. P. BUILDERS AND DEVELOPERS 1. ON THE BASIS OF FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND AS PER LAW, THE COMMISSIONER OF INCOME TAX, (APPEALS) - 1 , NASHIK IS NOT JUSTIFIED IN CONFIRMING THE PENALTY U/S. 271( 1 )(C) OF THE ACT ON ADDITION OF RS.10,00, 000 / - ON A CCOUNT OF UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT. 2. ON THE BASIS OF FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND AS PER LAW, THE ORDER PASSED BY COMMISSIONER OF INCOME TAX, (APPEALS) - 1 , NASHIK, CONFIRMING THE LEVY OF PENALTY U/S 271( 1 )(C) TO BE QUAS HED AS THE SAME IS PASSED WITHOUT GIVING ANY OPPORTUNITY OF BEING HEARD TO THE APPELLANT THEREBY VI O LATING THE PRINCIPLES OF NATURAL JUSTICE. 3. ON THE BASIS OF FACTS AND THE CIRCUMSTANCES OF THE CASE AND AS PER LAW, T HE COMMISSIONER OF INCOME TAX (APPEAL S) - 12, PUNE IS NOT JUSTIFIED IN CONFIRMING THE PENALTY U/S. 271( 1 )(C) OF THE ACT ON ADDITION OF RS. 10,00,000/ - LEVIED BY THE AO PARTICULARLY WHEN THE NOTICE U/S. 274 R.W.S. 271( 1 )(C) OF THE ACT ISSUED BY THE A.O. DOES NOT SPECIFY THE SPECIFIC CHARGE FRAME D AGAINST THE APPELLANT I.E. WHETHER THE NOTICE WAS ISSUED FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME OR FOR CONCEALMENT OF INCOME OF FOR ANY OTHER REASON. 3. THE ISSUE RAISED IN THE PRESENT APPEAL IS AGAINST LEVY OF PENALTY UNDER SECTION 271(1)(C ) OF THE ACT ON ACCOUNT OF 10 LAKHS. 4. THE ASSESSEE HAS FILED WRITTEN SUBMISSIONS IN THIS REGARD WHICH ARE TAKEN UP AND THE APPEAL IS DECIDED AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE. 5. ON PERUSAL OF RECORD, WE FIND THAT PENALTY FOR CONCEALMENT UNDER SECTION 271(1)(C) OF THE ACT WAS LEVIED BY THE ASSESSING OFFICER ON THE BASIS OF ADDITION ON ACCOUNT OF UNEXPLAINED CASH CREDIT OF 16 LAKHS. THE ASSESSEE IN THE WRITTEN SUBMISSIONS HAS POINTED OUT THAT THE CIT(A) VIDE ORDER DATED 27.12.2007 IN THE FIRST ROUND HAD DISMISSED THE APPEAL OF ASSESSEE. HOWEVER, THE TRIBUNAL VIDE ORDER DATED 29.04.2012 IN ITA NO.236/PN/2012 HAD RESTORED THE ISSUE BACK TO THE FILE OF CIT(A). THEREAFTER, THE CIT(A), NASHIK VIDE ORDER DATED 01.12.20 15 RESTRICTED THE ADDITION OF 16 LAKHS ON ACCOUNT OF UNEXPLAINED CASH CREDIT TO 10 LAKHS. THE TRIBUNAL VIDE ORDER DATED 02.06.2017 IN ITA NO.371/PUN/2016 HAD DELETED THE ADDITION OF 10 LAKHS. THE ASSESSING OFFICER THEREAFTER, GIVING EFFECT TO THE ORDER OF 3 ITA NO. 8 43 /P U N/201 6 J. P. BUILDERS AND DEVELOPERS TRIBUNAL HAS REDUCED T HE ADDITION OF 10 LAKHS VIDE ORDER DATED 23.11.2017, COPY OF THE SAID ORDER IS PLACED ON RECORD. THE BASIS FOR LEVY OF PENALTY WAS THE ADDITION OF 16 LAKHS, WHICH WAS FIRST REDUCED BY THE CIT(A) TO 10 LAKHS AND THE SAME WAS DELETED BY THE TRIBUNAL. THE BASIS FOR LEVY OF PENALTY HAS BEEN ALLOWED IN FAVOUR OF ASSESSEE . HENCE , THERE IS NO MERIT IN LEVY OF PENALTY FOR CONCEALMENT UNDER SECTION 271(1)(C) OF THE ACT. THE ASSESSING OFFICER IS THUS, DIRECTED TO DELETE THE SAME. THE GROUNDS OF APPEAL RAIS ED BY THE ASSESSEE ARE THUS, ALLOWED. 6 . IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON THIS 14 TH DAY OF MAY , 201 8 . SD/ - SD/ - ( D.KARUNAKARA RAO ) (SUSHMA CHOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 14 TH MAY , 201 8 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE AP PELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A) - 1 , NASHIK ; 4. THE PR. CIT - 1, NASHIK ; 5. , , / DR A , ITAT, PUNE; 6. / GUARD FILE. / BY ORDER , //TRUE COPY// / SR. PRIVATE SECRETARY , / ITAT, PUNE