Shri Kishor Gordhanbhai Jaksania, RAJKOT-GUJARAT V. The Deputy Commissioner of Income Tax, Central Circle-2, RAJKOT-GUJARAT

ITSSA 30/RJT/2018

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3734 (ITAT-RAJKOT)
• Duration Of Justice: 4 year(s) 5 month(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 28-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: DEVINABEN PATEL
• Keywords: Set aside
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT Before: Shri Waseem Ahmed, Accountant Member And Shri Siddhartha Nautiyal, Judicial Member Shri Kishorbhai G. Jakasania, 601, 602, New Empire Building, Indira Circle, University Raod, Rajkot PAN: ABWPJ0593Q (Appellant) Vs The Deputy Commissioner of Income Tax, Central Circle-2, Rajkot (Respondent) Assessee by: Shri Devinaben Patel, A.R. Revenue by: Shri Sanjeev Jain, CIT-D.R. Date of hearing : 27-06-2022 Date of pronouncement : 29-06-2022 आदेश/ORDER PER BENCH:- These four appeals filed by assessee for A.Ys. 2006-07, 2007-08, 2010-11 & 2011-12 arise from orders of the CIT(A)-1, Rajkot dated 05-01- 2018, in Appeal Nos. CIT(A)-I/Rjt/0102/2015-16, CIT(A)-I/Rjt/0104/15-16, CIT(A)-I/Rjt/0101/2015-16 & CIT(A)-I/Rjt/0100/2015-16 , in proceedings under section 271(1)(c) and 271AAA of the Income Tax Act, 1961; in short “the Act”. IT(SS)A Nos. 28, 29, 30 & 31 /Rjt/2018 Assessment Year 2006-07, 2007-08, 2010-11 & 2011-12 I.T(SS).A Nos. 28, 29, 30 & 31/Rjt/2018 Page No Shri Kishor Gordhanbhai Jaksania vs. Dy. CIT 2 2. The assessee has raised the following grounds of appeals:- IT(SS)A No. 28/Ahd/2018 “1. The learned Commissioner of Income Tax, (Appeal)-1, Rajkot has erred in dismissing the appeal and whereby upholding the levied the penalty u/s. 271(1)(c) of the I.T. Act of Rs. 1,30,000/- is unwarranted, unjustified and bad in law. Your applicant reserves the right in addition or alteration in the grounds of appeal at the time of hearing.” IT(SS)A No. 29/Ahd/2018 “1. The learned Commissioner of Income Tax, (Appeal)-1, Rajkot has erred in dismissing the appeal and whereby upholding the levied the penalty u/s. 271(1)(c) of the I.T. Act of Rs. 1,58,050/- is unwarranted, unjustified and bad in law. Your applicant reserves the right in addition or alteration in the grounds of appeal at the time of hearing.” IT(SS)A No. 30/Ahd/2018 “1. The learned Commissioner of Income Tax, (Appeal)-1, Rajkot has erred in dismissing the appeal and whereby upholding the levied the penalty u/s. 271AAA of the I.T. Act of Rs. 1,50,000/- is unwarranted, unjustified and bad in law. Your applicant reserves the right in addition or alteration in the grounds of appeal at the time of hearing.” I.T(SS).A Nos. 28, 29, 30 & 31/Rjt/2018 Page No Shri Kishor Gordhanbhai Jaksania vs. Dy. CIT 3 IT(SS)A No. 31/Ahd/2018 “1. The learned Commissioner of Income Tax, (Appeal)-1, Rajkot has erred in dismissing the appeal and whereby upholding the levied the penalty u/s. 271AAA of the I.T. Act of Rs. 1,50,000/- is unwarranted, unjustified and bad in law. Your applicant reserves the right in addition or alteration in the grounds of appeal at the time of hearing.” 3. Since the issues involved in all the appeals are common, they are being disposed of by a common order. IT(SS)A- 28/Rjt/ 2018 and IT(SS)A- 29/ Rjt/ 2018 for A.Y. 2006-07 & 2007-08 4. At the outset, the counsel for the assessee submitted that the issue is covered in favour of the assessee since the matter relates to levy of penalty under section 271(1)(c) of the Act for the above-mentioned years, which had been levied pursuant to additions made in the quantum proceedings. However, since the appeal of the assessee has been decided in favour of the assessee by the ITAT, Rajkot Bench in the assessee’s own appeal, the penalty under section 271(1)(c) of the Act no longer survives and hence the appeal may be decided accordingly. The Ld. DR has also not objected to the argument put forth by the counsel for the assessee. I.T(SS).A Nos. 28, 29, 30 & 31/Rjt/2018 Page No Shri Kishor Gordhanbhai Jaksania vs. Dy. CIT 4 5. The brief facts of the case are that the Ld. Assessing Officer vide orders dated 26-03-2015 levied penalty under section 271(1)(c) of the Act amounting to Rs. 1,30,000/- for assessment year 2006-07 and penalty under section 271(1)(c) of the Act amounting to ₹ 1,58,050/ - for assessment year 2007-08. The impugned penalty had been imposed with respect to addition of ₹ 5 lakhs for the respective years, which was made on the basis of seized documents to the effect that agricultural income has been “arranged” by the assessee. The said addition was confirmed in quantum appeal by Ld. CIT(Appeals). Accordingly, Ld. CIT(Appeals) held that since the agricultural income was held to be non-genuine as per order of Ld. CIT(Appeals) in quantum proceedings, penalty under section 271(1)(c) of the Act was liable to be upheld. 6. Now we note that since the issue in quantum proceedings have been decided in favour of the assessee, in respect of the above issues for assessment years 2006-07 and assessment year 2007-08 by the ITAT, Rajkot bench in ITA number 17/Rjt/2014 for assessment year 2006-07 and 18/Rjt/2014 for assessment 2007-08, a copy of above judgement having been placed before us for records, in our view, the penalty u/s 271(1)(c) of the Act is liable to be set aside for the impugned assessment years. 7. In the result, the appeals of the assessee are allowed for assessment years 2006-07 and 2007-08. IT(SS)A 30/Rjt/2018 and IT(SS)A 31/Rjt/2018 I.T(SS).A Nos. 28, 29, 30 & 31/Rjt/2018 Page No Shri Kishor Gordhanbhai Jaksania vs. Dy. CIT 5 8. At the outset, the counsel for the assessee submitted that the issue is covered in favour of the assessee since the matter relates to levy of penalty under section 271AAA of the Act for the above-mentioned years, which had been levied pursuant to additions made in the quantum proceedings. However, since the appeal of the assessee has been decided in favour of the assessee by the ITAT, Rajkot Bench in the assessee’s own appeal, the penalty under section 271AAAof the Act no longer survives and hence the appeal may be decided accordingly. The Ld. DR has also not objected to the argument put forth by the counsel for the assessee. 9. The brief facts of the case are that the Ld. Assessing Officer vide orders dated 26-03-2015 levied penalty under section 271AAA of the Act amounting to Rs. 1,50,000/- for assessment years 2006-07 and 2007-08 respectively.The penalty was levied with respect to addition of ₹ 15 lakhs which was made on the basis of statement under section 132(4) recorded during search operation for both the years respectively. Since the said additions were confirmed by Ld. CIT(Appeals) in quantum appeal for assessment years 2010-11 and 2011-12, Ld. CIT(Appeals) in penalty appeal held that penalty under section 271AA of the Act was liable to be upheld. 10. Now we note that since the issue in quantum proceedings have been decided in favour of the assessee, in respect of the above issues for assessment years 2010-11 and assessment year 2011-12 by the ITAT, Rajkot bench in ITA number 19/Rjt/2014 for assessment year 2010-11 and ITA Number 20/Rjt/2014 for assessment 2011-12, a copy of above judgement having been placed before us for records, in our view, the penalty u/s I.T(SS).A Nos. 28, 29, 30 & 31/Rjt/2018 Page No Shri Kishor Gordhanbhai Jaksania vs. Dy. CIT 6 271AAA of the Act is liable to be set aside for both the impugned assessment years. 11. In the result, the appeals of the assessee are allowed for assessment years 2010-11 and 2011-12. 12 In the combined result, all the four appeals of the assessee are allowed. Order pronounced in the open court on 29-06-2022 Sd/- Sd/- (WASEEM AHMED) (SIDHHARTHA NAUTIYAL) ACCOUNTANT MEMBER JUDICIAL MEMBER Rajkot : Dated 29/06/2022 आदेश क त ल प अ े षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order, Assistant Registrar, Income Tax Appellate Tribunal, Rajkot