ITO, Sunder Nagar V. Sh. Nanak Chand Gupta, Mandi

MA 69/CHANDI/2009

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6319 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 11 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-05-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 06-05-2011
• Assessment Year: 1999-2000
• Appeal Filed On: 15-05-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N K SAINI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES A CHANDIGARH BEFORE SHRI D.K.SRIVASTAVA, ACCOUNTANT MEMBER AND MS SUSHMA CHOWLA, JUDICIAL MEMBER MA NO.69/CHD/2009 (IN ITA NO. 930/CHD/2005) ASSESSMENT YEAR: 1999-2000 THE ITO, VS. SHRI NANAK CHAND GUPTA, PROP MANDI M/S GUPTA GENERAL STORE, MANDI (H.P.) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI N.K.SAINI RESPONDENT BY: NONE (WRITTEN SUBMISSIONS) ORDER PER SUSHMA CHOWLA, JM THE PRESENT MISC. APPLICATION IS MOVED BY THE APPL ICANT-REVENUE AGAINST THE ORDER OF TRIBUNAL DATED 19.12.2008 IN I TA NO. 930/CHD/2005 RELATING TO ASSESSMENT YEAR 1999-2000. 2. THE TRIBUNAL VIDE AFORESAID ORDER HAD DIRECTED T HE ASSESSING OFFICER TO IMPOSE PENALTY U/S 271 (1)(C) OF THE ACT AMOUNTING TO RS. 90,813/-. THE GRIEVANCE OF THE REVENUE IS THAT THE PENALTY PROCEEDINGS WERE INITIATED U/S 271 (1)(C) OF THE ACT ON AN ADDI TION OF RS. 2,59,163/- AND AS THE SAID AMOUNT HAD BEEN CONFIRMED, THE PENA LTY WAS TO BE LEVIED ON THE AFORESAID AMOUNT. IN VIEW OF THE ORDER OF T HE TRIBUNAL IN LEVYING THE PENALTY ON ADDITION OF RS. 90,813/-, THE APPLIC ANT POINTED OUT THAT A MISTAKE HAD OCCURRED IN THE ORDER OF THE TRIBUNAL. 3. DESPITE SERVICE OF NOTICE, NONE APPEARED ON BEHA LF OF THE ASSESSEE, HOWEVER, WRITTEN SUBMISSIONS HAVE BEEN FILED BY THE LD. COUNSEL FOR THE 2 ASSESSEE WHICH HAVE BEEN CONSIDERED. THE LD. DR F OR THE REVENUE ON THE OTHER HAND POINTED OUT THAT THE CIT(A) HAS SUST AINED THE ADDITIONS IN THE CASE OF THE ASSESSEE ON ACCOUNT OF CERTAIN PART IES TOTALING RS. 1,98,692/- AND ON ACCOUNT OF INVESTMENT IN CONSTRUC TION, SURRENDERED BY THE ASSESSEE AT RS. 2 LACS. THE LD. DR FURTHER PO INTED OUT THAT VIDE THE ORDER OF THE TRIBUNAL, THE QUANTUM ADDITION CONFIRM ED WAS RS. 1,98,692/- THOUGH TWO ADDITIONS DELETED BY THE CIT(A) WERE ALS O REVERSED BY THE TRIBUNAL. THE LD. DR FAIRLY ADMITTED THAT THE FIGU RE OF RS. 2,59,163/- IN THE MISC. PETITION STANDS MODIFIED TO RS. 1,98,692/ - THAT IS THE ADDITION CONFIRMED BY THE CIT(A) AND UPHELD BY THE TRIBUNAL. THE LD. DR ALSO POINTED OUT THAT NO PENALTY WAS LEVIED BY THE ASSES SING OFFICER IN RESPECT OF THE TRADING ADDITION OF RS. 36,833/- AND ADDITIO N OF RS. 23,939/- OF M/S KAMLESH TRADING COMPANY, WHICH HAD BEEN RESTORED B Y THE TRIBUNAL. 4. IN THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE DATED 7.3.2001, THE LD. AR FOR THE ASSESSEE HAS CONTENDED THAT THE ASS ESSING OFFICER HAD IMPOSED THE PENALTY ON ADDITIONS OF RS. 3,98,391/- AGAINST WHICH RELIEF OF RS. 2 LAC WAS SUBSEQUENTLY ALLOWED BY THE TRIBUNAL. IT WAS FURTHER POINTED OUT THAT THE SUBMISSIONS OF THE REVENUE WERE PATENT LY WRONG IN AS MUCH AS THE PENALTY IMPOSABLE FOR ADDITION OF RS. 2,59,1 63/- AT RS. 90,813/- DIRECTED BY THE TRIBUNAL WAS CONTRARY TO THE PENALT Y IMPOSED BY THE ASSESSING OFFICER ON ADDITION OF RS. 3,98,391/-. TH E LD. AR FURTHER ADMITTED THAT EVEN THE ASSERTION OF THE REVENUE IS ACCEPTED AS CORRECT, THE PENALTY IMPOSABLE WOULD BE AT INCOME OF RS. 1,98,3 91/-. FURTHER PLEA WAS MADE THAT AS SURRENDER OF RS. 2 LACS HAS BEEN CONSI DERED AGAINST THE BOGUS LIABILITY SHOWN BY THE ASSESSEE, NO PENALTY WAS IMP OSABLE UPON THE ASSESSEE. THE ASSESSEE CLAIMS TO HAVE A FILED CROS S OBJECTION AGAINST THE MISC. APPLICATION FILED BY THE REVENUE. WITH REGAR D TO THE TRADING ADDITION CONFIRMED BY THE TRIBUNAL OF RS. 36,833/-, IT WAS POINTED OUT THAT 3 NO PENALTY WAS IMPOSED BY THE ASSESSING OFFICER IN RESPECT OF THE SAID DECISION U/S 271 (1)(C) OF THE ACT. 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF THE LD. D R AND PERUSED THE WRITTEN SUBMISSIONS FILED BY THE LD. AR FOR THE ASS ESSEE AND ALSO ORDER IN QUESTION. WE FIND THAT CERTAIN ADDITIONS MADE BY T HE ASSESSING OFFICER WERE CONFIRMED BY THE CIT(A) AND CERTAIN ADDITIONS WERE DELETED BY THE CIT(A). BOTH THE ASSESSEE AND THE REVENUE WERE IN APPEALS AGAINST THE ORDERS OF CIT(A) AND THEREAFTER THE TRIBUNAL VIDE I TS ORDER DATED 19.12.2008 CONFIRMED THE ADDITION OF RS.1,98,692/- ON ACCOUNT OF LIABILITY OF VARIOUS PARTIES. HOWEVER, ADDITION OF RS. 2 LAC S ON ACCOUNT OF INVESTMENT IN CONSTRUCTIONS, WHICH WAS SURRENDERED BY THE ASSESSEE WAS SET OFF AGAINST THE AFORESAID ADDITIONS MADE ON AC COUNT OF LIABILITIES AND THE SAID ADDITION WAS DELETED. THE ORDER OF CIT(A ) WAS REVERSED IN RESPECT OF THE TRADING ADDITION OF RS. 36,833/- AND ADDITION OF RS. 23,939/- IN THE ACCOUNT OF M/S KAMLESH TRADING COMP ANY. ADMITTEDLY, NO PENALTY WAS LEVIED BY THE ASSESSING OFFICER IN RESP ECT OF THE TRADING ADDITION FOR RS. 36,833/- AND ADDITION OF RS. 23,93 9/-. THE ASSESSING OFFICER WHILE IMPOSING THE PENALTY U/S 271 (1)(C) O F THE ACT VIDE ITS ORDER DATED 29.3.2005 HAD CONSIDERED THE ADDITION OF RS. 3,98,692/- (RS. 1,98,692/- + RS. 2 LACS). THE TRIBUNAL VIDE ITS OR DER DATED 19.12.2008 WHILE CONFIRMING THE LEVY OF PENALTY U/S 271 (1)(C) OF THE ACT HAD CONSIDERED THE TRADING ADDITION OF RS. 36,833/-, AD DITION OF RS. 30,050/- IN RESPECT OF CREDIT BALANCE IN THE NAME OF JASWANT SINGH AND RS. 23,939/- ON ACCOUNT OF LIABILITY REFLECTED IN THE BOOKS OF A CCOUNT, HAD HELD THAT THE TOTAL ADDITIONS WHICH REMAINED UNEXPLAINED OR BOGUS WERE TO THE TUNE OF RS. 90,813/-. WE FIND AN ERROR HAS CREPT IN THE ORD ER OF THE TRIBUNAL IN RESPECT OF THE QUANTUM OF ADDITIONS. THE ABOVE SAI D AMOUNT TOTALING RS. 90,813/- WERE NOT CONSIDERED BY THE ASSESSING OFFIC ER WHILE LEVYING THE 4 PENALTY U/S 271 (1)(C) OF THE ACT THOUGH THE SAID A DDITIONS MADE BY THE ASSESSING OFFICER WERE DELETED BY THE CIT(A), BUT W ERE REVERSED BY THE TRIBUNAL IN THE QUANTUM PROCEEDINGS. THE ADDITIONS CONFIRMED IN THE HANDS OF THE ASSESSEE WAS TO THE EXTENT OF RS. 1,98 ,692/- AGAINST WHICH THE ASSESSING OFFICER HAD LEVIED PENALTY U/S 271 (1 )(C) OF THE ACT. THE LD. DR FOR THE REVENUE FAIRLY ADMITTED THAT THOUGH IN THE MISC. APPLICATION, FIGURE OF RS. 2,59,163/- IS MENTIONED, BUT THE SAME IS TO BE MODIFIED TO RS. 1,98,692/-. ACCORDINGLY, WE MODIFY THE ORDER OF TRIBUNAL IN THIS REGARD THAT AS AGAINST THE FIGURE OF RS. 90 ,813/-, THE ADDITIONS IN THE CASE OF THE ASSESSEE WERE CONFIRMED TO THE EXTE NT OF RS. 1,98,692/-. ACCORDINGLY, ALLOWING THE MISC. APPLICATION FILED B Y THE REVENUE, WE HOLD THAT THE ASSESSEE HAD CONCEALED THE PARTICULAR S OF INCOME TO THE EXTENT OF RS. 1,98,692/- AND THE ASSESSING OFFICER IS DIRECTED TO CALCULATE THE MINIMUM PENALTY LEVIABLE ON THE AFORESAID AMOUN T. THE MISC. APPLICATION MOVED BY THE REVENUE IS THUS ALLOWED. 6. THE ASSESSEE IN THE PRESENT CASE HAS MOVED A CRO SS OBJECTION AGAINST THE MISC. APPLICATION FILED BY THE REVENUE, WHICH IS NOT MAINTAINABLE AND HENCE THE SAME IS DISMISSED. 7. IN THE RESULT, MISC. APPLICATION OF THE REVENUE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 13 TH DAY OF MAY, 2011. SD/- SD/- (D.K.SRIVASTAVA) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 13 TH MAY, 2011 RKK 5 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR TRUE COPY BY ORDER ASSISTANT REGISTRAR, ITAT, CHANDIGARH