F.A. Chasmawala Pvt.Ltd., Baroda V. The ACIT.,Circle-1(2), Baroda

ITA 915/AHD/2011

• Counselvise Citation: 91520514 RSA 2011
• Duration Of Justice: 3 year(s) 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 30-05-2014
• Assessment Year: 1993-1994
• Appeal Filed On: 29-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P BATHEJA
• Assessee Lawyers: M K PATEL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI T.R. MEENA, ACCOUNTANT MEMBER ITA NO.915/AHD/2011 A.Y.1993-94 F.A. CHASMAWALA PVT. LTD., BEHIND VIHAR CINEMA, PRATAPNAGAR CINEMA, BARODA. PAN: AAACF 2962P VS ACIT, CIRCLE -1(2), BARODA. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI O.P. BATHEJA, SR.D.R. , ASSESSEE(S) BY : M.K. PATEL, A.R. / DATE OF HEARING : 30/05/2014 / DATE OF PRONOUNCEMENT: 30/05/2014 / O R D E R PER SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE ARISING FRO M THE ORDER OF THE LD. CIT (APPEALS)-I, BARODA, DATED 07/02/2011. THE GROUND RAISED BY THE ASSESSEE IS REPRODUCED BELOW: 1. THE LEARNED CIT(A) ERRED IN CONFIRMING PENALTY OF RS.58760/- ON THE ADDITION MADE AND CONFIRMED IN THE ASSESSMENT ORDER AS WELL AS THE ORDER OF THE CIT(A) AMOUNTING TO RS.1,02,192/- BEING PURCHAS E OF REP LICENSES. 2. THE LEARNED CIT(A) ERRED IN CONFIRMING PENALTY I N RELATION TO THE EXPENSES DEBITED IN THE BOOKS OF ACCOUNT ON PURCHASE OF REP LICENSE FOR WHICH PAYMENTS WERE MADE BY CHEQUES.. 2.1 FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDIN G ASSESSMENT ORDER PASSED U/S.143(3) DATED 29.03.1996 AND THE ORDER PA SSED U/S. 271(1)(C) DATED 19.10.2004 THAT A PENALTY WAS IMPOSED FOR THE REASON OF DISALLOWANCE OF PURCHASE OF REP LICENSE FOR RS.1,02 ,192/-. WE HAVE ITA NO.915/AHD/2011 F.A. CHASMAWALA P. LTD. VS. ACIT, CIRCLE-1(2), BARO DA. FOR A.Y. 1993-94 - 2 - BEEN INFORMED THAT AGAINST THE IMPUGNED ADDITION AN APPEAL WAS FILED BEFORE LEARNED CIT(A)-IV, BARODA AND VIDE AN ORDER DATED 23.09.1996 (APPEAL NO. CAB-IV-67/ 96-97) THE IMPUGNED ADDITION WAS DELETED. AGAINST THE SAID DELETION, REVENUE HAD PREFERRED AN APPEAL BEFORE ITAT B BENCH AND VIDE AN ORDER DATED 26.06.2003 (ITA N O.45/AHD/1997 AND CO NO.21/AHD/2001) FOR A.Y. 1993-94 THE MATTER WAS RESTORED BACK TO THE FILE OF THE AO TO EXAMINE THE EVIDENCES FILED D URING THE COURSE OF THE FIRST APPELLATE PROCEEDINGS. IN CONSEQUENCES THEREU PON, A FRESH ORDER U/S.143(3) R.W.S. 254 OF IT ACT DATED 30 TH SEPTEMBER, 2004 WAS PASSED AND AGAIN THE SAID AMOUNT OF RS.1,02,192/- WAS TAXE D ON THE GROUND OF PURCHASE OF REP LICENSE. 2.2 AS FAR AS THE QUESTION OF LEVY OF PENALTY IS C ONCERNED, WE HAVE BEEN INFORMED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, FOLLOWING INFORMATION WAS TENDERED BEFORE THE AO, R ELEVANT OBSERVATION IS REPRODUCED BELOW: IN THE MEANWHILE, THE REGD. LETTER SENT TO PINKEY OVERSEAS WAS ALSO RETURNED UNSERVED. THIS WAS BROUGHT TO THE KNOWLEDG E OF SHRI SUBRAMANIAM DURING HEARING ON 8.3.1996, AND HE STATED THAT CONF IRMATION OF BOTH PARTIES WOULD BE FILED ON 11.3.1996. HOWEVER, NO SUCH CONFI RMATION WERE PRODUCED. THE ASSESSEE WAS, THEREFORE, ISSUED NOTICE U/S.142( 1) OF THE ACT, REQUIRING IT TO PRODUCE BOTH THE AFOREMENTIONED PARTIES WITH THEIR BOOKS OF ACCOUNT, BANK STATEMENTS AND PROOF OF FILING OF RETURN FOR THE RE LEVANT YEAR. ON THE SPECIFIED DATE OF HEARING I.E. 25.3.1996, SHRI SUBRAMANIAM AT TENDED AND FILED A WRITTEN REPLY. IT WAS SUBMITTED THAT THERE IS NO DISPUTE AS TO THE FACT THAT THESE LICENSES ARE PURCHASED FROM THEM AND THE RAW MATERIALS HAD B EEN PURCHASED BY THE COMPANY ON THESE LICENSES. FURTHER, IT IS REITERATE D THAT PAYMENT AGAINST PURCHASE OF THESE LICENSES HAVE BEEN MADE BY CROSSE D ACCOUNT PAYEE CHEQUES ONLY. CONSIDERING THESE OVERWHELMING FACTORS IT IS SUBMITTED THAT NO ADDITION BE MADE ON ACCOUNT THAT CONFIRMATION LETTERS ARE NO T AVAILABLE FROM THESE PARTIES OR THEY HAVE NOT REPLIED TO THE LETTERS SEN T BY YOUR KIND HONOUR. 3. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUM STANCES OF THE CASE AS WELL AS THE PAST HISTORY WHEN THE MATTER HAD GON E UPTO THE ITAT AND ITA NO.915/AHD/2011 F.A. CHASMAWALA P. LTD. VS. ACIT, CIRCLE-1(2), BARO DA. FOR A.Y. 1993-94 - 3 - AGAIN RESTORED BACK TO THE FILE OF THE AO IN RESPEC T OF EVIDENCES WHICH WERE ON RECORD SUCH AS LICENSE HAVE BEEN PURCHASED THROUGH ACCOUNT PAYEE CHEQUES AND THE NAMES OF THE PARTIES WERE VER Y MUCH AVAILABLE DURING THE COURSE OF ASSESSMENT PROCEEDINGS, WE HER EBY HOLD THAT THIS IS NOT A FIT CASE FOR LEVY OF CONCEALMENT PENALTY AS H ELD IN THE CASE OF RELIANCE PETRO PRODUCTS, 322 ITR 158 (SC) . RESPECTFULLY FOLLOWING THIS DECISION AND CONSIDERING THE DISCUSSION MADE HEREIN ABOVE, WE HEREBY DIRECT TO DELETE THE PENALTY. RESULTANTLY, THE GROU ND RAISED BY THE ASSESSEE IS ALLOWED. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. SD/- SD/- (T.R. MEENA) (MUKUL KR. SHRAWAT) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 30/05/2014 PRABHAT KR. KESARWANI, SR. P.S. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)-III, AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE. / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD