Shri Devrajbhai Laljibhai Prajapati, Surat v. The Income tax Officer, Ward-2(1),, Surat

ITA 1284/AHD/2007 | 1998-1999
Pronouncement Date: 30-09-2016 | Result: Allowed

Appeal Details

RSA Number 128420514 RSA 2007
Assessee PAN AFLPP5423Q
Bench Ahmedabad
Appeal Number ITA 1284/AHD/2007
Duration Of Justice 9 year(s) 6 month(s) 2 day(s)
Appellant Shri Devrajbhai Laljibhai Prajapati, Surat
Respondent The Income tax Officer, Ward-2(1),, Surat
Appeal Type Income Tax Appeal
Pronouncement Date 30-09-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted SMC
Tribunal Order Date 30-09-2016
Date Of Final Hearing 09-09-2016
Next Hearing Date 09-09-2016
Assessment Year 1998-1999
Appeal Filed On 28-03-2007
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH AHMEDABAD BEFORE SHRI S. S. GODARA JUDICIAL MEMBER AND SHRI MANISH BORAD ACCOUNTANT MEMBER. ITA. 1284/AHD/2007 (ASSESSMENT YEAR:1998-99) SHRI DEVRAJBHAI LALJIBHAI PRAJAPATI PROP. OF M/S. SHRI LAXMI ROADLINES & TRANSPORT SERVICES ROAD NO.5 UDHNA UDYOGNAGAR UDHNA SURAT. APPELLANT VS. THE INCOME-TAX OFFICER WARD 2(1) SURAT RESPO NDENT PAN: AFLPP5423Q / BY ASSESSEE : SHRI J. P. SHAH A.R. / BY REVENUE : SHRI S. L. CHANDEL SR. D.R. /DATE OF HEARING : 09.09.2016 /DATE OF PRONOUNCEMENT : 30.09.2016 ORDER PER S. S. GODARA JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 1998-99 ARISES AGAINST CIT(A)-II SURATS ORDER DATED 15.11.2006 IN CASE N O. CAS/II/54/05-06 AFFIRMING PENALTY OF RS.4 03 760/- IN PROCEEDINGS U/S.271(1)(C) OF THE INCOME TAX ACT 1961; IN SHORT THE ACT. 2. WE NOTICE AT THE OUTSET THAT THE IMPUGNED SECTIO N 271(1)(C) PENALTY OF RS.4 03 760/- ARISES FROM THREE QUANTUM ADDITIONS O F COMMISSION INCOME ITA NO.1284/AHD/2007 (SHRI DEVRAJBHAI L. PRAJAPATI VS. ITO) A.Y. 1998-99 - 2 - FROM TRANSPORT BUSINESS INCOME FROM TRANSPORT BUSI NESS AND INCOME DISCLOSED DURING SURVEY OPERATION OF RS.2 57 200/- RS.72 000/- & RS.11LACS; RESPECTIVELY. LD. COUNSEL REPRESENTING ASSESSEE FI LES BEFORE US A COPY OF HONBLE JURISDICTIONAL HIGH COURTS JUDGMENT IN TAX APPEAL NO.419/AHD/2007 DECIDED ON 21.07.2016 DELETING THE LAST QUANTUM ADD ITION. LD. DEPARTMENTAL REPRESENTATIVE FAILS TO REBUT THIS FACTUAL POSITION . WE THUS HOLD THAT THE IMPUGNED PERTAINING TO THE LAST QUANTUM ADDITION HA S NO LEGS TO STAND. THE SAME IS ACCORDINGLY DELETED. 3. WE NOW COME TO THE IMPUGNED PENALTY PERTAINING T O FORMER TWO QUANTUM ADDITIONS OF COMMISSION INCOME FROM TRANSPO RT BUSINESS AND INCOME FROM TRANSPORT BUSINESS. THE CIT(A) IN PARA S 3.2 & 3.2 ONWARDS HOLDS THAT THE DEPARTMENTAL AUTHORITIES HAD CONDUCT ED A SURVEY IN ASSESSEES CASE. HE STATED TO HAVE RECEIVED COMMISSIONS OF RS .300/- TO 4000/- PER TRUCK. THE REVENUE AUTHORITIES IN QUANTUM PROCEED INGS PROCEEDED TO ADOPT ESTIMATION METHOD BY TAKING HIRING CHARGES PER TRUC K AS RS.8000/- DIVIDED TOTAL RECEIPTS OF RS.54 46 445/- AFTER REDUCING HIG HER CHARGES OF OWNED TRUCKS AS INDICATED BY THE BANK ACCOUNTS THEREBY DETERMINI NG TOTAL NUMBER OF TRIPS 668. THE ASSESSING OFFICER THEN MULTIPLIED THIS FI GURE TO RS.400/- PER TRIP COMMISSION AMOUNT AND COMPUTED A TOTAL FIGURE OF RS .2 67 200/-. HE THEREAFTER ALLOWED EXPENSES OF RS.10 000/- TO ARRIV E AT THE NET COMMISSION INCOME OF RS.2 57 600/-. 4. WE PROCEED FURTHER AND COME TO INCOME FROM TRANS PORT BUSINESS OF RS.72000/-. THIS CASE FILE INDICATES THAT THE ASSE SSING OFFICER ESTIMATED NET INCOME FROM EACH TRUCK AT RS.24000/- SINCE THE ASSE SSEE WAS UNABLE TO FURNISH ANY DETAILS OF THE HIRE CHARGES. BOTH THE LOWER AUTHORITIES PENALIZED THE ASSESSEE QUA THESE TWO INCOMES U/S.271(1)(C) OF THE ACT. ITA NO.1284/AHD/2007 (SHRI DEVRAJBHAI L. PRAJAPATI VS. ITO) A.Y. 1998-99 - 3 - 5. HEARD BOTH SIDES REITERATING THEIR RESPECTIVE ST ANDS IN THE COURSE OF HEARING. THERE IS NO DISPUTE IN THE ABOVE NARRATED FACTS THAT THE AUTHORITIES BELOW HAVE NOT BEEN POINTED ANY SPECIFIC EVIDENCE O F THE ASSESSEE HAVING ACTUALLY DERIVED THE IMPUGNED INCOME. THEY MERELY PROCEED ON ASSUMPTION AND PRESUMPTION TO END UP IN ADOPTING ESTIMATION ME THOD TO DETERMINE THE IMPUGNED INCOME. THE LAW REGARDING PENALTY PROCEED INGS STANDS VERY WELL SETTLED BY NOW THAT THE SAME ARE PARALLEL TO QUANTU M PROCEEDINGS AND EACH AND EVERY DISALLOWANCE/ADDITION DOES NOT NECESSARIL Y RESULTING IMPOSITION OF SECTION 271(1)(C) PENALTY. WE QUOTE HONBLE APEX C OURTS DECISION IN RELIANCE PETRO PRODUCTS CASE 322 ITR 158(SC) IN SU PPORT. WE REITERATE AT THE COST OF REPETITION THAT IT IS A SURVEY CASE WHE REIN NO ACTUAL EVIDENCE OF ANY SUCH INCOME HAS BEEN BROUGHT ON RECORD. THE AS SESSEES ARGUMENT SUCCEEDS ACCORDINGLY. 6. THE ASSESSEES APPEAL IS ALLOWED. [PRONOUNCED IN THE OPEN COURT ON THIS THE 30 TH DAY OF SEPTEMBER 2016.] SD/- SD/- (MANISH BORAD) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 30/09/2016 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )* + --. . /0 / DR ITAT AHMEDABAD 1 + 23 / GUARD FILE. BY ORDER / . // . /0