Shri Suresh B. Chaudhary, Surat V. The Income tax Officer,Ward-6(4), Surat

MA 53/AHD/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 5974 (ITAT-AHMEDABAD)
• Duration Of Justice: 10 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-01-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2003-2004
• Appeal Filed On: 15-03-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R K DHANISTA
• Assessee Lawyers: DIVYAKANT PARIKH
• Keywords: Unexplained cash credit

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD (BEFORE SHRI BHAVNESH SAINI, JM AND A. N. PAHUJA, A M) M. A. NO.53/AHD/2010 (IN ITA NO.1374/AHD/2008 A. Y. 2003-04) CHAUDHRI SURESH BABUBHAI, GAYATRI NAGAR SOCIETY, STATION ROAD, DIST. SURAT VS THE INCOME TAX OFFICER, WARD-6(4), SURAT PA NO. AATPC 2565 R (APPLICANT) (RESPONDENT) APPLICANT BY SHRI DIVYAKANT PARIKH, AR RESPONDENT BY SRI R. K. DHANISTA, SR. DR ORDER PER BHAVNESH SAINI : BOTH THE PARTIES ARE HEARD. THIS MISC. APPLICATION IS FILED BY THE ASSESSEE IN THE PENALTY APPEAL IN ITA NO.1374/AHD/2008. IT IS SPECIFICALLY NOTED IN THE O RDER OF THE TRIBUNAL THAT PENALTY ON THE AMOUNT OF ADDITION OF RS.1,89,5 00/- WAS NOT PRESSED. EVEN THIS STATEMENT MADE BY THE LEARNED CO UNSEL FOR THE ASSESSEE BEFORE THE TRIBUNAL IS NOT DISPUTED BEFORE US TODAY AT THE TIME OF HEARING OF THE MISC. APPLICATION. THE LEARN ED COUNSEL FOR THE ASSESSEE HAS HOWEVER SUBMITTED THAT HE HAS FILED WR ITTEN SUBMISSION DATED 24-02-2009 ON THE QUESTION OF LEGALITY OF THE PENALTY WHICH SHOULD HAVE BEEN CONSIDERED. ONCE, THE LEARNED COUN SEL FOR THE ASSESSEE HAS MADE THE STATEMENT DURING THE COURSE O F HEARING THAT HE WOULD NOT BE PRESSING THE ISSUE OF PENALTY ON TH E ABOVE AMOUNT; THERE IS NO REASON FOR HIM TO REFER THE WRITTEN SUB MISSION. IT IS SEEN, MA NO.53/AHD/2010 (IN ITA NO.1374/AHD/2008 CHAUDHRI SURESH BABUBHAI VS ITO W-6(1), SURAT 2 GENERALLY PARTIES FILE BULKY PAPERS BUT ONLY FEW PA PERS ARE REFERRED TO DURING THE HEARING. IT IS ADMITTED CASE WHERE PENAL TY WAS NOT PRESSED ON THE ADDITION OF RS.1,89,500/-. THEREFORE, THERE WAS NO REASON FOR THE LEARNED COUNSEL FOR THE ASSESSEE TO HAVE REFERR ED TO THE SAID WRITTEN SUBMISSION. IT MAY ALSO BE NOTED THAT PENAL TY WAS IMPOSED BY THE AO ON AN AMOUNT OF RS.2,02,456/- AND RS.1,89,50 0/-. THE LEARNED CIT(A) ON QUANTUM APPEAL NOTED THAT THE ADD ITION OF RS.1,89,500/- AS UNEXPLAINED CREDIT WAS MADE ON AGR EED BASIS, THEREFORE, THE LEARNED COUNSEL FOR THE ASSESSEE REQ UESTED FOR PERMISSION TO WITHDRAW THIS GROUND. THE TRIBUNAL WH ILE CONSIDERING THE QUANTUM APPEAL OF THE ASSESSEE IN ITA NO.2570/A HD/2006 DELETED THE ADDITION OF RS.2,02,456/- AS WELL AS CA NCELLED THE PENALTY ON THE SAID AMOUNT. THE ADDITION OF RS.1,89,500/- O N QUANTUM AND PENALTY WAS NOT PRESSED BEFORE THE TRIBUNAL AS WAS NOT PRESSED BEFORE THE LEARNED CIT(A) ON MERIT. THEREFORE, IT I S MOST UNFORTUNATE TO NOTE THAT THE LEARNED COUNSEL FOR THE ASSESSEE H AS CHANGED HIS STATEMENT NOW AS AGAINST STATEMENT MADE BEFORE THE TRIBUNAL ON QUANTUM AND PENALTY AS WELL AS BEFORE THE LEARNED C IT(A) WITHOUT ANY JUSTIFICATION. THERE IS NO MISTAKE APPARENT ON RECORD. MISC. APPLICATION OF THE ASSESSEE IS REJECTED. 2. IN THE RESULT, THE MISC. APPLICATION OF THE ASSE SSEE IS DISMISSED. ORDER DICTATED AND PRONOUNCED IN THE OPEN COURT ON 28-01-2011 SD/- SD/- (A N. PAHUJA) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 28-01-2011 LAKSHMIKANT/- MA NO.53/AHD/2010 (IN ITA NO.1374/AHD/2008 CHAUDHRI SURESH BABUBHAI VS ITO W-6(1), SURAT 3 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR, ITAT, AHMEDABAD