Shri Kishorbhai Dhirajlal Shekh, Bhavnagar v. The Income tax Officer, Ward-2(3),, Bhavnagar

ITA 1970/AHD/2006 | 2001-2002
Pronouncement Date: 23-07-2010 | Result: Allowed

Appeal Details

RSA Number 197020514 RSA 2006
Assessee PAN AANPS4673B
Bench Ahmedabad
Appeal Number ITA 1970/AHD/2006
Duration Of Justice 3 year(s) 10 month(s) 10 day(s)
Appellant Shri Kishorbhai Dhirajlal Shekh, Bhavnagar
Respondent The Income tax Officer, Ward-2(3),, Bhavnagar
Appeal Type Income Tax Appeal
Pronouncement Date 23-07-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted SMC
Tribunal Order Date 01-06-2007
Date Of Final Hearing 16-07-2010
Next Hearing Date 16-07-2010
Assessment Year 2001-2002
Appeal Filed On 12-09-2006
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 SMC SMC SMC SMC BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI N NN N. .. .S. SAINI S. SAINI S. SAINI S. SAINI ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE OF HEARING : DRAFTED ON: ITA NO. 1970 /AHD/ 2006 ASSESSMENT YEAR :2001-02 SHRI KISHORBHAI D.SHEKH 419 ROYAL COMPLEX HAJUR PAYGA ROAD BHAVNAGAR. VS. THE INCOME TAX OFFICER WARD 2(3) INCOME TAX OFFICE BHAVNAGAR. PAN/GIR NO. : AANPS 4673 B (A PPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI ALPESH K.DODIA. RESPONDENT BY: SHRI B.D.BAROT 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 :- THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-XV III AHMEDABAD DATED 7-7-2006. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL:- 1. THE HON'BLE C.I.T.(APPEALS) HAS FAILED TO JUDI CIOUSLY EVALUATE THE FACTS OF THE CASE IN REJECTING THE CON TENTION OF THE ASSESSEE THAT THE ORDER LEVYING PENALTY HAS BEE N PASSED BY THE LEARNED ASSESSING OFFICER WITHOUT GIVING REA SONABLE OPPORTUNITY OF BEING HEARD. SINCE THE ORDER LEVYING PENALTY SUFFER FROM BASIC INFIRMITY OF VIOLATING PRINCIPLES OF NATURAL JUSTICE IT IS SUBMITTED THAT THE LEVY OF PENALTY B E DELETED. 2. WITHOUT PREJUDICE TO WHAT IS STATED ABOVE EVE N OTHERWISE CONSIDERING THE FACTS AND CIRCUMSTANCES O F THE CASE IN LIGHT OF THE JUDGEMENT OF HON'BLE GUJARAT H IGH COURT IN NATIONAL TEXTILES VS. CIT (2001) 249 ITR 125 (GU J.) PENALTY UNDER SECTION 271(1)(C) IS NOT LEVIABLE. 3. IN THE ALTERNATE IT IS PLEADED THAT CONSIDERI NG THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEVY OF PENALTY BE REDUCED TO 100% OF TAX SOUGHT TO BE EVADED INSTEAD OF 200% - 2 - LEVIED BY THE ASSESSING OFFICER AND CONFIRMED BY TH E LEARNED COMMISSIONER OF INCOME TAX (APPEALS). 3. THE BRIEF FACTS OF THE CASE ARE THAT DURING THE ASSESSMENT PROCEEDINGS THE LEARNED ASSESSING OFFICER MADE ADDI TION UNDER SECTION 68 IN RESPECT OF CASH CREDITS SHOWN IN THE BOOKS OF ACCOUNT FROM 11 CREDITORS AMOUNTING TO `.1 85 000/-. THE LE ARNED ASSESSING OFFICER AFTER CONSIDERING THE FACTS CONC LUDED THAT THE CASH CREDITORS HAD NO SUFFICIENT SOURCE OF INCOME A ND NO CAPACITY TO ADVANCE THE MONEY TO THE ASSESSEE AND THAT THE G ENUINENESS OF THE TRANSACTIONS WERE NOT PROVED. THE LEARNED ASSES SING OFFICER HAD ALSO POINTED OUT THAT THE ASSESSEE HAD SUBMITTE D CONFIRMATION LETTERS FROM THE CREDITORS WITHOUT COMPLETE POSTAL ADDRESS INTENTIONALLY SO THAT THE LEARNED ASSESSING OFFICER COULD NOT MAKE CROSS EXAMINATION OF THE SAID 11 CREDITORS. IT WAS ALSO POINTED OUT BY THE LEARNED ASSESSING OFFICER THAT THE ASSESSEE WAS GIVEN MANY OPPORTUNITIES TO PROVE THE IDENTITY OF THE CREDITOR S THE CAPACITY OF SUCH CREDITORS TO ADVANCE THE MONEY AND GENUINENESS OF THE TRANSACTION. HOWEVER THE ASSESSEE FAILED TO PRODUC E PROPER EVIDENCE TO ESTABLISH THE GENUINENESS OF THE TRANSA CTION. IN THE CIRCUMSTANCES THE LEARNED ASSESSING OFFICER MADE A DDITION INVOKING PROVISIONS OF SECTION 68 OF THE I.T. ACT. BEING AGGRIEVED THE ASSESSEE PREFERRED APPEAL AGAINST THIS ORDER BE FORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) WHO DI SPOSED OF THE APPEAL BY ORDER DATED 11-5-2005 CONFIRMING THE FINDINGS OF THE LEARNED ASSESSING OFFICER EXCEPT IN THE CASE OF THR EE CREDITORS OUT OF 11 CREDITORS GRANTING RELIEF OF `.53 000 OUT OF ADDITION OF `. 1 85 000/-. THUS THE ADDITION OF `.1 32 000/- WAS CONFIRMED BY THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS). 4. THEREAFTER THE LEARNED ASSESSING OFFICER LEVIED PENALTY UNDER SECTION 271(1)(C) OF THE ACT OF `.1 25 000/- ON THE ASSESSEE ON ACCOUNT OF CONCEALMENT OF INCOME BY THE ASSESSEE BY SHOWING CASH CREDITORS OF `.1 32 000/- WHICH WERE NOT GENUI NE. 5. ON APPEAL FILED BY THE ASSESSEE THE LEARNED COM MISSIONER OF INCOME TAX (APPEALS) CONFIRMED THE LEVY OF PENAL TY. - 3 - 6. AT THE TIME OF THE HEARING THE LEARNED AUTHORISE D REPRESENTATIVE OF THE ASSESSEE FILED BEFORE US COPY OF ORDER OF THE TRIBUNAL PASSED IN THE QUANTUM APPEAL OF THE ASSESS EE FOR ASSESSMENT YEAR 2001-02 IN ITA NO.1478/RJT/2005 DAT ED 13-11- 2009 WHEREIN THE TRIBUNAL RESTORED THE MATTER BACK TO THE FILE OF THE LEARNED ASSESSING OFFICER FOR RE-ADJUDICATING T HE ISSUE. THEREFORE IT WAS THE SUBMISSION OF THE LEARNED AUT HORISED REPRESENTATIVE OF THE ASSESSEE THAT THE ISSUE OF PE NALTY SHOULD ALSO BE RESTORED BACK TO THE FILE OF THE LEARNED AS SESSING OFFICER FOR FRESH ADJUDICATION IN LIGHT OF THE DECISION TAK EN BY THE LEARNED ASSESSING OFFICER IN THE ORDER PASSED BY HIM PURSUA NT TO THE ORDER OF THE TRIBUNAL DATED 13-11-2009. 7. THE LEARNED DEPARTMENTAL REPRESENTATIVE AGREED W ITH THE SUBMISSION OF THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE. 8. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIALS ON RECORD I FIND THAT IN THE INSTANT CASE THE LEARNED ASSESSING OFFICER MADE ADDITION OF `.1 85 000/- UNDER SECTION 68 OF T HE ACT ON ACCOUNT OF UNEXPLAINED CASH CREDIT AND ON APPEAL BY THE ASSESSEE THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) CON FIRMED THE ADDITION OF `.1 32 000 OUT OF THE ABOVE ADDITION. THEREAFTER THE LEARNED ASSESSING OFFICER LEVIED PENALTY UNDER SECT ION 271(1)(C) OF THE ACT OF `.1 25 000/- FOR CONCEALMENT OF INCOME B Y THE ASSESSEE WHICH WAS CONFIRMED IN APPEAL BY THE LEARNED COMMIS SIONER OF INCOME TAX (APPEALS). THE LEARNED AUTHORISED REPRES ENTATIVE OF THE ASSESSEE HAS FILED COPY OF ORDER OF THE TRIBUNA L DATED 13-11- 2009 PASSED BY THE TRIBUNAL IN THE QUANTUM APPEAL F ILED BY THE ASSESSEE IN ITA NO.1478/RJT/2005 WHEREIN THE TRIBUN AL HAS RESTORED THE ADDITION OF `.1 32 000/- ON ACCOUNT OF UNEXPLAINED CASH CREDIT TO THE FILE OF THE LEARNED ASSESSING OF FICER FOR FRESH ADJUDICATION IN ACCORDANCE WITH THE DIRECTIONS CONT AINED IN THAT ORDER. IN THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE IT IS THE - 4 - CONTENTION OF THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE THAT THE ISSUE OF PENALTY ON UNEXPLAINED CASH CREDIT OF `. 1 32 000/- SHOULD ALSO BE RESTORED BACK TO THE FILE OF THE LEARNED ASSESSING OFFICER FOR ADJUDICATION IN LIGHT OF THE DECISION TAKEN BY THE LEARNED ASSESSING OFFICER IN THE SET ASIDE ORD ER PASSED BY HIM PURSUANT TO THE ORDER OF THE TRIBUNAL DATED 13-11-2 009. THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS ALSO AGREED WITH THE SUBMISSION OF THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE. I THEREFORE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND RESTORE THE ISSUE OF LEVY OF PENALTY ON UNEXPLA INED CASH CREDIT UNDER SECTION 68 OF THE ACT OF `.1 32 000/- BACK TO THE FILE OF THE LEARNED ASSESSING OFFICER FOR FRESH ADJUDICATION I N LIGHT OF THE ORDER PASSED BY HIM IN THE SET ASIDE ORDER IN PURSU ANCE TO THE ORDER OF THE TRIBUNAL DATED 13-11-2009 IN ITA NO.14 78/RJT/2005 IN THE QUANTUM APPEAL OF THE ASSESSEE. THEREFORE THE GROUNDS OF APPEAL OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 9. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER SIGNED DATED AND PRONOUNCED IN THE COURT ON 23RD JULY 2010. SD/- ( N.S. SAINI ) ACCOUNTANT MEMBER AHMEDABAD; ON THIS 23RD DAY OF JULY 2010 PATKI COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)- 5. THE DR AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER - 5 - //TRUE COPY// (DY./ASSTT.REGISTRAR) ITAT AHMEDABAD DATE INITIALS 1. DRAFT DICTATED ON 22-7-10 --------------- ---- 2. DRAFT PLACED BEFORE AUTHORITY 22-7-10 ----- -------------- 3. DRAFT PROPOSED & PLACED 22-7-10 ------------ ------- JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 22-7-10 ------------------- JM 5. APPROVED DRAFT COMES TO P.S ---------------- -- ------------------ 6. KEPT FOR PRONOUNCEMENT ON ---------------- --- ----------------- 7. FILE SENT TO THE BENCH CLERK ---------------- -------------------- 8. DATE ON WHICH FILE GOES TO THE ---------------- -------------------- 9. DATE OF DISPATCH OF ORDER ---------------- --- ------------------