The ITO, Ward 2(4), PORBANDAR v. Shri Sharadkumar Popatlal Majithia, PORBANDAR

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH RAJKOT BEFORE SHRI T.K. SHARMA (JM) AND SHRI A.L. GEHLOT ( AM) I.T.A. NO.1203/RJT/2010 (ASSESSMENT YEAR 2004-05) ITO JR WD.2(4) VS SHRI SHARADKUMAR POPATLAL PORBANDAR MAJITHIA PROP BHAGWATI TRANSPORT SERVICE M.G. ROAD PORBANDAR PAN : ACJPM6889J (APPELLANT) (RESPONDENT) DATE OF HEARING : 23-11-2011 DATE OF PRONOUNCEMENT : 25-11-2011 APPELLANT BY : SHRI CJ MANIAR RESPONDENT BY : SHRI JC RANPURA O R D E R PER AL GEHLOT (AM) THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE CIT(A) JAMNAGAR DATED 20-07-2010 FOR THE ASSESSMEN T YEAR 2004-05. 2. THE GROUND RAISED IN THE APPEAL IS IN RESPECT OF CANCELLATION OF PENALTY OF RS. 5 07 420 U/S 271(1)(C) OF THE I.T. A CT 1961. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSI NG OFFICER WHILE FRAMING THE ASSESSMENT OF THE ASSESSEE HAS REJECTED THE BOOKS OF ACCOUNT AND ASSESSED THE INCOME OF THE ASSESSEE AT RS.52 26 540 AGAINST TOTAL ITA NO.1203/RJT/2010 2 INCOME DECLARED BY THE ASSESSEE AT RS.2 42 999 AFTE R MAKING ADDITION OF THE DIFFERENCE BETWEEN FREIGHT RECEIVED FROM SAUKEM AND PAID TO TRUCK OPERATORS AS PER PAHONCH BHADA BOOK AND DISALLOWANC E PAYMENTS MADE IN CASH U/S 40A(3). THE MATTER REACHED UPTO THE IT AT LEVEL WHERE THE INCOME WAS FINALLY ESTIMATED AT RS.15 LAKHS. THE A SSESSING OFFICER LEVIED PENALTY OF RS.5 07 420 U/S 271(1)(C) ON THE DIFFERE NCE BETWEEN THE RETURN INCOME AND THE INCOME FINALLY ASSESSED. THE CIT(A) FOLLOWING THE ORDER FOR ASSESSMENT YEAR 2003-04 IN ASSESSEES OWN CASE IN ITA NO.568/RJT/2008 DATED 24-06-2009 WHEREIN SIMILAR PE NALTY LEVIED ON SUCH ESTIMATED ADDITION DELETED BY THE CIT(A) HAS BEEN D ELETED HAS DELETED THE IMPUGNED PENALTY. AGGRIEVED THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE PARTIES AND PERUSED THE MATERI AL PLACED BEFORE US. THERE IS NO DISPUTE THAT THE INCOME FINALLY AS SESSED IS ON ESTIMATED BASIS. FROM THE COPY OF ORDER DATED 24-06-2009 IN ITA NO. 568/RJT/2008 FOR ASSESSMENT YEAR 2003-04 IN ASSESSEES OWN CASE WE FIND THAT THE DELETION OF PENALTY LEVIED UNDER SUCH CIRCUMSTANCES HAS BEEN CONFIRMED BY THE ITAT. THERE IS NO DISPUTE ABOUT THE FACTS A ND CIRCUMSTANCES ALSO. THE LD.CIT(A) HAS FOLLOWED THE ORDER OF ITAT FOR AS SESSMENT YEAR 2003-04 IN ASSESSEES OWN CASE CITED SUPRA. IN THE CIRCUMS TANCES WE ARE UNABLE TO COME TO A DIFFERENT CONCLUSION THAN THE ONE ARRI VED AT BY THE LD.CIT(A). ITA NO.1203/RJT/2010 3 WE THEREFORE BEING CONSISTENT WITH THE PRECEDENT UPHOLD THE ORDER OF CIT(A). 5. IN THE RESULT THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 25-11-2011. SD/- SD/- (T.K. SHARMA) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER RAJKOT DT : 25 TH NOVEMBER 2011 PK/- COPY TO: 1. ASSESSEE 2. REVENUE 3. THE CIT(A) JAMNAGAR 4. THE CIT JAMNAGAR 5. THE DR I.T.A.T. RAJKOT (TRUE COPY) BY ORDER ASSTT.REGISTRAR ITAT RAJKOT