The ITO, Ward-5(3),, Ahmedabad v. Rasranjan Food Products (P) Ltd.,, Ahmedabad

ITA 1462/AHD/2008 | 1995-1996
Pronouncement Date: 09-02-2012 | Result: Allowed

Appeal Details

RSA Number 146220514 RSA 2008
Assessee PAN AABCR8986Q
Bench Ahmedabad
Appeal Number ITA 1462/AHD/2008
Duration Of Justice 3 year(s) 9 month(s) 14 day(s)
Appellant The ITO, Ward-5(3),, Ahmedabad
Respondent Rasranjan Food Products (P) Ltd.,, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 09-02-2012
Appeal Filed By Department
Order Result Allowed
Bench Allotted A
Tribunal Order Date 09-02-2012
Date Of Final Hearing 01-02-2012
Next Hearing Date 01-02-2012
Assessment Year 1995-1996
Appeal Filed On 25-04-2008
Judgment Text
-1- IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'A' BEFORE SHRI D K TYAGI JUDICIAL MEMBER AND SHRI A L GEHLOT ACCOUNTANT MEMBER ITA NO.1462/AHD/2008 (ASSESSMENT YEAR:-1995-96) THE INCOME-TAX OFFICER WARD-5(3) AHMEDABAD V/S RASRANJAN FOOD PRODUCTS PVT. LTD. RASRANJAN COMPLEX NR. VIJAY CHAR RASTA NAVRANGPURA AHMEDABAD PAN: AABCR 8986 Q [APPELLANT] [RESPONDENT] ASSESSEE BY :- SHRI J P JANGID SR. DR REVENUE BY:- SMT. URVASHI SHODHAN AR DATE OF HEARING:- 01-02-2012 DATE OF PRONOUNCEMENT:- 09-02-2012 O R D E R PER D K TYAGI (JM) :- THIS IS REVENUES APPEAL AGAINST THE ORDER DATED 06-02-2008 PASSED BY THE LEARNED CIT(A) -XI AHMEDABAD FOR ASSESSMENT YEAR 1995-96 WHEREBY THE LEARNED CIT(A) HAS CANCELLED THE PENALTY LEVIED BY THE AO U /S 271(1)(C) OF THE ACT AMOUNTING TO RS.7 20 562/-. 2 THE FACTS IN BRIEF ARE THAT THE AO INITIATED PENA LTY PROCEEDINGS U/S 271(1)(C) OF THE ACT ON THE BASIS V ARIOUS ADDITIONS / DISALLOWANCES MADE BY THE AO WHICH WERE CONFIRMED BY THE LEARNED CIT(A) AND THE TRIBUNAL. 2 3 THE LEARNED CIT(A) CANCELLED THE PENALTY IN THE F OLLOWING MANNER:- 2 DURING THE COURSE OF APPEAL PROCEEDINGS AGGRIEV ED OF THE AO'S ACTION IT IS SUBMITTED BY THE A. R. THAT ON GIVING EFFECT TO THE ITAT'S ORDER THE REVISED TOTAL INCOME OF THE APPELLANT WA S DETERMINED AT RS. NIL AFTER SETTING OFF UNABSORBED LOSS FOR A. Y. 199 4-95 AND THEREFORE THE APPELLANT IS NOT LIABLE TO PAY ANY TAX ON THE F INAL ASSESSED INCOME. 3 IT IS ARGUED BY THE A. R. THAT NO PENALTY IS WARR ANTED IN THE INSTANT CASE AS THE FINAL ASSESSED INCOME BEING NIL AND THEREFORE THERE IS NO MEANS REA OR MOTIVE OR CONTUMACIOUS CON DUCT IN CONCEALING THE PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. IT IS FURTHER ARGUED THAT EV EN IF SUCH CONCEALMENT WAS ASSUMED TO EXIST SUCH ALLEGED CONC EALMENT COULD NOT LEAD TO ANY EVASION OF TAX. IN SUPPORT OF THIS CONTENTION THE A. R. HAS RELIED UPON THE VARIOUS DECISIONS INDUCTING THE DECISION OF HON'BLE SUPREME COURT INCASE OF CIT VS. PRITHIPAL SINGH & C O. (2001) 249 ITR 670 (SC) AND PLEADED THAT THE ORDER LEVYING PEN ALTY U/S. 271(1)(C) OF THE I. T. ACT 1961 DESERVES TO BE CANCELLED. 3 HAVING VERIFIED THE FACTS AND CIRCUMSTANCES OF TH E CASE AND FOLLOWING THE ABOVE DECISION WHICH IS RELIED UPON BY THE A. R. AS WELL AS THE DECISION OF JURISDICTIONAL ITAT AHMEDABAD I N CASE OF AC IT VS. APSARA PROCESSORS PVT. LTD. (ITA NO. 284/AHD/20 04 DATED 17-12- 2004) I AM OF THE VIEW THAT THE ASSESSING OFFICER IS NOT JUSTIFIED IN LEVYING PENALTY. THEREFORE THE ORDER LEVYING PENAL TY AMOUNTING TO RS.7 20 562/- UNDER SECTION 271(1)(C) OF THE ACT I S HEREBY CANCELLED. 4 AGGRIEVED BY THE ORDER OF THE LEARNED CIT(A) THE REVENUE IS NOW IN APPEAL BEFORE US. THE LEARNED DR SUPPORTE D THE ORDER OF THE AO. 5 AT THE TIME OF HEARING THE LEARNED COUNSEL OF TH E ASSESSEE VIDE HER WRITTEN SUBMISSIONS SUBMITTED THAT THE MA TTER MAY BE DECIDED ON MERITS AT AO LEVEL BY GRANTING OPPORTUNI TY TO PRESENT THE CASE SINCE THE ISSUE HAS BECOME HIGHLY DEBATABL E AS TO 3 WHETHER PENALTY REQUIRES TO BE LEVIED AND IF YES TH AN ON WHICH INCOME?. THE WRITTEN SUBMISSIONS READ AS UNDER:- SUBMISSIONS THE CAPTIONED DEPARTMENTAL APPEAL AGAINST DELETION OF PENALTY IMPOSED U/S 271(1)(C) OF THE ACT DISMISSED BY THE H ON'BLE ITAT CHALLENGED BY THE REVENUE WAS SET ASIDE TO THE HON' BLE ITAT BY THE HON'BLE GUJARAT HIGH COURT AS PER THEIR ORDER IN MI SC. CIVIL APPLICATION NO. 86 OF 2011 FILED IN TAX APPEAL NO. 577 OF 2009. IT IS RESPECTFULLY SUBMITTED THAT THE MATTER REQUIR ES TO BE SET ASIDE TO THE FILE OF AO SINCE NOT ONLY THE PENALTY ORDER WAS PASSED EX PARTE BY AO FURTHER TO THAT APPEAL OF THE ASSESSEE WAS ALLO WED BY ID. CIT (A) RELYING ON THE DECISION OF THE SPECIAL BENCH AHMEDA BAD AS WELL SC JUDGMENT REPORTED AT 249 ITR 670 IN THE CASE OF PRI THIPAL SINGH VS. CIT. THE HON'BLE GUJARAT HIGH COURT HAS NOW SET ASI DE THE DEPARTMENTAL APPEAL TO THE HON'BLE ITAT TO DECIDE T HE DELETION OF PENALTY ON MERITS. IN LIGHT OF ABOVE FACTS IT IS PRAYED TO SET ASIDE THE APPEAL TO THE FILE OF AO SO THAT THE MATTER MAY BE DECIDED ON MERITS AT A O LEVEL BY GRANTING OPPORTUNITY TO THE ASSESSEE TO PRESENT THE CASE SINCE THE ISSUE HAS BECOME HIGHLY DEBATABLE AS TO WHETHER PENALTY R EQUIRES TO BE LEVIED AND IF YES THAN ON WHICH INCOME? RELIANCE IS ALSO PLACED ON THE DECISION OF THE AHMEDABAD DIVISION BENCH DEALING WI TH THE ISSUE WHERE ASSESSEE RETURNED 'NIL' INCOME AND ON SUBSEQU ENT ADDITIONS AFTER SET OFF OF UNABSORBED DEPRECIATION/ BUSINESS LOSS I NCOME IS ASSESSED AT A MUCH LOWER FIGURE THAN THE ADDITIONS SUSTAINED. 6 IN VIEW OF THE ABOVE SUBMISSIONS MADE BY THE LEAR NED COUNSEL OF THE ASSESSEE AND LD. DR HAVING NO OBJECT ION TO THIS REQUEST OF ASSESSEE WE SET ASIDE THE ISSUE TO THE FILE OF THE AO WITH THE DIRECTION TO DECIDE THE ISSUE ON MERITS IN ACCORDANCE WITH LAW AND AFTER AFFORDING AN OPPORTUNITY OF BEIN G HEARD TO THE ASSESSEE TO PRESENT THE CASE. 4 7 IN THE RESULT THE REVENUES APPEAL IS ALLOWED FO R STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT TODAY ON 09-02-2012 SD/- SD/- (A L GEHLOT) ACCOUNTANT MEMBER (D K TYAGI) JUDICIAL MEMBER DATE : 09-02-2012 COPY OF THE ORDER FORWARDED TO: 1. RASRANJAN FOOD PRODUCTS PVT. LTD. RASRANJAN COM PLEX NR. VIJAY CHAR RASTA NAVRANGPURA AHMEDABAD 2. THE INCOME-TAX OFFICER WARD-5(3) AHMEDABAD 3. CIT CONCERNED 4. CIT(A)-XI AHMEDABAD 5. DR ITAT AHMEDABAD BENCH-A AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT AHMEDABAD