Narayan Powertech Pvt. Ltd., Baroda V. The ACIT., Baroda Circle-4, Baroda

MA 9/AHD/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7925 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 2 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-04-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2001-2002
• Appeal Filed On: 19-01-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: H K LAL
• Assessee Lawyers: J P SHAH
• Keywords: Wrong claim

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, D BENCH, AHMEDABAD BEFORE SHRI MUKUL KUMAR SHRAWAT, JJUDICIAL MEMBER A ND SHRI A. K. GARODIA, ACCOUNTANT MEMBER M.A.NO.09/AHD/2011 IN I.T.A. NO. 686/ AHD/2007 (ASSESSMENT YEAR 2001-02) NARAYAN POWERTECH PVT. LTD., 102, YOGIDARSHAN BUILDING, 13-A, NUTAN BHARAT SOCIETY, ALKAPURI, BARODA VS. ACIT, CIRCLE 4, BARODA PAN/GIR NO. : AAACN6792R (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI J P SHAH, AR RESPONDENT BY: SHRI H K LAL, SR. DR DATE OF HEARING: 23.03.2012 DATE OF PRONOUNCEMENT: 13 .04.2012 O R D E R PER SHRI A. K. GARODIA, AM:- THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASS ESSEE AND THE MISCELLANEOUS APPLICATION IS REPRODUCED BELOW: D' BENCH OF THE TRIBUNAL CONSISTING OF HON'BLE SHR I BHAVNESH SAINI AND HON'BLE SHRI N.S. SAINI PASSED AN ORDER I N I.T.A. NO,686/AHD/2007 DATED 7 TH MAY 2010. ON THE SAME DAY, THE OFFICE OF ADVOCATE J.P. SHAH TOOK OUT A NET COPY. THE RELE VANT PORTION OF THE COMPOSITE ORDER OF THE TRIBUNAL PERTAINING T O THE ABOVE APPEAL REGARDING SECTION 271(L)(C) PENALTY IS ENCLO SED HEREWITH FOR READY REFERENCE. 2. AT THE TIME OF THE HEARING OF THE APPEAL, ADVOCA TE J.P. SHAH POINTED OUT THAT IN THE PENALTY ORDER THE ASSESSING OFFICER HAS GIVEN A FINDING OF FURNISHING INACCURATE PARTICULAR S/CONCEALMENT OF INCOME IN PARA 9 OF HIS ORDER IN RESPECT OF THE DIS ALLOWANCE OF COMMISSION OF RS.13,61,066/- AND THE C.I.T.(APPEALS ) TOO HAS GIVEN A FINDING OF CONCEALMENT OF INCOME/FURNISHING OF INACCURATE M..A.NO. 09 /AHD/2011 2 PARTICULARS OF INCOME, AND THEREFORE, BOTH THE ORDE RS ARE CONTRARY TO A DIRECT GUJARAT HIGH COURT DECISION OF NEW SORATHI A ENGINEERING CO. VS. C.I.T. - (2006) 282 ITR 642 (GUJ). THE TRIB UNAL FAILED TO CONSIDER THIS DECISION, AND THEREFORE, AN APPARENT ERROR HAS ARISEN IN THE ORDER OF THE TRIBUNAL. 3. ADDITIONALLY, THE APPLICANT'S ADVOCATE ALSO RELIED UPON A DIRECT AND LATEST SUPREME COURT DECISION IN C.I.T. VS. RELIANCE PETRO PRODUCTS PVT. LTD. (2010) 322 ITR 158. THIS D ECISION TOO HAS NEITHER BEEN MENTIONED NOR CONSIDERED IN THE ABOVE ORDER OF THE TRIBUNAL, AND THEREFORE TOO, THERE IS AN APPARENT E RROR IN THE ORDER OF THE TRIBUNAL. 4. IT IS MOST HUMBLY REQUESTED THAT IN THE INTEREST OF JUSTICE THE ABOVE ORDER BE KINDLY RECALLED AND THE MATTER BE PU T FOR A FRESH HEARING AFTER CONSIDERATION OF THE ABOVE TWO DIRECT DECISIONS OF HON'BLE THE HIGH COURT AND HON'BLE THE SUPREME COUR T WHICH ARE BINDING ON THIS HON'BLE TRIBUNAL. NEEDLESS TO SAY FOR THIS ACT OF KINDNESS, THE APPLI CANT SHALL FOREVER PRAY AND REMAIN GRATEFUL. 2. IN THE COURSE OF HEARING BEFORE US, IT WAS SUBMI TTED BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE TRIBUNAL ORDER IS CONTRARY TO THE DIRECT JUDGMENT OF HONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF NEW SORATHIA ENGINEERING CO. (SUPRA). AT THIS JUNCTURE , IT WAS POINTED OUT BY THE BENCH THAT THERE IS NO SPECIFIC GROUND IN THE A PPEAL OF THE ASSESSEE ON THIS ASPECT THAT THE PENALTY ORDER IS BAD IN LAW BE CAUSE THE A.O. HAS NOT MADE A CLEAR ALLEGATION AS TO WHETHER THE ASSESSEE HAD CONCEALED THE INCOME OR HAS FURNISHED INACCURATE PARTICULARS OF I NCOME. IN REPLY, IT WAS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE THAT SPECIFIC GROUND IS NOT NECESSARY BECAUSE THE ASSESSEE HAS RAISED THE GROUN DS THAT LD. CIT(A) HAS ERRED IN CONFIRMING THE PENALTY OF RS.5,38,302/ - LEVIED U/S 271(12)(C) OF THE INCOME TAX ACT, 1961. 3. REGARDING THE JUDGMENT OF HONBLE APEX COURT REN DERED IN THE CASE OF CIT VS RELIANCE PETRO PRODUCTS AS REPORTED IN 322 ITR 158, IT WAS SUBMITTED THAT THIS DECISION WAS CITED BEFORE T HE TRIBUNAL IN THE M..A.NO. 09 /AHD/2011 3 COURSE OF HARING OF APPEAL BUT THE SAME WAS NOT CON SIDERED IN THE TRIBUNAL ORDER. 4. LD. D.R. OF THE REVENUE SUBMITTED THAT THERE IS NO APPARENT MISTAKE IN THE TRIBUNAL ORDER. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. FIRST OF ALL, WE REPRODUCE THE GROUNDS RAISED BY THE ASSESSEE BEFORE THE TRIBUNAL WHICH ARE AS UNDER: 1. LEARNED C.I.T. (APPEALS)-III HAS ERRED I N CONFIRMING PENALTY OF RS.5,38,3027- LEVIED U/S.271(1 )(C) CLAI MING THAT COMMISSION OF RS. 13,61,0667- PAID TO M/S. MONA ENT ERPRISE WAS NOT GENUINE. 1.1 DETAILS OF SERVICES RENDERED BY THE AGENT HAS BEEN EXPLAINED. 1.2 COMMISSION AGENT HAS DECLARED THIS INCOME AS R ECEIPT IN HIS PERSONAL BOOK OF A/C AS PER I. LAX RETURN FILED. 1.3 PURCHASING COMPANY HAS ONLY STATED THAT 'MO NA ENTERPRISE' IS NOT THEIR AGENT. 1.4 COMMISSION HAS BEEN DULY PAID TO 'MONA ENTE RPRISE' C.I.T.(A) HAS NOT CONSIDERED THESE FACTORS AND HAS SIMPLY CONFIRMED THE ADDITION MADE BY ASSESSEE. 2. APPELLANT PRAYS LEAVE TO ADD, ALTER OR AME ND ANY OF THE GROUNDS SET FORTH ABOVE. 6. FROM THE ABOVE GROUNDS OF APPEAL RAISED BY THE A SSESSEE, IT IS SEEN THAT NO GROUND HAS BEEN RAISED BY THE ASSESSEE REGA RDING THIS ASPECT THAT THE ORDER OF LD. CIT(A) AND PENALTY ORDER PASSED BY THE A.O. ARE BAD IN LAW BECAUSE THERE IS NO CLEAR ALLEGATION AS TO WHET HER THE ASSESSEE HAS CONCEALED ITS INCOME OR HAS FURNISHED INACCURATE PA RTICULARS OF INCOME. IN THE ABSENCE OF ANY GROUND ON THIS ASPECT, CITING OF MERE DECISION OF HONBLE GUJARAT HIGH COURT CANNOT BE RELEVANT AND I F SUCH JUDGEMENT IS NOT CONSIDERED BY THE TRIBUNAL, IT CANNOT BE SAID T HAT THERE IS A APPARENT MISTAKE IN THE TRIBUNAL ORDER. 7. THE ASSESSEE HAS ALSO PLACED RELIANCE ON THE JUD GMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF ACIT VS SAURASHT RA KUTCH STOCK M..A.NO. 09 /AHD/2011 4 EXCHANGE LTD. AS REPORTED IN 305 ITR 227 (S.C.) AND CONTENDED THAT AS PER THIS JUDGMENT OF HONBLE APEX COURT, EVEN IF A JUDGMENT IS NOT CITED AND EVEN IF THE JUDGEMENT IS RENDERED AFTERWARDS, T HIS IS APPARENT MISTAKE IN THE TRIBUNAL ORDER IF THE TRIBUNAL ORDER IS NOT IN LINE WITH SUCH DECISION OF THE JURISDICTIONAL HIGH COURT OR THE HONBLE APE X COURT. REGARDING THIS CONTENTION ALSO, WE DO NOT FIND ANY MERIT IN T HE SAME BECAUSE AS PER THIS JUDGMENT OF HONBLE APEX COURT, IF A DECISION IS RENDERED AFTERWARDS OR WAS NOT CITED AND THE TRIBUNAL DECISION IS NOT A S PER THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT AND THE HONBLE A PEX COURT THEN THERE IS A APPARENT MISTAKE IN THE TRIBUNAL ORDER. BUT I N THE PRESENT CASE, THE CONTENTION IS NOT THAT THE JUDGMENT OF HONBLE GUJA RAT HIGH COURT IN THE CASE OF NEW SORATHIA ENGINEERING CO. (SUPRA) WAS NO T CITED BEFORE THE TRIBUNAL AND THAT IT WAS RENDERED AFTERWARDS. THE FACT IS THIS THAT NO GROUND HAS BEEN RAISED BY THE ASSESSEE IN ITS APPEA L FILED BEFORE THE TRIBUNAL THAT THE ORDER OF CIT(A) AND PENALTY ORDER ARE BAD IN LAW BECAUSE THERE IS NO CLEAR CUT ALLEGATION IN THE PENALTY ORD ER AS TO WHETHER THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF IN COME OR HAS CONCEALED ITS INCOME. IN THE ABSENCE OF SUCH GROUND, THIS DE CISION OF HONBLE GUJARAT HIGH COURT IS NOT APPLICABLE IN THE PRESENT CASE AND, THEREFORE, THIS JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF SAURASHTRA KUTCH STOCK EXCHANGE LTD. (SUPRA) IS ALSO OF NO HEL P TO THE ASSESSEE IN THE PRESENT CASE. 8. REGARDING THE JUDGMENT OF HONBLE APEX COURT REN DERED IN THE CASE OF RELIANCE PETRO PRODUCTS (SUPRA), WE FIND TH AT THERE IS NO MENTION IN THE TRIBUNAL ORDER REGARDING CITING OF THIS DECI SION. BUT EVEN IF THIS DECISION WAS CITED BEFORE THE TRIBUNAL, IT HAS TO B E SHOWN THAT THIS JUDGMENT IS APPLICABLE IN THE PRESENT CASE. AS PER THIS JUDGMENT OF HONBLE APEX COURT, MERE REJECTING OF A CLAIM CANNO T BE THE BASIS FOR LEVY OF PENALTY. BUT IN THE PRESENT CASE, THE FACT S ARE DIFFERENT. IN THE M..A.NO. 09 /AHD/2011 5 PRESENT CASE, IT IS NOT A LEGAL CLAIM WHICH HAS BEE N MADE BY THE ASSESSEE AND REJECTED BY THE REVENUE. IN THE PRESENT CASE, T HE CLAIM OF THE ASSESSEE REGARDING PAYMENT OF COMMISSION WAS REJECTED BY THE REVENUE ON THIS BASIS THAT THE FACTS OF RENDERING SERVICES BY MR. R AVAL COULD NOT BE ESTABLISHED BY THE ASSESSEE BY BRINGING RELEVANT MA TERIAL ON RECORD AND ON THE OTHER HAND, THE REVENUE HAS SHOWN THAT IN FACT, NO SERVICES WERE RENDERED BY MR. RAWAL BY BRINGING ON RECORD THE COR RESPONDENCE MADE WITH M/S. SECURE METER LTD. WHO HAD INFORMED THE A. O. THAT PURCHASES BY THEM WERE MADE DIRECTLY FROM THE ASSESSEE. TH ESE FACTS CLEARLY SHOW THAT IT IS NOT MERE REJECTION OF CLAIM OF THE ASSES SEE BUT IN FACT, THE REVENUE HAS ESTABLISHED THAT0 FALSE CLAIM WAS MADE BY THE ASSESSEE FOR WHICH THE ASSESSEE COULD NOT BRING ON RECORD ANY SU PPORTING EVIDENCE. UNDER THESE FACTS, IN OUR CONSIDERED OPINION, THIS JUDGMENT OF HONBLE APEX COURT IS OF NO HELP TO THE ASSESSEE IN THE PRE SENT CASE. HENCE, EVEN AFTER CONSIDERING THIS JUDGEMENT OF HONBLE APEX CO URT, THE CONCLUSION REMAINS THE SAME. 9. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED. 10. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED HEREINABOVE. SD./- SD./- (MUKUL KUMARSHRAWAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD M..A.NO. 09 /AHD/2011 6 1. DATE OF DICTATION 9/4 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 10/4.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 13/4 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.13/4 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 13/4/12 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .