Manohar Metal Corporation, Ahmedabad v. The Income tax Officer,Ward-5(3),, Baroda

ITA 1260/AHD/2010 | 2002-2003
Pronouncement Date: 13-08-2010 | Result: Allowed

Appeal Details

RSA Number 126020514 RSA 2010
Assessee PAN AADFM8806B
Bench Ahmedabad
Appeal Number ITA 1260/AHD/2010
Duration Of Justice 3 month(s) 21 day(s)
Appellant Manohar Metal Corporation, Ahmedabad
Respondent The Income tax Officer,Ward-5(3),, Baroda
Appeal Type Income Tax Appeal
Pronouncement Date 13-08-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 13-08-2010
Date Of Final Hearing 16-07-2010
Next Hearing Date 16-07-2010
Assessment Year 2002-2003
Appeal Filed On 22-04-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH AHMEDABAD BENCH AHMEDABAD BENCH AHMEDABAD BENCH A AA A BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI BHAVNESH BHAVNESH BHAVNESH BHAVNESH SAINI SAINI SAINI SAINI JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER AND AND AND AND SHRI SHRI SHRI SHRI N.S.SAINI N.S.SAINI N.S.SAINI N.S.SAINI ACCOUNTANT ACCOUNTANT ACCOUNTANT ACCOUNTANT MEMBER MEMBER MEMBER MEMBER DATE OF HEARING :3-8-2010 DRAFTED O N:3-8-2010 ITA NO. 1260 1261 1262 /AHD/ 2010 ASSESSMENT YEARS :2002-03 2003-04 & 2004-05 M/S. MANOHAR METAL CORPORATION SANT KABIR ROAD BARANPURA NAKA BARODA. VS. INCOME TAX OFFICER WARD 5(3) AAYAKAR BHAVAN RACE COURSE CIRCLE BARODA. PAN/GIR NO. : AADFM 8806 B (A PPELLANT ) .. ( RESPONDENT ) APPELLAN T BY : SHRI K.R.DIXIT. RESPONDENT BY: SHRI D.S. CHAUDHARY D.R. O R D E R O R D E R O R D E R O R D E R PER N.S.SAINI ACCOUNTANT MEMBER :- THESE ARE THE THREE APPEALS FILED BY THE ASSESSEE AGAINST THE COMMON ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-V BARODA DATED 18-1-2010. 2. THE GROUNDS OF APPEAL READS AS UNDER :- 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) ERRED AT LAW AND ON FACTS IN CONFIRMING THE ORDER O F THE LEARNED ASSESSING OFFICER LEVYING PENALTY OF `.54 1 28/- FOR ASSESSMENT YEAR 2002-03 `.1 28 387/- FOR ASSESSMEN T YEAR 2003-04 AND `.3 02 670/- FOR ASSESSMENT YEAR 2004-0 5 UNDER SECTION 271(1)(C) OF THE ACT. 3. THE FACTS AND ISSUES INVOLVED IN ALL THE APPEALS ARE SIMILAR AND THE CIT(A) HAS DECIDED ALL THE APPEALS BY A CON SOLIDATED ORDER THEREFORE THEY ARE BEING DECIDED TOGETHER BY THIS C ONSOLIDATED ORDER. - 2 - 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE THE LEARNED ASSESSING OFFICER LEVIED PENALTY UNDER SECTION 271( 1)(C) IN ALL THE YEARS UNDER APPEAL AND THE FINAL CONCLUSION RECORDE D BY THE LEARNED ASSESSING OFFICER IN THE IMPUGNED ORDER REA DS AS UNDER : ASSESSMENT YEAR 2003-03 I AM SATISFIED THAT THE ASSESSEE HAS CONCEALED AN D FURNISHED INACCURATE PARTICULARS OF INCOME TO THE T UNE OF `.1 51 621/- AND HENCE THIS IS A FIT CASE FOR LEVY OF PENALTY UNDER SECTION 271(1)(C). ACCORDINGLY I LEVY MINIMU M PENALTY OF `.54 128/- AS AGAINST MAXIMUM PENALTY LEVIABLE A T `. 1 62 384/-. ASSESSMENT YEAR 2003-04. I AM SATISFIED THAT THE ASSESSEE HAS CONCEALED AN D FURNISHED INACCURATE PARTICULARS OF INCOME AND HENC E THIS IS A FIT CASE FOR LEVY OF PENALTY U/A. 271(1)(C). ACCOR DINGLY I LEVY MINIMUM PENALTY OF `.1 28 387/- AS AGAINST MAXIMUM PENALTY LEVIABLE OF `.3 85 161/- ASSESSMENT YEAR 2004-05. I AM SATISFIED THAT THE ASSESSEE HAS CONCEALED AND FURNISHED INACCURATE PARTICULARS OF INCOME TO THE T UNE OF `.8 43 679/- AND HENCE THIS IS A FIT CASE FOR LEVY OF PENALTY UNDER SECTION 271(1)(C). ACCORDINGLY I LEVY MINIM UM PENALTY OF `.3 02 670/- AS AGAINST MAXIMUM PENALTY LEVIABLE AT `.9 08 010/- 5. THUS IT IS OBSERVED THAT BEFORE LEVYING PENALTY UNDER SECTION 271(1)(C) THE LEARNED ASSESSING OFFICER HAS NOT REA CHED TO THE FINAL CONCLUSION IN ALL THE YEARS UNDER CONSIDERATION AS TO WHETHER THE ASSESSEE WAS GUILTY OF CONCEALMENT OF INCOME OR WHE THER THE ASSESSEE WAS GUILTY OF FURNISHING OF INACCURATE PAR TICULARS OF INCOME. 6. THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF NEW SORATHIA ENGINEERING CO. V. COMMISSIONER OF INCOME-TAX [2006] 282 ITR 0642 HAS HELD AS UNDER:- - 3 - IN THE CASE OF CIT V. MANU ENGINEERING WORKS [1980 ] 122 ITR 306 THIS IS WHAT IS LAID DOWN BY THIS COURT AT PAGE 310 OF THE REPORTS : WE FIND FROM THE ORDER OF THE INSPECTING ASSISTAN T COMMISSIONER IN THE PENALTY PROCEEDINGS THAT IS THE FINAL CONCLUSION AS EXPRESSED IN PARA 4 OF THE ORDER : I AM OF THE OPINION THAT IT WILL HAVE TO BE SAID THAT THE ASSES SEE HAD CONCEALED ITS INCOME AND/OR THAT IT HAD FURNISHED I NACCURATE PARTICULARS OF SUCH INCOME. NOW THE LANGUAGE OF AND/OR MAY BE PROPER IN ISSUING A NOTICE AS TO PENALTY ORDER O R FRAMING OF CHARGE IN A CRIMINAL CASE OR A QUASI-CRIMINAL CASE BUT IT WAS INCUMBENT UPON THE INSPECTING ASSISTANT COMMISSIONE R TO COME TO A POSITIVE FINDING AS TO WHETHER THERE WAS CONCE ALMENT OF INCOME BY THE ASSESSEE OR WHETHER ANY INACCURATE PA RTICULARS OF SUCH INCOME HAD BEEN FURNISHED BY THE ASSESSEE. NO SUCH CLEAR- CUT FINDING WAS REACHED BY THE INSPECTING ASSISTANT COMMISSIONER AND ON THAT GROUND ALONE THE ORDER O F PENALTY PASSED BY THE INSPECTING ASSISTANT COMMISSIONER WAS LIABLE TO BE STRUCK DOWN. THE PENALTY ORDER AND THE ORDER OF THE COMMISSIONE R (APPEALS) SHOW THAT NO CLEAR-CUT FINDING HAS BEEN REACHED. TH E TRIBUNAL HAS FAILED TO APPRECIATE THIS LEGAL ISSUE. APPLYING THE RATIO TO THE FACTS OF THE CASE IT IS APPARENT THAT THE ORDER OF PENALTY CANNOT BE SUSTAINED AND THE TRIBUNAL COULD NOT HAVE SUSTAI NED THE SAME. THE TRIBUNAL HAVING FAILED TO TAKE INTO CONSI DERATION AND DEAL WITH THE DECISION OF THE JURISDICTIONAL HIGH C OURT IT WOULD CONSTITUTE AN ERROR IN LAW WHICH GOES TO THE VERY B ASIS OF THE CONTROVERSY INVOLVED AND HENCE THE IMPUGNED ORDER OF THE TRIBUNAL CANNOT BE UPHELD. 7. IN VIEW OF THE ABOVE SETTLED POSITION OF LAW AS THE LEARNED ASSESSING OFFICER HAS NOT ARRIVED AT THE FINAL CONC LUSION AS TO WHETHER THE ASSESSEE WAS GUILTY OF CONCEALMENT OF I NCOME OR THE ASSESSEE WAS GUILTY OF FURNISHING OF INACCURATE PAR TICULARS OF INCOME THE PENALTY LEVIED FOR THE ASSESSMENT YEARS UNDER CONSIDERATION ARE NOT SUSTAINABLE. WE THEREFORE DE LETE THE LEVY OF PENALTY UNDER SECTION 271(1)(C) IN ALL THE YEARS UN DER CONSIDERATION. 8. IN THE RESULT ALL THE APPEALS OF THE ASSESSEE A RE ALLOWED. - 4 - ORDER SIGNED DATED AND PRONOUNCED IN THE COURT ON 13 TH DAY OF AUGUST 2010. SD/- SD/- (BHAVNESH SAINI) ( N.S. SAIN I ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; ON THIS 13 TH DAY OF AUGUST 2010 PATKI COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-V BARODA. 5. THE DR AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER //TRUE COPY// (DY./ASSTT.REGISTRAR) ITAT AHMEDABAD DATE INITIALS 1. DRAFT DICTATED ON 3-8-2010 --------------- ---- 2. DRAFT PLACED BEFORE AUTHORITY 3-8-2010 ------- ------------ 3. DRAFT PROPOSED & PLACED 6-8-2010 ------------- ------ JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED 10-8-2010 ----------- -------- JM/AM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO P.S 13-8-2010 --------- ----------- 6. KEPT FOR PRONOUNCEMENT ON 13-8-2010 ---------- ---------- 7. FILE SENT TO THE BENCH CLERK 13-8-2010 ------- ------------- 8. DATE ON WHICH FILE GOES TO THE ---------------- -------------------- 9. DATE OF DISPATCH OF ORDER ---------------- --- ------------------