Ravindrasingh M.Rathod, Ahmedabad V. Income Tax Officer, Ward-1(2)(2), Vadodara

ITA 922/AHD/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8466 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2004-2005
• Appeal Filed On: 11-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH BEFORE: SHR I S. S. GODARA , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER RAVINDRASINGH M. RATHOD, PROP. PARAGON ENTERPRISES INDUSTRIES, 27, GIDC, NANDESARI, DIST BARODA - 391340 PAN: ABZPR1620H (APPELLANT) VS THE ITO, WARD - 1(2)(2), ROOM NO. 205, 2 ND FLOOR, AAYAKAR BHAVAN, RACE COURSE CIR CLE, VADODAR - 390007 (RESPONDENT) REVENUE BY : S H RI MUDIT NAGPAL , SR. D . R. ASSESSEE BY: S MT. KINJAL SHAH , A.R. DATE OF HEARING : 15 - 03 - 2 018 DATE OF PRONOUNCEM ENT : 11 - 04 - 2 018 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THIS ASSESSEE S APPEAL FOR A.Y. 2004 - 05 , ARIS ES FROM ORDER OF THE CIT(A) - 5, VADODARA DATED 04 - 01 - 2016 , IN PROCEEDINGS UNDER SECTION 271(1 ) (C) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2. TH E ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: - ON LEGALITY: 1. THE CIT(A) HAS ERRED BOTH IN LAW AND IN UPHOLDING THE LEVY OF PENALTY OF RS.2,02,572/ - AND GIVING PARTI AL RELIEF FROM PENALTY OF RS. 4, 50,000/ - . I T A NO . 922 / A HD/20 1 6 A SSESSMENT YEAR 200 4 - 05 I.T.A NO. 922 /AHD/20 16 A.Y. 2004 - 05 PAGE NO RAVINDRASINGH M. RATHOD VS ITO 2 ON FACTS OF THE CASE AS PER PRO VISIONS OF LAW SECTION 271(1 )(C) DOES NOT APPLY AND THAT YOUR APPELLANT HAS NOT 'CONCEALED ANY INCOME' OR 'FURNISHED INACCURATE PARTICULARS OF SUCH INCOME' AND PENALTY IS NOT LEVIABLE. 2. THE CIT(A) HAS ERRED IN CONFIRMING LEVY OF PENALTY DESPITE TH E FACT THAT THE SHOW CAUSE NOTICE ISSUED BY THE ASSESSING OFFICER WAS VAGUE, UNCLEAR AND UNCERTAIN AS TO WHETHER HE WANTED TO LEVY OF PENALTY FOR 'CONCEALMENT OF INCOME' OR 'FOR FURNISHING INACCURATE PARTICULARS OF SUCH INCOME'. YOUR APPELLANT SUBMITS THAT IN VIEW OF BINDING JUDGEMENT OF HON. GUJARAT HIGH COURT IN THE CASE OF NEW SORATHIYA ENGG. CO. VS. CIT, 282 ITR PAGE 645 PENALTY ORDER IS BAD IN LAW AND VOID AND THEREFORE REQUIRES TO BE CANCELLED. ON MERITS: 1. WITHOUT PREJUDICE TO ABOVE, YOUR APPELLANT SUBMITS THAT THE CREDITS IN THE CAPITAL ACCOUNT ARE DULY EXPLAINED WITH PROOF AND EVIDENCES AND THAT ON FACTS OF THE CASE AND AS PER PROVISIONS OF LAW IT CANNOT BE CALLED 'CASH CREDIT' AS ALLEGED BY THE ASSESSING OFFICER. 2. BEFORE ASSESS ING OFFICER AND CIT(A) FULL PROOF AND EVIDENCES IN SUPPORT OF THE CREDITS IN CAPITAL ACCOUNT WERE GIVEN AND NOT ACCEPTING IN THE EXPLANATION DOES NOT AMOUNT TO CONCEALMENT AND PENALTY IS NOT LEVAIBLE. IT IS THEREFORE SUBMITTED THAT RELIEF CLAIMED ABOVE BE ALLOWED AND THE ORDER OF THE ASSESSING OFFICER BE MODIFIED ACCORDINGLY. 3. ALL THE GROUNDS OF APPEAL PERTAINING TO THE SOLE ISSUE OF LEVYING OF PENALTY ARE ADJUDICATED BY THIS COMMON ORDER. THE ASSESSEE HAS FILED APPEAL AGAINST THE ORDER OF LD. CIT(A ). THE LD. CIT(A) HAS SUSTAINED THE PENALTY LEVIED BY THE ASSESSING OFFICER U/S. 271(1)(C) OF THE ACT TO THE AMOUNT OF RS. 4,50,000/ - ON THE BASIS OF ADDITION MADE U/S. 143(3) OF THE ACT IN THE CASE OF THE ASSESSEE ON 27 TH DECEMBER, 2006. DURING THE COUR SE OF APPELLATE PROCEEDINGS BEFORE US, IT W AS BROUGHT TO OUR NOTICE BY THE LD. COUNSEL THAT QUANTUM ADDITION ON THE BASIS OF WHICH THE IMPUGNED PENALTY WAS LEVIED HAS BEEN RESTORED TO THE ASSESSING OFFICER FOR DECIDING AFRESH VIDE ITA NO. 1407/AHD/2017 DAT ED 15/05/ 2017, THEREFORE, HE HAS REQUESTED THAT THE PENALTY MAY ALSO BE SET ASIDE TO THE FILE OF ASSESSING OFFICER FOR DECIDING AFRESH ACCORDING TO THE ASSESSMENT MADE IN THE CASE OF THE ASSESSEE. WE HAVE GONE THROUGH THE ORDER OF THE CO - ORDINATE BENCH OF THE ITAT AND NOTICED THAT THE ISSUE ON WHICH THE QUANTUM ADDITION WAS MADE U/S. 143(3) OF THE ACT HAS BEEN RESTORED TO THE FILE OF ASSESSING OFFICER FOR RE - EXAMINATION AND ADJUDICATION . T HEREFORE, WE OBSERVE O NCE THE ORDER HAS BEEN I.T.A NO. 922 /AHD/20 16 A.Y. 2004 - 05 PAGE NO RAVINDRASINGH M. RATHOD VS ITO 3 SET ASIDE , THEN , THERE IS NO BASIS FOR LEVY OF PENALTY, THEREFORE, WE SET ASIDE THE PENALTY TO T H E FILE OF ASSESSING OFFICER TO DECIDE IT AFRESH AFTER COMPLETION OF THE SET ASIDE ASSESSMENT IN THE CASE OF T HE ASSESSEE. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PR ONOUNCED IN THE OPEN C OURT ON 11 - 04 - 201 8 SD/ - SD/ - ( S.S. GODARA ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 11 /04 /2018 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,