M/s. R.B. Construction, Nadiad V. The Income Tax Officer, Ward-1, Nadiad

ITSSA 100/AHD/2015

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 3637 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 9 month(s) 14 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 01-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 17-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Section: 153A; 132

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ./ IT(SS)A.NO.99 TO 102/AHD/2015 / ASSTT. YEAR: 2003-2004 TO 2006-2007 M/S.R.B. CONSTRUCTION G-21, GHANTAKARNA COMPLEX GUNJ BAZAR NADIAD 387 001. PAN : AACFR 3677 A VS. ITO, WARD - 4 NADIAD. ( APPLICANT ) ( RESPONENT ) ASSESSEE BY : SHRI P.M. MEHTA WITH SHRI G.M. THAKKOR REVENUE BY : SHRI DINESH SINGH, SR.DR / DATE OF HEARING : 30/01/2018 / DATE OF PRONOUNCEMENT: 01/02/2018 +,/ O R D E R PER BENCH: THIS BUNCH OF FOUR APPEALS IS DIRECTED AT THE INSTA NCE OF THE ASSESSEE AGAINST COMMON ORDER OF THE LD.CIT(A)-2, VADODARA D ATED 28.1.2015 PASSED FOR THE ASSESSMENT YEARS 2003-04 TO 2006-07. SINCE ONLY ONE COMMON ISSUE IS RAISED BY THE ASSESSEE IN THESE APPEALS, WE DISPOSE OF ALL THESE APPEALS BY THIS COMMON ORDER. 2. IN THESE APPEALS, ASSESSEE CHALLENGES IMPOSITION OF PENALTY UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 BY TH E LD.AO WHICH WERE IT(SS)A NO.99 TO102/AHD/2015 2 CONFIRMED BY THE LD.CIT(A) VIDE IMPUGNED ORDER. AM OUNTS OF PENALTY IMPOSED AGAINST EACH ASSESSMENT YEAR ARE AS UNDER: ASSTT.YEAR AMOUNT (RS.) 2003-04 RS.2,65,471/- 2004-05 RS.1,23,088/- 2005-06 RS.1,66,504/- 2006-07 RS. 1,78,967/- 3. FACTS IN ALL CASES ARE COMMON EXCEPT QUANTUM, WH ICH WE BRIEFLY DRAW FROM IMPUGNED ORDER OF THE LD.CIT(A). THAT SEARCH U/S 132 WAS CARRIED OUT IN THE RAMESHBHAI BABUBHAI SHAH GROUP ON 03/04/2008. D URING SEARCH, WITH CERTAIN INCRIMINATING DOCUMENTS AND A LAPTOP WAS AL SO SEIZED. IN THE SAID LAPTOP, THE ACCOUNTS OF 65 ENTITIES INCLUDING THE A SSESSEE WERE FOUND. AS PER THE STATEMENT OF THE KEY PERSON OF THE GROUP SHRI R AMESHBHAI BABUBHAI SHAH, THE LAPTOP CONTAINED UNACCOUNTED BUSINESS TRANSACTI ONS/ INFORMATION OF UNACCOUNTED BUSINESS BELONGING TO HIM. HOWEVER, PRO CEEDING WERE INITIATED IN THE CASE OF THE ASSESSEE AND THE ASSESSMENT U/S 153C R.W.S 153A WAS COMPLETED ON 30/12/2010 ASSESSING TOTAL INCOME AT R S.7,49,980/- AS AGAINST THE INCOME DECLARED BY THE ASSESSEE AT RS.27,610/- FOR AY 2003-04 AT RS. 3,49,015/- AS AGAINST THE INCOME DECLARED BY THE AS SESSEE AT RS.5,770/- FOR AY 2004-05, ASSESSING TOTAL INCOME AT RS.4,9,405/- AS AGAINST THE INCOME DECLARED BY THE ASSESSEE AT RS.34,380/- FOR A.Y.2005-06 AND ASSESSING TOTAL INCOME AT RS.5,51,630/- AS AGAINST THE INCOME DECLARED BY THE ASSESSEE AT RS.19,940/- FOR AY 2006-07. THE FIRST APPELLATE AUTHORITY HAS C ONFIRMED THE IMPUGNED ORDER AGAINST WHICH APPEAL IS PREFERRED BEFORE TRIB UNAL. DURING THE PENDENCY OF QUANTUM PROCEEDINGS BEFORE THE TRIBUNAL, THE AO INITIATED PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT, WHI CH WAS CULMINATED INTO IMPOSITION OF PENALTY FOR THE RESPECTIVE ASSESSMENT YEARS. THEY WERE CHALLENGED BEFORE THE FIRST APPELLATE AUTHORITY BUT NO AVAIL. HENCE, ASSESSEE IT(SS)A NO.99 TO102/AHD/2015 3 IS BEFORE US CHALLENGING PENALTY UNDER SECTION 271( 1)(C) FOR THESE FIVE ASSESSMENT YEARS. 4. AT THE VERY OUTSET, THE LD.COUNSEL FOR THE ASSES SEE SUBMITTED THAT THE ASSESSEE HAS SUCCEEDED IN THE QUANTUM PROCEEDINGS B EFORE THE TRIBUNAL. THE TRIBUNAL IN GROUP OF CASES IN ITA NO.68 TO 73/AHD/2 012 AND OTHERS IN THE CASE OF M/S.PARSHWA CORPORATION AND OTHERS, THE CAS E OF THE ASSESSEE WAS ALSO DECIDED AS MENTIONED AT SR.NO.27 TO 31 IN ITA NO.48 TO 52/AHD/2012 VIDE ORDER DATED 11.9.2015. THE TRIBUNAL ALLOWED A PPEALS OF THE TRIBUNAL VIDE ABOVE ORDER BY QUASHING THE ASSESSMENT ORDERS PASSED UNDER SECTION 153C R.W.S. 153A OF THE INCOME TAX ACT. THEREFORE, THE LD.COUNSEL FOR THE ASSESSEE PRAYED THAT SINCE NOTICE UNDER SECTION 153 C OF THE ACT HAVE BEEN QUASHED AND CONSEQUENT THE ASSESSMENT ORDER BECAME NULL AND VOID, THE QUESTION OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT DOES NOT ARISE IN SUCH ORDER, AND THEREFORE, THE PENALTY UNDER SECTION 271 (1)(C) IS LIABLE TO BE CANCELLED. ASSESSEE HAS PLACED ON RECORD A COPY OF ORDER OF THE TRIBUNAL IN ASSESSEES CASE CITED SUPRA. ON THE OTHER HAND, THE LD.DR DID NOT DISPUTE THIS FACTUAL POSITION. 5. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, W E HAVE GONE THROUGH THE RECORD CAREFULLY. WE FIND THAT SUB-CLAUSE (III) OF SECTION 271(1)(C) PROVIDES MECHANISM FOR QUANTIFICATION OF PENALTY. IT CONTEM PLATES THAT THE ASSESSEE WOULD BE DIRECTED TO PAY A SUM IN ADDITION TO TAXES , IF ANY, PAYABLE HIM, WHICH SHALL NOT BE LESS THAN, BUT WHICH SHALL NOT E XCEED THREE TIMES THE AMOUNT OF TAX SOUGHT TO BE EVADED BY REASON OF CONC EALMENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME. IN OTHER WORDS, THE QUANTIFICATION OF THE PENALTY IS DEPENDED UPON THE ADDITION MADE TO THE INCOME OF THE ASSESSEE. SINCE BASIS FOR VISITING T HE ASSESSEE WITH PENALTY HAS BEEN EXTINGUISHED BY QUASHING THE NOTICE UNDER SECT ION 153C AND CONSEQUENT IT(SS)A NO.99 TO102/AHD/2015 4 ASSESSMENT ORDER BY THE TRIBUNAL IN ITS ORDER DATED 11.9.2015 (SUPRA) IN THE QUANTUM APPEALS OF THE ASSESSEE THE IMPUGNED PENALT Y DOES NOT SURVIVE, AND LIABLE TO BE CANCELLED. ACCORDINGLY PENALTY UNDER S ECTION 271(1)(C) OF THE ACT STANDS CANCELED. APPEALS OF THE ASSESSEE ARE THUS A LLOWED. 5. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLOW ED. ORDER PRONOUNCED IN THE COURT ON 1 ST FEBRUARY, 2018 AT SAHMEDABAD. SD/- SD/- ( PRADIP KUMAR KEDIA ) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER