The ACIT, Circle-5, Surat V. Shri Prafulbhai @ Rohitbhai J.Shah, Surat

ITSSA 111/AHD/2012

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 0790 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 23-07-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 20-07-2015
• Assessment Year: 2002-2003
• Appeal Filed On: 16-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA SINGH
• Assessee Lawyers: SN SOPARKARAR

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD .. , ( .) , BEFORE SHRI G.D. AGARWAL,VICE PRESIDENT (AZ) AND SHRI KUL BHARAT, JUDICIAL MEMBER (SS) ./ I.T(SS).A. NO.111/AHD/2012 ( / ASSESSMENT YEAR : 2002-03) THE ACIT CIRCLE-5 SURAT / VS. SHRI PRAFULBHAI @ ROHITBHAI J.SHAH 2/4456, SHIVDAS ZAVERI NI SHERI SAGRAMPURA, SURAT-395 002 % & ./ ./ PAN/GIR NO. : AFXPS 8412 G ( %( / APPELLANT ) .. ( )*%( / RESPONDENT ) %( + / APPELLANT BY : SHRI NARENDRA SINGH, SR.DR )*%( , + / RESPONDENT BY : SHRI S.N.SOPARKAR, AR -. , /& / DATE OF HEARING 20/07/2015 0123 , /& / DATE OF PRONOUNCEMENT 23/07/2015 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-IV, SURAT [CIT(A) IN SHORT] DATED 25/10/2011 PERTAINING TO ASSESSMENT YEAR (AY) 2002-03. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - IT(SS)A NO.111/ AHD/2012 DCIT VS. SH.PRAFULBHAI @ROHITBHAI J.SHAH ASST.YEAR 2002-03 - 2 - 1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE CIT(A)-IV, SURAT HAS ERRED TO DELETE THE PENALTY U/ S.271(1)(C) OF RS.6,09,587/- LEVIED BY THE ASSESSING OFFICER. 2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE CIT(A)- IV, SURAT OUGHT TO HAVE UPHELD THE ORDER OF THE ASS ESSING OFFICER. 3) IT IS THEREFORE, PRAYED THAT THE ORDER OF THE CIT( A)-IV,SURAT MAY BE SET-ASIDE AND THAT OF THE ASSESSING OFFICER RESTORE D. 2. BRIEFLY STATED FACTS ARE THAT THE ASSESSING OFFI CER (AO IN SHORT) FRAMED THE ASSESSMENT U/S.143(3) R.W.S.153A OF THE INCOME TAX ACT,1961 (HEREINAFTER REFERRED TO AS THE ACT) VID E ORDER DATED 28/03/2006. THE AO MADE ADDITION(S) IN RESPECT OF INVESTMENT IN NSCS AND KVPS OF RS.18 LACS AND IN RESPECT OF INTEREST E ARNED ON SUCH INVESTMENT OF RS.1,96,242/-. THE AO ALSO INITIAT ED PENALTY PROCEEDINGS U/S.271(1)(C) OF THE ACT. IN QUANTUM PROCEEDINGS, THE ADDITIONS CAME TO BE CONFIRMED UPTO THE STAGE OF THIS TRIBUNAL (ITAT AHMEDABAD C BENCH) AND THIS TRIBUNAL WAS PLEASED TO CONFIRM TH E ADDITION IN ITA NO.2796/AHD/2006 VIDE ITS ORDER DATED 18/12/2009. THE AO IMPOSED THE PENALTY U/S.271(1)(C) VIDE ORDER DATED 12/05/20 10. THIS ORDER WAS CHALLENGED BEFORE THE LD.CIT(A) AND THE LD.CIT(A) A FTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, DELETED THE PENALTY. AGGRIEVED BY THE ORDER OF THE LD.CIT(A), NOW THE REVENUE IS IN APPEAL BEFO RE US. IT(SS)A NO.111/ AHD/2012 DCIT VS. SH.PRAFULBHAI @ROHITBHAI J.SHAH ASST.YEAR 2002-03 - 3 - 3. THE ONLY EFFECTIVE GROUND IN THIS APPEAL IS AGAI NST THE DELETION OF PENALTY U/S.271(1)(C) OF THE ACT OF RS.6,09,587/- L EVIED BY THE AO. THE LD.SR.DR SUPPORTED THE ORDER OF THE AO. AND SUBMITT ED THAT THE LD.CIT(A) WAS NOT JUSTIFIED IN DELETING THE ADDITIO N. THERE IS NO DISPUTE WITH THE FACT THAT THE ADDITION HAS BEEN CONFIRMED UPTO THE STAGE OF THIS TRIBUNAL. 3.1. ON THE CONTRARY, LD.COUNSEL FOR THE ASSESSEE S HRI S.N.SOPARKAR SUBMITTED THAT THIS ISSUE IS COVERED BY THE EARLIER DECISION OF THE TRIBUNAL (ITAT AHMEDABAD D BENCH) PASSED IN ITA NO.416/AHD /2011 FOR AY 2001-02. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE DECISION OF THE COORDINATE BENCH. W E FIND THAT THE COORDINATE BENCH UNDER THE IDENTICAL FACTS, IN ITA NO.416/AHD/2011 FOR AY 2001-02 VIDE ITS ORDER DATED 14/11/2014, HAS TA KEN A VIEW IN PARA-7 BY OBSERVING AS UNDER:- 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT IS AN UNDISPUTED FACT THAT ADDITIONS WERE MADE BY A.O. AND THE SAME HAS BEEN CONFIRMED IN THE QUANTUM PROCEEDINGS AND ON THE ADDITIONS WHICH HAVE BEEN CO NFIRMED PENALTY U/S 271(L)(C) HAS BEEN LEVIED BY A.O AS FAR AS PENALTY U/S. 271(L)(C) IS CONCERNED, IN THE PRESENT CASE, WE FIN D THAT ASSESSEE HAD FURNISHED EXPLANATION DURING THE COURSE OF ASSE SSMENT IT(SS)A NO.111/ AHD/2012 DCIT VS. SH.PRAFULBHAI @ROHITBHAI J.SHAH ASST.YEAR 2002-03 - 4 - PROCEEDINGS AND THE EXPLANATIONS SUBMITTED BY THE A SSESSEE HAVE NOT BEEN FOUND TO BE FALSE. IT IS SETTLED LAW THAT PENALTY PROCEEDINGS AND ASSESSMENT PROCEEDINGS ARE TWO INDE PENDENT PROCEEDINGS AND THE PENALTY ORDER CANNOT BE SOLELY BASED ON THE REASONS GIVEN IN THE ORIGINAL ORDER OF ASSESSMENT. IT IS WELL SETTLED THAT THE PARAMETERS OF JUDGING THE JUSTIFIC ATION FOR ADDITION MADE IN THE ASSESSMENT CASE OF THE ASSESSEE IS DIFF ERENT FROM THE PENALTY IMPOSED ON. ACCOUNT OF CONCEALMENT OF INCOM E OR FILING INACCURATE PARTICULARS OF INCOME AND THAT CERTAIN DISALLOWANCE/ADDITION COULD LEGALLY BE MADE IN THE ASSESSMENT PROCEEDINGS ON THE PREPONDERANCE OF PROBABILITIES BUT NO PENALTY COULD BE IMPOSED U/S. 271(L)(C) OF THE ACT ON THE PREPONDERANCE OF PROBABILITIES AND REVENUE HAS TO PROVE THAT THE CL AIM OF EXPENSES BY THE ASSESSEE WAS NOT GENUINE OR WAS INFLATED TO REDUCE ITS TAX LIABILITY. FURTHER MERELY BECAUSE ADDITIONS HAVE CO NFIRMED IN APPEAL, IT CANNOT BE THE SOLE GROUND FOR COMING TO THE CONCLUSION THAT ASSESSEE HAS CONCEALED ANY INCOME. CONSIDERING THE AFORESAID AND PECULIAR FACTS OF THE CASE, WE ARE OF THE VIEW THAT IN THE PRESENT CASE NO CASE FOR PENALTY HAS BEEN MADE OUT. WE THUS DIRECT THE DELETION OF PENALTY. 4.1. SINCE THE REVENUE HAS NOT PLACED ANY MATERIAL SUGGESTING THAT THERE IS CHANGE INTO THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, THEREFORE RESPECTFULLY FOLLOWING THE ORDER OF THE C OORDINATE BENCH(SUPRA), WE HEREBY DIRECT THE AO TO DELETE THE PENALTY. THUS, GROUND RAISED IN THE REVENUES APPEAL IS REJECTED. 5. GROUND NOS.2 & 3 ARE GENERAL IN NATURE WHICH REQ UIRE NO INDEPENDENT ADJUDICATION. IT(SS)A NO.111/ AHD/2012 DCIT VS. SH.PRAFULBHAI @ROHITBHAI J.SHAH ASST.YEAR 2002-03 - 5 - 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE COURT ON THURSDAY, THE 23 RD DAY OF JULY, 2015 AT AHMEDABAD. SD/- SD/- ( .. ) ( ) ( . ) ( G.D. AGARWAL ) ( KUL BHARAT ) VICE PRESIDENT (AZ) JUDICIAL MEMBER AHMEDABAD; DATED 23/ 07 /2015 6/..-, .-../ T.C. NAIR, SR. PS !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. %( / THE APPELLANT 2. )*%( / THE RESPONDENT. 3. 789 : / CONCERNED CIT 4. : ( ) / THE CIT(A)-IV, SURAT 5. ;< )-89 , / 893 , 7 / DR, ITAT, AHMEDABAD 6. <= >. / GUARD FILE. / BY ORDER, *; ) //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 20.7.15 (DICTATION-PAD 4- PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ..20.7.15 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.23.7.15 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 23.7.15 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER