M/s. Jamadar Transport Co., Bharuch V. The Income Tax Officer, Ward-1, Bharuch

ITSSA 380/AHD/2013

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 2335 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 9 month(s) 24 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 01-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 07-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M K PATEL

Judgement Text

, B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER IT(SS)A.NO.377 TO 381/AHD/2013 AND IT(SS)A.NO.2408/AHD/2013 [ASSTT.YEAR 2001-02 TO 2002-03 AND 2004-05 TO 2007-08 ] M/S.JAMADHAR TRANSPORT CO. DANDIA BAZAR BHARUCH 392 01. PAN : 392 001. VS THE ITO, WARD - 1 BHARUCH. ./ / (APPELLANT) 12 ./ / (RESPONDENT) ASSESSEE BY : SHRI M.K. PATEL, AR REVENUE BY : SHRI JAMESH KURIAN, SR.DR / DATE OF HEARING : 25/07/2016 / DATE OF PRONOUNCEMENT: 01/08/2016 34/ O R D E R PER BENCH : PRESENT SIX APPEALS ARE DIRECTED AT THE INSTANCE OF THE ASSESSEE AGAINST SEPARATE ORDERS OF EVEN DATED 17.7.2013 PAS SED BY THE LD.CIT(A)- III, BARODA IN THE ASSTT.YEARS 2001-02 TO 2002-03 AND 2004-05 TO 2007- 08. IT(SS)A.NO.377/AHD/2013 (6 APPEALS) 2 2. SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT THE L D.CIT(A) HAS ERRED IN CONFIRMING PENALTY IMPOSED BY THE LD.AO UNDER SECTI ON 271(1)(C) OF THE INCOME TAX ACT, 1961. 3. THE LD.COUNSEL FOR THE ASSESSEE, AT THE VERY OUT SET, SUBMITTED THAT ADDITIONS TO THE INCOME OF THE ASSESSEE WHICH LEAD THE AO TO VISIT THE ASSESSEE WITH PENALTY UNDER SECTION 271(1)(C) OF TH E ACT HAS ALREADY BEEN SET ASIDE BY THE TRIBUNAL IN IT(SS)A.NO.288 TO 292 AND 1067/AHD/2010. HE POINTED OUT THAT THE TRIBUNAL HA S SET ASIDE THE ISSUES TO THE FILE OF THE CIT(A) FOR FRESH ADJUDICATION VI DE ORDER DATED 2.7.2010. HE PLACED ON RECORD COPY OF THE TRIBUNALS ORDER. ON THE STRENGTH OF THIS ORDER, HE CONTENDED THAT THE ISSUE WITH REGARD TO LEVY OF PENALTY BE ALSO SET ASIDE TO THE FILE OF THE CIT(A) FOR FRESH ADJUDICATION. THE LD.DR WAS UNABLE TO CONTROVERT THE CONTENTIONS OF THE LD. COUNSEL FOR THE ASSESSEE. 4. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, W E HAVE GONE THROUGH THE RECORD CAREFULLY. WE HAVE PERUSED THE ORDERS OF THE TRIBUNAL. WE ARE SATISFIED THAT THE ISSUES WITH RE GARD TO THE DETERMINATION OF THE INCOME OF THE ASSESSEE HAS BEE N SET ASIDE TO THE FILE OF THE LD.CIT(A) FOR FRESH ADJUDICATION. SUB-CLAUS E (III) OF SECTION 271(1)(C) PROVIDES MECHANISM FOR QUANTIFICATION OF PENALTY. IT CONTEMPLATES THAT THE ASSESSEE WOULD BE DIRECTED TO PAY A SUM IN ADDITION TO TAXES, IF ANY, BEFORE HIM, WHICH SHALL NOT BE LESS THAN , BUT WHICH SHALL NOT EXCEED THREE TIMES THE AMOUNT OF TA X SOUGHT TO BE EVADED BY REASON OF CONCEALMENT OF INCOME AND FURNI SHING OF INACCURATE PARTICULARS OF INCOME. IN OTHER WORDS, THE QUANTIF ICATION OF THE PENALTY IS IT(SS)A.NO.377/AHD/2013 (6 APPEALS) 3 DEPENDED UPON THE ADDITIONS MADE TO THE INCOME OF T HE ASSESSEE. UPTO AND UNTIL, THE ISSUE REGARDING DETERMINATION OF THE TAXABLE INCOME IS FINALIZED, PENALTY UNDER SECTION 271(1)(C) OF THE A CT CANNOT BE IMPOSED UPON THE ASSESSEE. THE DETERMINATION OF TAXABLE IN COME OF THE ASSESSEE IS SUBJUDICED BEFORE THE LD.FIRST APPELLATE. THERE FORE, WE SET ASIDE THE IMPUGNED ORDERS AND RESTORE ALL THESE ISSUES TO THE FILE OF THE LD.CI(A). THE LD.FIRST APPELLATE AUTHORITY SHALL DECIDE THE P ENALTY APPEALS AFTER ADJUDICATION OF THE QUANTUM APPEALS. IN VIEW OF TH E ABOVE, ALL THESE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSE. 5. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE A RE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 1 ST AUGUST, 2016 AT AHMEDABAD. SD/- SD/- ( ANIL CHATURVEDI) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 01/08/2016