The DCIT, (OSD)Circle-8,., Ahmedabad V. Stamina Holdings Pvt. Ltd., Ahmedabad

ITA 993/AHD/2010

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9261 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 11 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 29-02-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 01-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, A HMEDABAD , (BEFORE SHRI ANIL CHATURVEDI, A.M. & SHRI KUL BHARA T, J.M.) ( , !'# $ , ! %& ) ITA NO. 993/AHD/2010 (ASSESSM ENT YEAR: 2006-07) D.C.I.T. (OSD), CIRCLE 8, AHMEDABAD VS. STAMINA HOLDING PVT. LTD. 905, SUYOJAN, MILAN PARK, OFF. C.G.ROAD, AHMEDABAD PAN NO. AAECS5600B (APPELLANT) (RESPONDENT) APPELLANT BY : SMT. SONIA KUMAR, SR. D.R. RESPONDENT BY : SHRI DEEPAK SONI, A.R. DATE OF HEARING : 29 -02-201 6 DATE OF PRONOUNCEMENT : 10 -03-2016 ( )/ ORDER PER ANIL CHATURVEDI, ACCOUNTANT MEMBER THIS APPEAL FILED BY REVENUE IS AGAINST THE ORDER O F CIT(A)-XIV, AHMEDABAD, DATED 31.12.2009 FOR THE ASSESSMENT YEAR 2006-07 . 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI ALS ON RECORD ARE AS UNDER: ITA NO.993/AHD/10 A.Y. 2006-07 (DCIT(OSD) VS. STAM INA HOLDING PVT. LTD.) 2 3. THE ASSESSEE IS A COMPANY STATED TO BE ENGAGED I N THE BUSINESS OF DEALING IN SHARES AND SECURITIES. IT FILED ITS RETURN OF I NCOME FOR A.Y. 2006-07 ON 30.12.2006 DECLARING TOTAL INCOME AT RS. 28,04,547 /-. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER, ASSESSMENT WAS FRAMED U/S. 143(3) OF THE ACT VIDE ORDER DATED 10.12.2008 AND THE TOTAL INCOME WAS DETERMINE D AT RS. 2,39,07,090/- INTER ALIA BY MAKING ADDITION OF RS.1,32,22,000/- U/S.69 OF THE ACT, BEING INVESTMENTS IN MUTUAL FUNDS AS THE ASSESSEE DID NOT PRODUCE EVI DENCE OR BANK STATEMENT FOR VERIFICATION. THE MATTER OF QUANTUM ADDITION WAS C ARRIED BY THE ASSESSEE BEFORE LD. CIT(A) WHO GRANTED RELIEF TO THE ASSESSEE. AGA INST THE ORDER OF LD. CIT(A), REVENUE CARRIED THE MATTER BEFORE TRIBUNAL, WHEREIN THE CO-ORDINATE BENCH OF TRIBUNAL (IN ITA NO.992/AHD/2010, ORDER DATED 04.01 .2013) RESTORED THE ISSUE TO THE FILE OF LD. CIT(A) TO READJUDICATE THE ISSUE. DURING THE INTERVENING PERIOD, ON THE AFORESAID ADDITION OF RS.1,32,22,000/- MADE U/ S.69 OF THE ACT, A.O. VIDE ORDER DATED 25.06.2009 HELD THAT ASSESSEE HAD FURNISHED I NACCURATE PARTICULARS OF INCOME AND ACCORDINGLY, LEVIED PENALTY OF RS.44,50, 525/- U/S.271(1)(C) OF THE ACT. AGGRIEVED BY THE PENALTY ORDER OF ASSESSING OFFICER , ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) WHO VIDE ORDER DATED 31.12.20 09 (IN APPEAL NO. CIT(A)/XIV/DCC8/79/09-10) DELETED THE PENALTY BY HO LDING AS UNDER: 2.3 I HAVE CONSIDERED THE FACTS OF THE CASE AND TH E SUBMISSIONS OF THE APPELLANT. I AM INCLINED TO ACCEPT THE CONTENTION OF THE APPELLA NT. THE A.O. PASSED THE PENALTY ORDER IN A HASTE WITHOUT AFFORDING PROPER OPPORTUNITY TO APPELLANT. VARIOUS CONTENTIONS WERE RAISED BY APPELLANT ABOUT NOTICES AND NOT CALLING P ROPER INFORMATION THROUGH SUCH NOTICES. FURTHER, IT WAS CONTENDED THAT ALL THE DE TAILS WHENEVER CALLED WERE SUBMITTED AND THE ADDITION MADE ON ACCOUNT OF INVESTMENT IN M UTUAL FUNDS IS DULY SOURCED AND EXPLAINED. THE APPELLANT FOR THE ADDITION U/S.69 O F THE ACT FOR AN AMOUNT OF RS.1,32,22,000/- U/S.143(3) OF THE ACT BY THE A.O. VIDE ORDER DT: 10-12-08 FILED AN APPEAL ON 22-01-09. AFTER CONSIDERING THE VARIOUS SUBMISSIONS AND VERIFYING THE DETAILS, SUCH ADDITIONS WERE DIRECTED TO BE DELETED BY ME VIDE MY ORDER DATED 30-12-09 IN RESPECT OF APPELLANTS APPEAL NO. CIT(A) XIV/AC. CIR8(OSD)/267/08-09. IT IS, THEREFORE, THERE IS NO BASIS AND JUSTIFICATION OF P ENALTY SINCE SUCH APPEAL OF THE APPELLANT WAS ALLOWED. THE A.O. IS DIRECTED TO DEL ETE SUCH PENALTY. THE GROUND OF APPEAL OF THE APPELLANT IS ALLOWED. ITA NO.993/AHD/10 A.Y. 2006-07 (DCIT(OSD) VS. STAM INA HOLDING PVT. LTD.) 3 4. AGGRIEVED BY THE ORDER OF LD. CIT(A), REVENUE I S NOW IN APPEAL BEFORE US AND HAS RAISED FOLLOWING GROUNDS: 1) THE LD. COMMISSIONER OF INCOME-TAX(A)-XIV, AH MEDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY OF RS.4450525/- LEVIED U/S. 271(1)(C) OF THE ACT, IN RESPECT OF ADDITION OF RS.13222000/- MADE U/S.69 OF THE ACT. 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A)-XIV, AHMEDABAD OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 4.1 BEFORE US, LD. D.R. SUPPORTED THE ORDER OF ASSE SSING OFFICER AND FURTHER SUBMITTED THAT SINCE THE QUANTUM ADDITION HAS BEEN REMITTED BACK TO LD. CIT(A) BY THE CO-ORDINATE BENCH OF TRIBUNAL VIDE ORDER DATED 04.01.2013 IN ITA NO.992/AHD/2010, THE PENALTY ORDER BE ALSO REMITTED BACK. LD. A.R., ON THE OTHER HAND, SUBMITTED THAT SINCE THE QUANTUM ADDITION, ON WHICH THE PENALTY HAS BEEN LEVIED, DOES NOT SURVIVE, THERE IS NO QUESTION OF P ENALTY OF CONCEALMENT OF INCOME AND THEREFORE IT IS RIGHTLY DELETED BY LD. CIT(A) A ND HE THUS SUPPORTED THE ORDER OF LD. CIT(A). 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESPECT TO LE VY OF PENALTY U/S.271(1)(C) OF THE ACT ON THE ADDITION OF RS.1,32,22,000/- MADE U/S.69 OF THE ACT. WE FIND THAT AGAINST THE QUANTUM ORDER OF LD. CIT(A) WHEREBY ASS ESSEE WAS GRANTED RELIEF, REVENUE HAD PREFERRED THE APPEAL BEFORE THE CO-ORDI NATE BENCH OF TRIBUNAL. THE CO-ORDINATE BENCH OF TRIBUNAL WHILE DECIDING THE AP PEAL (IN ITA NO.992/AHD/2010, ORDER DATED 04.01.2013) HAD RESTOR ED THE ISSUE FOR RE- ADJUDICATION TO LD. CIT(A), WHICH MEANS THAT THE QU ANTUM ADDITION ON WHICH PENALTY HAS BEEN LEVIED, IS YET TO ATTAIN FINALITY. AS PER THE PROVISIONS OF THE ACT, THE PENALTY U/S.271(1)(C) OF THE ACT IS LEVIABLE ON THE ADDITION ON WHICH CHARGE IS TO BE PROVED THAT ASSESSEE HAS CONCEALED THE PARTIC ULARS OF INCOME. IN THE PRESENT CASE, AT THE MOMENT, SINCE FINALITY OF THE QUANTUM ADDITION IS YET TO BE ITA NO.993/AHD/10 A.Y. 2006-07 (DCIT(OSD) VS. STAM INA HOLDING PVT. LTD.) 4 DETERMINED, WE ARE OF THE VIEW THAT THERE CANNOT BE ANY QUESTION OF COMPUTING THE PENALTY U/S.271(1)(C) OF THE ACT ON SUCH DISPUTED A DDITION. IN SUCH A SITUATION, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF LD. C IT(A). THE A.O. SHALL HOWEVER BE FREE TO INITIATE PENALTY U/S.271(1)(C) OF THE AC T IN ACCORDANCE WITH LAW, AFTER FINALIZATION OF QUANTUM ADDITION, IF ANY, MADE TO T HE INCOME OF THE ASSESSEE. THUS THE GROUND OF REVENUE IS DISMISSED. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DI SMISSED. ORDER PRONOUNCED IN OPEN COURT ON 10 - 03 - 2016. SD/- SD/- (KUL BHARAT) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 10 /03/2016 TRUE COPY S K SINHA COPY OF THE ORDER FORWARDED TO:- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD