Shri Jignesh N. Thakor, Ahmedabad V. The Income Tax Officer, Ward-7(1), Ahmedabad

ITSSA 236/AHD/2015

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2604 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 08-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 05-05-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 23-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P SHARMA
• Section: 143(3)

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER ./ I.T.(SS)A. NO. 236/AHD/2015 ( ASSESSMENT YEAR: 2008-09) JIGNESH N. THAKOR RANGOLI FARM, SHILAJI, TALUKA: DASKORI, AHMEDABAD - 380058 / VS. ITO WARD-7(1), AHMEDABAD ./ ./ PAN/GIR NO. : AAW PT1 866 F ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SAKAR SHARMA, AR / RESPONDENT BY : O. P. SHARMA, CIT DR DATE OF HEARING 31/12/2018 !'# / DATE OF PRONOUNCEMENT 08/03/2019 / O R D E R PER MAHAVIR PRASAD - JM: THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAI NST THE CONFIRMATION OF PENALTY LEVIED BY THE ASSESSING OFF ICER CIT(A) ORDER NO. CIT(A)-3/ITO/WD.3(3)(2)/290/2014-15 ORDER DATED 03.09.2015 ARE ARISING FROM PENALTY ORDER DATED 28.03.2014. 2. IN THIS CASE ASSESSEE FILED RETURN OF INCOME OF ASSESSMENT 2008- 09 DECLARING TOTAL INCOME AT RS. 7,24,230/- AND AGR ICULTURE INCOME OF RS. 1,85,690/-. ASSESSMENT U/S 143(3) R.W.S. 153A( 1)(B) OF THE ACT WAS FINALIZED AT THE ASSESSED INCOME OF RS. 27,24,2 30/- AFTER MAKING AN ADDITION OF RS. 20,00,000/- IN THE REPLY OF UNAC COUNTED ITA NO.236/AHD/2015 [JIGNESH N. THAKOR VS. ITO] A.Y. 2008-09 - 2 - BROKERAGE/COMMISSION. PENALTY PROCEEDINGS WERE SEP ARATELY INITIATED ON THE ABOVE MENTIONED ADDITION. AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER THE ASSESSEE PREFERRED THE APPEAL BEFORE THE LD. CIT(A) PARTLY ALLOWED THE APPEAL OF THE ASSESSEE AN D DELETED AN ADDITION OF RS. 19,60,000/- IN RESPECT OF UNACCOUNT ED BROKERAGE/COMMISSION AND SUSTAINED ADDITION OF RS. 40,000/-. OBSERVING THAT A SUM OF RS. 20,00,000/- RECEIVED DU RING YEAR UNDER CONSIDERATION WHICH WAS AT THE RATE OF 16% IN REAL ESTATE STATEMENT THE HIGHEST BROKERAGE IS PAID 2% AND IT WAS OBSERVED TH AT THE COMMISSION HAS NOT BEEN RECORDED IN THE BOOKS OF ACCOUNTS OF T HE ASSESSEE. 3. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE RELEVANT RECORDS IN THIS CASE PENALTY IMPOSED ON ESTIMATION BASIS BECAUSE AO MADE ADDITION OF RS. 27,24,230/- AFTER TAKING INTO ACCOUNT AN ADDITIONAL INCOME OF RS. 20,00,000/-. AND IN APPEA L CIT(A) DELETED ADDITION OF RS. 19,60,000/- AND SUSTAINED RS. 40,00 0/- BY OBSERVING THAT 18% IS VERY HIGH BROKERAGE AND SAME IS NOT REA LISTIC AND IN REAL ESTATE TRANSACTION THE HIGHEST BROKERAGE IS 2% ON T OTAL SALE CONSIDERATION. AS WE CAN SEE ABOVE RS. 40,000/- AD DITION WAS SUSTAINED ON THE BASIS OF ESTIMATION. SO, ACCORDIN G TO OUR CONSIDERED OPINION IN SUCH CASE PENALTY CANNOT BE LEVIED. THU S, WE DIRECT THE AO TO DELETE THE PENALTY OF RS. 12,360/-. 4. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED. SD/- SD/- (PRADIP KUMAR KEDIA) (MAHAVIR PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 08/03/2019 TANMAY TRUE COPY !'#' / COPY OF ORDER FORWARDED TO:- &. / REVENUE 2. / ASSESSEE (. )*+ , / CONCERNED CIT THIS ORDER PRONOUNCED IN OPEN COURT ON 08/03/ 2019 ITA NO.236/AHD/2015 [JIGNESH N. THAKOR VS. ITO] A.Y. 2008-09 - 3 - 4. ,- / CIT (A) /. 012 33*+4 *+#4 56) / DR, ITAT, AHMEDABAD 7. 289 : / GUARD FILE. BY ORDER / 4 /5 *+#4 56) 1.DATE OF DICTATION ON 06.03.2019 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING MEMBER 06.03.2019 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 08.03.2019 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 08.03.2019 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 08.03.2019 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 08.03.2019 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER