The ITO, Ward-2, Navsari V. M/s. Hotel Supreme, Navsari

MA 90/AHD/2010

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8489 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 2 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-06-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 10-12-2010
• Assessment Year: 2001-2002
• Appeal Filed On: 15-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD , .'# ,$% $ & BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER MA NO.90/AHD/2010 A.Y. 2001-02 ( ./ IN I.T.A. NO.474/AHD/2005 AY 2001-02) ITO WARD-2 NAVSARI (ORIGINAL RESPONDENT) # # # # / VS. M/S.HOTEL SUPREME CHIKHALI CHIHALI 4 RASTA SAMROLI CHIKHALI, DIST.NAVSARI (ORIGINAL APPELLANT) ( $% ./)* ./ PAN/GIR NO. : AABFH4823P ( (+ / // / APPLICANT ) .. ( ,-(+/ RESPONDENT ) (+ . $/ REVENUE BY : SHRI B.L.YADAV, SR.D.R. ,-(+ / . $ / ASSESSEE BY : -NONE- #0 / %/ // / DATE OF HEARING : 08/06/12 1'2 / % / DATE OF PRONOUNCEMENT : 15/6/12 $3/ O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS MISCELLANEOUS HAS BEEN FILED BY THE REVENUE ON 15.4.2010 ARISING FROM THE ORDER OF THE TRIBUNAL DATED 28/10/2009. T HE TRIBUNAL HAS PRIMARILY EXPRESSED THAT; WHILE DELETING THE PENALTY, THE TRI BUNAL HAS ALSO DELETED THE PENALTY IN RESPECT OF AN AMOUNT OF RS.75,000/- WHI CH WAS OTHERWISE SUSTAINED. THE RELEVANT PORTION IS EXTRACTED BELOW FROM THE PE TITION:- 2. IN THIS CONNECTION, I HAVE TO KINDLY SUBMIT THAT THE ABOVE MENTIONED COMMON APPELLATE ORDER BEARING ITA NO.474 , 475 & 476/AHD/2005, 545/AHD/2005 & 2305, 2306 & 2307/AHD/ 2006 DATED 28.10.2009 FOR A.Y. 2001-02 IN THE CASE OF M/S. HOT EL SUPREME, VEJALPORE WAS RECEIVED IN THIS OFFICE AND THE EFFEC T TO THAT ORDER WAS GIVEN ON 27.12.009 AS UNDER:.. .. MA NO.90/AHD/2010 (IN ITA NO.474/ AHD/2005) ITO VS. M/S.HOTEL SUPREME ASST.YEAR - 2001-02 - 2 - 3. IN ADDITION TO GIVING EFFECT TO QUANTUM APPEA L ABOVE, EFFECT TO PENALTY LEVIED BY AO (ON 27.02.2006) OF RS.3,88,150 /- U/S.271(1)(C) OF THE ACT, WAS ALSO GIVEN AS YOUR HONOUR HAS DELETED THE PENALTY IN FULL . THE EFFECT TO DELETION OF PENALTY HAS BEEN GIVEN ON 27.12.2009 IS AS UNDER: THE ITATS, ABAD (RAJKOT BENCH), VIDE ITS COMMON ORDER NO.2305, 2306 & 2307/AHD./2006, DATED 28/10/2009, H AS DELETED THE PENALTY OF RS.3,88,150/- LEVIED BY AO U/S.271( 1)(C) OF THE I.T. ACT VIDE ORDER DATED 27.02.2006. 4. ON GOING THROUGH YOUR HONOURS APPELLATE ORDER, IT IS SEEN THAT IN THE END, THE ADDITION IN RESPECT OF SUPPRESSED S ALE OF RS.75,000/- WAS CONFIRMED BY YOUR HONOUR. HOWEVER, AS REGARD THE DECISION ON DELETION OF PENALTY, IT SEEMS THAT YOUR HONOUR HAS NOT CONSIDERED THE SUSTAINED ADDITIONS OF RS.75,000/-. THE PENALTY OF RS.3,88,150/- HAS BEEN FULLY DELETED INSTEAD OF RESTRICT THE SAME TO THE EXTENT OF CONFIRMATION OF ADDITION. IT IS, THEREFORE, RESPEC TFULLY PRAYED THAT THE QUANTUM OF PENALTY MAY KINDLY BE RESTRICTED TO THE EXTENT OF QUANTUM OF ADDITION SUSTAINED BY YOUR HONOUR, IF DEEMED FIT. 2. ON THE DATE OF HEARING, NO ONE WAS PRESENT FROM THE SIDE OF THE RESPONDENT AND THE LD.DR HAS PLACED RELIANCE ON THE MISCELLANEOUS PETITION. HE HAS ARGUED THAT IT WAS MISTAKENLY NOTED BY THE T RIBUNAL THAT ALL THE ADDITIONS HAVE BEEN DELETED, THEREFORE THE ENTIRE P ENALTY WAS DELETED. HOWEVER, WHILE GIVING THE EFFECT OF THE ORDER OF TH E TRIBUNAL, IT WAS NOTED THAT THE ADDITION IN RESPECT OF SUPPRESSED SALE OF RS.75 ,000/- WAS CONFIRMED. ACCORDING TO HIM, TO THAT EXTENT, PENALTY WAS WRONG LY DELETED. 3. WE HAVE CAREFULLY PERUSED THE IMPUGNED ORDER AS ALSO THE RELEVANT OBSERVATIONS MADE THEREIN. THE TRIBUNAL VIDE PARA 54 HAS COMMENTED AS FOLLOWS:- 54. SINCE WE HAVE DECIDED ALL QUANTUM APPEALS AND ALLOWED THE CLAIM MADE BY THE ASSESSEE IN THEIR RESPECTIVE APPE ALS. THE PENALTY IMPOSED BY THE ASSESSING OFFICER DOES NOT SURVIVE. THEREFORE, THE APPEAL FILED BY THE ASSESSEE FOR DELETING THE PENALTY ARE FOLLOWED. MA NO.90/AHD/2010 (IN ITA NO.474/ AHD/2005) ITO VS. M/S.HOTEL SUPREME ASST.YEAR - 2001-02 - 3 - 4. THE VIEW TAKEN BY THE TRIBUNAL WAS AFTER DUE CON SIDERATION OF THE FACTS OF THE CASE WHICH WAS PART AND PARCEL OF THE SAID D ETAILED ORDER OF THE TRIBUNAL. THE CLAIMS WERE ALLOWED IN THE QUANTUM APPEAL AND T HEN IT WAS DECIDED TO HOLD THAT THE PENALTY DID NOT SURVIVE. THERE WER E NUMBER OF ADDITIONS AND NUMBER OF GROUNDS HAVE BEEN ELABORATELY DISCUSSED A ND ON THAT BASIS IT WAS FINALLY HELD THAT THE PENALTY DO NOT SURVIVE. THE TRIBUNAL VIDE PARA 20 HAS FOUND THAT LOOKING TO THE STOCK AS PER BOOKS OF RS. 1,69,000/- THERE WAS A MARGINAL DIFFERENCE OF RS.26,906/- AND THAT SHORTAG E COULD NOT BE EXPLAINED. THE TRIFLE AMOUNT OF DIFFERENCE OF RS.75,000/- WAS THUS RETAINED. THIS COULD BE THE REASON FOR NOT CONSIDERING FIT TO CONFIRM TH E PENALTY. WE THEREFORE HOLD THAT THERE WAS NO MISTAKE, WHAT TO SAY AN APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL, HENCE THIS PETITION OF THE REVENUE IS HER EBY DISMISSED. 5. IN THE RESULT, THE MISCELLANEOUS PETITION IS DIS MISSED. SD/- SD/- ( .'# ) ( ) $% ( A.MOHAN ALANKAMONY ) ( MUKU L KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 15 / 06 /2012 4..#, .#../ T.C. NAIR, SR. PS $3 / ,5 6$52 $3 / ,5 6$52 $3 / ,5 6$52 $3 / ,5 6$52/ COPY OF THE ORDER FORWARDED TO : 1. (+ / THE APPELLANT 2. ,-(+ / THE RESPONDENT 3. 7 / CONCERNED CIT 4. 7() / THE CIT(A)-CONCERNED 5. 5:; ,# , , / DR, ITAT, AHMEDABAD 6. ; <0 / GUARD FILE. $3# $3# $3# $3# / BY ORDER, -5 , //TRUE COPY// = == =/ // / ) ) ) ) ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD