M/s Rajinder Parshad Jain, Jind V. ITO, Jind

ITA 912/CHANDI/2014

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 2527 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 19-03-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 28-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Assessee Lawyers: B M MONGA
• Section: 145

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS.RANO JAIN, ACCOUNTANT MEMBER ITA NO. 912/CHD/2014 ASSESSMENT YEAR: 2008-09 SHRI RAJINDER PARSHAD JAIN, VS THE ITO, GOVT. CONTRACTOR, WARD 2, JIND. JIND . PAN: AAJFR3351E (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI B.M. MONGA RESPONDENT BY : SHRI MANJIT SINGH DATE OF HEARING : 04.01.2016 DATE OF PRONOUNCEMENT : 06.01.2016 O R D E R PER BHAVNESH SAINI,JM THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(APPEALS) ROHTAK DATED 29.08.2014 F OR ASSESSMENT YEAR 2008-09 CHALLENGING THE LEVY OF PEN ALTY UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT. 2. THE APPEAL OF THE ASSESSEE WAS EARLIER DISMISSED IN DEFAULT WHICH WAS RESTORED IN ALLOWING MISCELLAN EOUS APPLICATION. 3. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SEE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF 2 CONSTRUCTION WORK. THE ASSESSEE FILED RETURN OF IN COME DECLARING INCOME OF RS. 21,005/-. THE CASE WAS SEL ECTED FOR SCRUTINY. THE BOOKS OF ACCOUNT WERE REJECTED U NDER SECTION 145 OF THE INCOME TAX ACT AND INCOME WAS ESTIMATED BY APPLYING PROFIT RATE OF 12%. THE MATT ER TRAVELED TO ITAT CHANDIGARH BENCH AND REJECTION OF THE BOOKS OF ACCOUNT WAS UPHELD AND THE TRIBUNAL DIRECT ED TO APPLY PROFIT RATE OF 6% AND PARTLY ALLOWED THE A PPEAL OF THE ASSESSEE. ON THIS, THE ASSESSING OFFICER COMPUTED THE INCOME OF ASSESSEE AT RS. 2,44,750/- A S PER ORDER OF THE TRIBUNAL AND VIDE SEPARATE ORDER, THE ASSESSING OFFICER LEVIED THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT. THE LD. CIT(APPEALS) DISMISS ED THE APPEAL OF THE ASSESSEE. 4. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECOR D. THE ASSESSEE IS A CIVIL CONTRACTOR. THE ASSESSEE PRODUCED BOOKS OF ACCOUNT AND OTHER DOCUMENTS BEFOR E ASSESSING OFFICER AT THE ASSESSMENT STAGE IN WHICH THE ASSESSING OFFICER FOUND CERTAIN DISCREPANCIES AND ACCORDINGLY REJECTED THE BOOKS OF ACCOUNT OF THE ASSESSEE. THE PROFIT RATE WAS ESTIMATED BY APPLYIN G HIGHER PROFIT RATE WHICH WAS REDUCED BY LD. CIT(APP EALS) AND ULTIMATELY THE TRIBUNAL DIRECTED TO APPLY PROFI T RATE OF 6% FOR THE PURPOSE OF ESTIMATING THE INCOME OF T HE ASSESSEE. IT IS, THEREFORE, CLEAR CASE OF ESTIMATI ON OF INCOME AND DIFFERENT AUTHORITIES HAVE ADOPTED DIFFE RENT 3 PROFIT RATES AT DIFFERENT STAGES. THESE FACTS, THE REFORE, CLEARLY SHOW THAT IT IS NOT A CASE OF FURNISHING INACCURATE PARTICULARS OF INCOME OR CONCEALING PARTICULARS OF INCOME. THE ASSESSING OFFICER HAS N OT BROUGHT ANY COGENT AND RELIABLE EVIDENCE ON RECORD TO SHOW THAT ASSESSEE HAS FURNISHED INACCURATE PARTICU LARS OR CONCEALED THE PARTICULARS OF INCOME. THE ASSESS ING OFFICER IN THE PENALTY ORDER HAS NOT MENTIONED WHET HER PENALTY WAS IMPOSED FOR FURNISHING INACCURATE PARTICULARS OR FOR CONCEALMENT OF INCOME. THE HON' BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF DHILLON RICE MILLS 256 ITR 447 AND HARI GOPAL SINGH 258 ITR 85 H ELD THAT PENALTY UNDER SECTION 271(1)(C) OF THE ACT NEED NOT TO BE IMPOSED ON ESTIMATED INCOME. THEREFORE, CONSIDERING THE ABOVE MATTER, WE ARE OF THE VIEW IT IS NOT A FIT CASE OF LEVY OF THE PENALTY. WE, ACCORDI NGLY, SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND CANCE L THE PENALTY. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (RANO JAIN) (BHAVNE SH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 6 TH JANUARY, 2016. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT/CHD