Shri Rajesh Pravinchandra Shah, HUF, Ahmedabad V. The Income Tax Officer, Ward-2(2)(4), Ahmedabad

MA 233/AHD/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 8379 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 29-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 271(1)(c)

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH SMC BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER MISC. APPLICATION NO. 233/AHD/2019 WITH ITA NO.1952/AHD/2017 / ASSESSMENT YEAR: 2009-10 RAJESH PRAVINCHANDRA SHAH (HUF) 32, ELLORA PARK SOCIETY NARANGPURA AHMEDABAD. VS ITO, WARD-2(2)(4) AHMEDABAD. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI HARDIK VORA, AR REVENUE BY : SHRI SATISH SOLANKI, SR.DR / DATE OF HEARING : 02/10/2019 /DATE OF PRONOUNCEMENT : 9/10/2019 O R D E R PRESENT MA IS DIRECTED AT THE INSTANCE OF THE ASSES SEE CONTENDING THAT THE APPEAL WAS DISMISSED BY THE TRIBUNAL VIDE ORDER DATED 26.42019 ON ACCOUNT OF NON-PROSECUTION. THE TRIBUNAL HAS NO T ADJUDICATED THE ISSUES ON MERIT. THE LD.COUNSEL OF THE ASSESSEE FU RTHER SUBMITTED THAT THIS IS AN APPEAL AGAINST LEVY OF PENALTY, AND THE ADDITIONS QUA WHICH THIS PENALTY HAS BEEN IMPOSED HAS ALREADY BEEN DELE TED BY THE TRIBUNAL. HE PRAYED THAT APPEAL BE RESTORED TO ITS ORIGINAL N UMBER, AND BE HEARD ON MERIT. 2. ON DUE CONSIDERATION OF THE ABOVE FACTS AND CIRC UMSTANCES, I AM OF THE VIEW THAT THE APPEAL OF THE ASSESSEE WAS DISMIS SED IN LIMINE WITHOUT MA NO.233/AHD/2019 WITH ITA NO.1952/AHD/2017 - 2 - ADJUDICATING THE ISSUE ON MERIT. THEREFORE, MA IS ALLOWED AND THE APPEAL IS RESTORED TO ITS ORIGINAL NUMBER. 3. WITH THE CONCURRENCE OF THE LD.REPRESENTATIVES, I TOOK THE APPEAL FOR ADJUDICATION. IT EMERGES OUT THAT THE ASSESSEE HAS FILED ITS RETURN OF INCOME ON 29.9.2009 DECLARING TOTAL INCOME OF RS.1, 57,040/- AND ASSESSMENT WAS FINALIZED ON 27.12.011 DETERMINING T OTAL INCOME AT RS.48,26,720/-. THIS ADDITION WAS MADE ON ACCOUNT OF SHORT TERM CAPITAL GAIN ARISEN TO THE ASSESSEE ON SALE OF A PLOT. THE LD.COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET SUBMITTED THAT THIS ADD ITION HAS BEEN DELETED BY THE TRIBUNAL VIDE ORDER IN ITA NO.1431/AHD/2014 DATED 24.5.2018. HE PLACED ON RECORD COPY OF THE TRIBUNALS ORDER. THE LD.DR ON THE OTHER HAND DID NOT DISPUTE THIS FACTUAL POSITION OF THE CASE. 4. AFTER HEARING BOTH THE SIDES, AND A PERUSAL OF T HE ORDER OF THE TRIBUNAL CITED SUPRA, WE FIND THAT, ADDITION ON WHI CH IMPUGNED PENALTY HAS BEEN IMPOSED WAS DELETED BY THE TRIBUNAL IN THE QUANTUM APPEAL OF THE ASSESSEE IN ITA NO.1431/AHD/2014 CITED (SUPRA). THEREFORE, QUESTION OF IMPOSITION OF PENALTY UNDER SECTION 271 (1)(C) DOES NOT ARISE NOW. SUB-CLAUSE (III) OF SECTION 271(1)(C) PROVIDE S MECHANISM FOR QUANTIFICATION OF PENALTY. IT CONTEMPLATES THAT TH E 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 EXCEED THREE TIMES THE AMOUNT OF TAX SOUGHT TO BE EVADED BY REASON OF CONCEALMENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME. IN OTHER WORDS, THE QUANTIFICATION OF THE PENALTY IS DEPENDED UPON THE ADDITIONS MADE TO THE INCOME OF THE ASSESSEE. IN THE PRESENT CASE, A DDITION HAS BEEN DELETED BY THE TRIBUNAL VIDE ABOVE ORDER, THEREFORE , THE IMPUGNED MA NO.233/AHD/2019 WITH ITA NO.1952/AHD/2017 - 3 - PENALTY DOES NOT SUSTAIN, AND THE SAME STANDS AUTOM ATICALLY CANCELLED. THEREFORE, I ALLOW THE GROUND RAISED BY THE ASSESSE E. 5. IN THE RESULT, BOTH MA AND APPEAL OF THE ASSESSE E ARE ALLOWED. PRONOUNCED IN THE OPEN COURT ON 9 TH OCTOBER, 2019. SD/- (RAJPAL YADAV) JUDICIAL MEMBER