Chhatra Pal Singh, Fatehpur V. ITO, Fatehpur

ITA 96/ALLD/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 89797 (ITAT-ALLAHABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 23-04-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 11-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: UMESH PATHAK
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, ALLAHABAD BENCH, ALLAHABAD BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AN D SHRI C. N. PRASAD, JUDICIAL MEMBER ITA NO. 96/ALLD/2012 ASSESSMENT YEARS: 2003-04 CHHATRA PAL SINGH MS/. SINGH TRACTOR AGENCY, HARIHARGANJ, FATEHPUR 212601 PAN:-ABZPS0335E VS. ITO RANGE II(4) FATEHPUR (APPELLANT) (RESPO NDENT) ASSESSEE BY : SHRI SANJAY KUMAR REVENUE BY : SHRI UMESH PATHAK DATE OF HEARING : 23.04.2015 DATE OF PRONOUNCEMENT : 27.04.2015 O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL BY THE ASSESSEE, IS FILED AGAINST THE ORDER OF THE LD. CIT(A) ALLAHABAD, DATED 21.10.2011 FOR THE A.Y. 2003-04. THIS ORDER RELATES TO THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT. AO LEVIED THE PENA LTY OF RS.35,000/- VIDE HIS ORDER DATED 21.09.2007. ON QUANTUM OF APPEALS, THE TRIBUN AL CONFIRMED SOME OF THE ADDITIONS AND RESTORED THE OTHERS. 2. BEFORE US, AT THE OUTSET, LEARNED COUNSEL INFORM ED US THERE IS A DELAY OF 75 DAYS IN FILING THE APPEAL BEFORE US. ON THIS ISSUE LEARNED COUNSEL SUBMITTED THE FOLLOWING IN THE FORM OF AN AFFIDAVIT, THE RELEVANT PORTIONS IN PARA 2 TO 4 OF THE AFFIDAVIT ARE REPRODUCED AS UNDER:- THAT THE ORDER WAS DELIVERED BY ME ON THE SAME DA TE TO MY COUNSEL MR. A.K. SINGH, ADVOCATE, WHO HAD BEEN LOOKING AFTER MY TAX AFFAIRS IN FATEHPUR WITH A REQUEST TO PREPARE AND FILE AN APPEAL. THAT LATER WHEN A DEMAND NOTICE TO DEPOSIT THE PENA LTY WAS RECEIVED BY ME I APPROACHED MR. A.K. SINGH, ADVOCATE AND ON ENQUIR Y CAME TO KNOW THAT APPEAL HAS NOT BEEN FILED. THAT I COLLECTED THE RECORDS FROM SRI A.K. SINGH, A DVOCATE AND AFTER ENQUIRING FROM THE LOCAL TRADERS I APPROACHED THE P RESENT COUNSEL AND DELIVERED THE ORDER TO SRI SANJAY KUMAR, ADVOCATE O N 09.05.2012 WHO PREPARED AND FILED THE APPEAL ON 11.05.2012. ITA NO. 96/ALLD/2012 ASSESSMENT YEARS: 2003-04 2 CONSIDERING THE ABOVE, WE CONDONE THE DELAY AND ADM IT THE APPEAL. 3. IN THE SET ASIDE PROCEEDINGS GIVING EFFECT TO T HE ORDER OF THE TRIBUNAL, THE AO GRANTING TO RELIEF IN RESPECT OF THE ISSUE NO. (VI) RELATING TO DISALLOWANCE OF INTEREST ON UNSECURED LOANS. THE DETAILS OF THE ADDITIONS MA DE BY THE AO IN ASSESSMENT ARE AS UNDER:- (I) ON ACCOUNT OF FABRICATION CHARGES RS.39,000/- (II) ON ACCOUNT OF FREIGHT & CARTAGE EXPENSES RS.20,78 0/- (III) 1/5 TH OF CAR & JEEP MAINTENANCE CHARGES RS.28,326/- (IV) DEPRECIATION ON HONDA CITY CAR & BOLERO JEEP RS.43 ,148/- (V) 1/5 TH TELEPHONE CHARGES RS. 8,630/- (VI) DISALLOWANCE OF INTEREST ON THE UNSECURED LOANS RS. 1,33,139/- 4. BEFORE US, LEARNED COUNSEL FOR THE ASSESSEE SUBM ITTED THAT ALL ABOVE REFERRED ARE ADDITIONS MADE ON AD-HOC BASIS. IN THAT CASE, T HERE WAS NO CONCEALMENT OF INCOME AS SUCH. DISALLOWANCES WERE MADE ONLY FOR WA NT OF CERTAIN EVIDENCES/VOUCHERS ONLY. OTHERWISE THE AO HAS NOT B ROUGHT IN ANY INCRIMINATING MATERIAL AGAINST THE ASSESSEE IN SUPPORT OF THE ABO VE REFERRED ADDITIONS. LEARNED COUNSEL ALSO SUBMITTED THAT THE PENALTIES LEVIED IN SUCH ADDITIONS ARE NOT SUSTAINABLE IN LAW. MERE CONFIRMING OF ADDITIONS BY THE TRIBUNA L DO NOT ATTRACT PENALTIES U/S 271(1)(C) OF THE ACT ON THE PENALTY PROCEEDINGS ARE INDEPENDENT PROCEEDINGS. 5. ON THE OTHER HAND, LD. DR FOR THE REVENUE RELYIN G ON THE ORDERS OF THE AO. 6. ON HEARING BOTH THE PARTIES AND PERUSED THE ORDE RS OF THE REVENUE AS WELL AS ORDER OF THE TRIBUNAL ON QUANTUM APPEALS, WE FIND T HAT ADDITIONS WERE MADE ON AD- HOC BASIS AND AS SUCH, THERE IS NO CONCEALMENT OF I NCOME. THESE ACCOUNTS MENTIONED IN PARA 3 ABOVE WERE ALREADY DISCLOSED IN THE FINANCIAL STATEMENTS OF THE ASSESSEE. MERE DISALLOWANCE OF SOME PORTION OF SUCH DISCLOSED ACCOUNTS IN THE PROFIT & LOSS ACCOUNT DO NOT ATTRACT THE PENAL PROVISIONS. CONSIDERING THE OVERALL FACTUAL MATRIX OF THE PRESENT CASE, WE ARE OF THE OPINION T HAT THIS IS NOT A FIT CASE FOR LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. WE HELD ALSO DESP ITE THE CONFIRMING OF THE ADDITIONS BY THE TRIBUNAL IN QUANTUM APPEAL. ACCORD INGLY, GROUND RAISED BY THE ASSESSEE ARE ALLOWED. ITA NO. 96/ALLD/2012 ASSESSMENT YEARS: 2003-04 3 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 27 TH DAY OF APRIL, 2015. SD/- SD/- (C. N. PRASAD) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER ALLAHABAD, DATED: 27.04.2015 *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, ALLAHABAD THE CIT(A) CONCERNED, ALLAHABAD THE DR BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, ALLAHABAD.