M/s. Shailee Developers, Baroda V. The Income Tax Officer, Ward-5(1), 504., Baroda

ITA 996/AHD/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8449 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 21-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ANIL R SHAH

Judgement Text

, *,LK *,LK *,LK *,LK- -- -,E ,E,E ,E- -- -LH* LH*LH* LH* IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER !# I.T.A. NO. 996/AHD/2016 ( / ASSESSMENT YEAR : 2008-09) M/S. SHAILEE DEVELOPERS, 19-A, PANGHAT, GOVINDRAO PARK SOCIETY, AJWA RAOD, BARODA 390 019 # VS. INCOME TAX OFFICER WARD 5(1), 504, AAYAKAR BHAWAN, RACE COURSE CIRCLE, BARODA 390 007 $ # % & # PAN/GIR NO. : AAZFS 4117 R ( !$' / APPELLANT ) .. ( ($' # RESPONDENT ) !$') # APPELLANT BY : SHRI ANIL R. SHAH, A.R. ($'*) / RESPONDENT BY : SHRI JAMES KURIAN, SR. D.R. + ,*-. / DATE OF HEARING 31/08/2017 /012*-. / DATE OF PRONOUNCEMENT 28/09/2017 3# O R D E R PER SHRI MAHAVIR PRASAD, JUDICIAL MEMBER : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE OR DER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-I, VADODARA, DA TED 04/02/2016 FOR THE ASSESSMENT YEAR (AY) 2008-09, ON THE FOLLOW ING GROUNDS: I. THE CIT(A) HAS ERRED BOTH IN LAW AND IN FACT IN CON FIRMING LEVY OF PENALTY OF RS.2,07,808/- LEVIED BY THE ASSESSING OFFICER U/S.271(1)YOURE YOUR APPELLANT HAS CONCEALED IN AN Y INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME AND THEREFORE PENALTY U/S.271(L)( C) IS NOT LEVIABLE. ITA NO.996/AHD/ 2016 M/S. SHAILEE DEVELOPERS, VS. ITO ASST.YEAR 2008-09 - 2 - II. WITHOUT PREJUDICE TO ABOVE, YOUR APPELLANT SUBMITS THAT THE SHOW CAUSE NOTICE ISSUED BY THE ASSESSING OFFICER D ATED 22/12/2010 WAS VAGUE UNCLEAR CAPABLE OF TWO VIEWS A ND WAS NOT CERTAIN AS TO WHETHER THE SAID NOTICE WAS ISSUED FO R 'CONCEALMENT OF INCOME' OR 'FOR FURNISHING INACCURA TE PARTICULARS OF SUCH INCOME' AND THEREFORE IN VIEW O F GUJARAT H.C. JUDGEMENT IN THE CASE NEW SORATHIYA ENGINEERIN G CO. LTD. VS. CIT 282 ITR PAGE 642 PENALTY BE CANCELLED. III. WITHOUT PREJUDICE TO YOUR APPELLANT SUBMITS THAT FO R ADDITION OF ALLEGED UNACCOUNTED RECEIPTS AND UNDISCLOSED INCOME AND NOT ACCEPTING EXPLANATION OF THE ASSESSEE DOES NOT AMOU NT TO CONCEALMENT OF INCOME AND PENALTY IS NOT LEVIABLE I T IS THEREFORE SUBMITTED THAT THE PENALTY OF RS.2,07,808/- LEVIED U/S. 271(1)(C) BE CANCELLED. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI ALS ON RECORD ARE AS UNDER:- IN THIS CASE, THE APPELLANT FILED ITS RETURN OF INC OME FOR ASST. YEAR 2008-09 ON 30/09/2008 DECLARING TOTAL INCOME AT RS. 59,860/-. ASSESSMENT U/S.143(3) OF THE I.T. ACT WAS COMPLETED ON 22/10/2010 AT TOTAL INCOME OF RS.6,59,860/- AFTER MAKING ADDITION S OF RS.6,00,000/- ON ACCOUNT OF UNACCOUNTED RECEIPTS. PENALTY PROCEEDIN GS U/S.271(L)(C) OF THE I.T. ACT WERE ALSO INITIATED ON ACCOUNT OF THIS ADD ITION. THE APPELLANT HAD FILED AN APPEAL BEFORE THE CIT(A)-V, BARODA AGAINST THE ORDER U/S.143(3) OF THE I.T. ACT. THE CIT(A)-V DECIDED THE APPEAL VI DE NO.CAB/(A)V- 216/10-11 DATED 28/12/2013, IN WHICH THE APPEAL WAS DISMISSED AND INCOME WAS ENHANCED BY RS.92,000/- ON ACCOUNT OF UN DISCLOSED INCOME FROM SAI AVENUE LAND. THE AO PROVIDED FRESH OPPORTU NITIES OF BEING ITA NO.996/AHD/ 2016 M/S. SHAILEE DEVELOPERS, VS. ITO ASST.YEAR 2008-09 - 3 - HEARD TO THE APPELLANT, BUT NO SUBMISSION WAS MADE ON BEHALF OF THE APPELLANT. HENCE THE AO HAS LEVIED PENALTY U/S.271( L)(C) OF THE ACT OF RS.2,07,808. 3. AGAINST THE SAID ORDER ASSESSEE FILED AN APPEAL BEFORE THE LEARNED CIT(A) WHO DISMISSED THE APPEAL OF THE ASSESSEE. 4. NOW APPELLANTS APPEAL IS BEFORE US. 5. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IMP UGNED ORDER. IN QUANTUM PROCEEDINGS, OUR CO-ORDINATE BENCH DECIDED THE MATTER IN FAVOUR OF THE ASSESSEE AND DELETED THE ADDITION. 5.2 LEARNED AR ALSO CITED A JUDGMENT OF OUR CO-ORDI NATE BENCH IN ITA NO.1909 & 1910/AHD/2010 FOR ASST. YEAR 2007-08. THE RELEVANT PORTION OF THE ORDER IS REPRODUCED HEREUNDER: 14. A PERUSAL OF THE AFORE-STATED DECISIONS SHOW T HAT ANY DISCLOSURE MADE DURING THE COURSE OF SURVEY PROCEEDINGS DOES N OT HAVE ANY EVIDENTIARY VALUE. THEREFORE, THE IMPUGNED ADDITION S MADE IN THE CASES OF THE AFOREMENTIONED TWO APPELLANTS DO NOT STAND A ND DESERVE TO BE DELETED. HOWEVER, WE FIND THAT THE ASSESSEE HAS ADM ITTED THE DISCLOSED AMOUNT THEIR RESPECTIVE RETURN OF INCOME FOR A.Y.20 09-10 AND HAVE PAID TAX ACCORDINGLY. THEREFORE, IN OUR CONSIDERED OPINI ON, THESE RETURNS SHOULD NOT BE DISTURBED. THE LD. SENIOR COUNSEL FAI RLY CONCEDED TO THIS. SETTING ASIDE THE FINDINGS OF THE LD. CIT(A), WE DI RECT THE A.O. TO DELETE THE ADDITIONS FOR A.Y. 2006-07,2007-08 & 2008-09 IN THE CASE OF M/S.SHAILEE DEVELOPERS AND DELETE THE ADDITIONS FRO M A.Y.2005-06, 2007-08 & 2008-09 IN THE CASE M/S.SWARAJ CONSTRUCTI ON. THE DISCLOSURE MADE IN A.Y.2009-10 OF RS.76 LACS IN THE CASE OF M/S. SHAILEE ITA NO.996/AHD/ 2016 M/S. SHAILEE DEVELOPERS, VS. ITO ASST.YEAR 2008-09 - 4 - DEVELOPERS AND RS.50 LACS IN THE CASE M/S. SWARAJ C ONSTRUCTION WILL STAND. WE ORDER ACCORDINGLY. 6. IN VIEW OF THE ABOVE SAID DELETION WE DELETE THE PENALTY AGAINST THE ASSESSEE AND ALLOW THE APPEAL OF THE ASSESSEE. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 28 / 09 /201 7 SD/- SD/- ( ) 4 5 ( N.K. BILLAIYA ) ( MAHAVIR PRASAD ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 28/09/2017 PRITI YADAV, SR.PS !'# $#! # COPY OF THE ORDER FORWARDED TO : 1. !$' / THE APPELLANT 2. ($' / THE RESPONDENT. 3. 67- + 8- / CONCERNED CIT 4. + 8- 4!5 / THE CIT(A)-I, VADODARA. 5. 9:;-67 !.!672 ! / DR, ITAT, AHMEDABAD 6. ;<=, # GUARD FILE. % & / BY ORDER, (9-- //TRUE COPY// '/& () ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD TRUE COPY