Shri Gopal Lahoti,HUF, Surat v. The Income tax Officer,Ward-2(1),, Surat

ITA 2033/AHD/2010 | 2005-2006
Pronouncement Date: 13-01-2011 | Result: Allowed

Appeal Details

RSA Number 203320514 RSA 2010
Assessee PAN AACHG5990H
Bench Ahmedabad
Appeal Number ITA 2033/AHD/2010
Duration Of Justice 7 month(s) 2 day(s)
Appellant Shri Gopal Lahoti,HUF, Surat
Respondent The Income tax Officer,Ward-2(1),, Surat
Appeal Type Income Tax Appeal
Pronouncement Date 13-01-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 13-01-2011
Assessment Year 2005-2006
Appeal Filed On 10-06-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD D BENCH (BEFORE S/SHRI MAHAVIR SINGH JUDICIAL MEMBER AND D.C. AGRAWAL ACOUNTANT MEMBER) ITA NO.2033/AHD/2010 [ASSTT. YEAR : 2005-2006] DICTATED ON: 07-01-2011 GOPAL LAHOTI HUF S-552 JJ (AC) MARKET RING ROAD SURAT PAN AACHG 5990 H VS. ITO WARD-2(1) SURAT. ITA NO.2034/AHD/2010 [ASSTT. YEAR : 2005-2006] PRAVIN CHANDRA KABRA HUF S-553 JJ (AC) MARKET RING ROAD SURAT PAN AACHP 2169 K VS. ITO WARD-2(1) SURAT. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S.K. KABRA REVENUE BY : SMT. SUMIT KAUR O R D E R PER D.C. AGRAWAL ACCOUNTANT MEMBER : THESE APPEALS ARE BY TWO DIFFERENT ASSESSEES AGAINST THE ORDER OF THE CI T(A). SINCE COMMON IS ISSUE INVOLVED IN BOTH THESE APPEALS THEY ARE TAKEN TOGE THER FOR ADJUDICATION FOR THE SAKE OF CONVENIENCE. THESE APPEALS ARE AGAINST THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT 1961. 2. AT THE OUTSET THE LEARNED AR SUBMITTED THAT IN BOTH THE CASES THE QUANTUM OF ADDITION ON WHICH PENALTY UNDER SECTION 271(1)(C) WERE LEVIED ARE SET ASIDE TO THE FILE OF THE AO AND THEREFORE THE P ENALTY CANNOT BE LEVIED. IN THE CASE OF GOPAL LAHOTI-HUF THE LEARNED AR REFERRED T O PARA-7 OF THE ITAT ORDER ITA NO.2033 AND 2034/AHD/2010 -2- IN ITA NO.690/AHD/2008 DATED 25-6-2010 WHEREIN THE ISSUE HAS BEEN RESTORED TO THE FILE OF THE AO AS UNDER: 7. WE HAVE HEARD THE PARTIES AND CAREFULLY PERUSED THE MATERIAL ON RECORD. THE FACTS COLLECTED BY THE AO ARGUMENT S TAKEN BY THE ASSESSEE BEFORE HIM REASONING ADVANCED BY THE AO I N DISALLOWING THE CLAIM OF PAYMENT OF JOB CHARGES TO THESE THREE PARTIES ARE ALSO THE SAME AND REASONING ADVANCED BY LD. CIT(A) IN CO NFIRMING THE DISALLOWANCE ARE ALSO THE SAME AS WE HAVE GIVEN IN THE CASE OF PRAVIN CHANDRA KABRA-HUF VS. ITO IN ITA NO.689/AHD/ 2008 FOR ASSTT.YEAR 2005-06. IN THAT CASE WE HAVE DISCUSSED THE ISSUE AT LENGTH THE FACTS OF THE CASE AND REASONING FOR SET TING ASIDE THE ISSUE TO THE FILE OF AO. FOLLOWING OUR REASONING IN THAT CASE WE RESTORE THIS MATTER TO THE FILE OF AO FOR GIVING REASONABLE OPPORTUNITY TO THE ASSESSEE TO PRODUCE THESE THREE PARTIES BEFORE HIM SO THAT AO CAN SATISFY HIMSELF WHETHER THESE THREE PARTIES HAVE DO NE ANY WORK FOR THE ASSESSEE FOR WHICH PAYMENT IS CLAIMED TO HAVE B EEN MADE. THUS THIS GROUND OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. IN THE CASE OF PRAVIN CHANDRA KABRA HUF IN ITA NO .689/AHD/2008 THE ISSUE HAS BEEN RESTORED IN THE FILE OF THE AO AS UNDER: 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL ON RECORD. IN OUR CONSIDERED VIEW THOUGH T HE TRIBUNAL HAS TAKEN A VIEW THAT NO DISALLOWANCE CAN BE MADE I N RESPECT OF JOB WORK DONE THROUGH THESE THREE PARTIES BUT RULE OF CONSISTENCY WILL NOT APPLY IF FACTS AND CIRCUMSTANCES OF THE CA SE ARE DIFFERENT. IN OUR CONSIDERED VIEW CONSISTENCY IS THE RECOGNIZE D PRINCIPLE AND CURBS OUT AN EXCEPTION FROM THE PRINCIPLE OF RES JU DICATA IF FACTS AND CIRCUMSTANCES OF THE CASE REMAIN THE SAME AND P OSITION OF LAW HAS NOT CHANGED. IN ANY CASE THERE IS A NECESSARY C ONDITION INHERENT IN THE PRINCIPLE OF CONSISTENCY THAT STA ND OF THE AO IN THE PAST SHOULD BE LEGALLY CORRECT AND THERE IS NO ERROR EITHER OF LAW OR OF FACT. IT IS ALSO A JUDICIALLY RECOGNIZED PRINCIPLE THAT THERE IS NO HEROISM TO CONTINUE TO COMMIT ERRORS FROM ONE YEAR TO ANOTHER. IF AO HAS NOT AT ALL CONSIDERED THE ISSUE; OR ASSESSMENT HAS BEEN ACCEPTED UNDER SECTION 143(1); OR ALL THE NECESSARY FACTS FOR APPLYING MIND ON THE ISSUE ARE NOT BROUGHT INTO THE KNOWLEDGE OF THE AO; OR WHILE ACCEPTING A POSITION IN THE EAR LIER ASSESSMENT YEARS GRAVE ERROR OF LAW OR FACT HAS BEEN COMMITTE D; OR THERE HAS BEEN CHANGE IN LAW; OR THERE IS A JUDICIAL DECISION ON THE SUBJECT; OR THERE ARE DISCOVERY OF NEW FACTS WHICH WERE NOT AVAILABLE IN THE ITA NO.2033 AND 2034/AHD/2010 -3- EARLIER YEARS THEN PRINCIPLE OF CONSISTENCY CANNOT BIND THE AO AND HE HAS TO APPLY HIS MIND AFRESH AND ARRIVE AT A FRE SH DECISION. SINCE IN THE PRESENT CASE THE DIFFERENTIATING FACT OR IS THAT AO HAS INSISTED THE PRODUCTION OF THESE THREE PARTIES AND ASSESSEE HAS FAILED TO DO SO THEN ALL OTHER JUDGMENTS OF THE TRI BUNAL WHERE THIS FACTOR IS MISSING CANNOT BE APPLIED. EVEN OTHERWISE ARGUMENTS TAKEN BY THE LD. AO/ LD. CIT(A) AND LD. DR ARE MORE THAN WHAT WAS TAKEN IN THESE CASES. CONSIDERING THE TOTALITY OF F ACTS AND CIRCUMSTANCES OF THE CASE AND DIFFERENTIATING FACTO R IN THE PRESENT CASE WE ARE OF THE CONSIDERED VIEW THAT ASSESSEE S HOULD PRODUCE THREE PARTIES BEFORE THE AO FOR EXAMINATION AND HIS SATISFACTION AS TO WHETHER ANY ACTUAL WORK HAS BEEN DONE BY THEM. T HEREFORE WE RESTORE THE MATTER TO THE FILE OF AO WITH THE DIREC TION THAT HE WILL GIVE REASONABLE OPPORTUNITY TO THE ASSESSEE TO PROD UCE THESE THREE PARTIES. IN CASE ASSESSEE FAILS TO PRODUCE THEM THE AO WILL BE FREE TO TAKE AN INDEPENDENT DECISION. THUS THIS GROUND O F ASSESSEE IS ALLOWED BUT FOR STATISTICAL PURPOSES. ACCORDINGLY THE LEARNED AR SUBMITTED THAT PENALTY WOULD ALSO NOT SURVIVE. 3. WE NOTICE THAT IN THE CASE OF GOPAL LAHOTI-HUF PENALTY HAS BEEN LEVIED IN RESPECT OF THREE ITEMS AS UNDER: 1. M/S. VIKRAM JOB WORKS RS.71 035/-; 2. M/S.SHALINI SCREEN PRINTING WORKS RS.39 726/- 3. M/S.PARTIKA HAND PRINTING WORKS RS.79 726/- TOTAL RS.1 90 697/- THESE ARE THE BOGUS JOB WORK EXPENSES AS POINTED OU T BY THE AO IN THE PENALTY ORDER. THIS ADDITION HAS BEEN SET ASIDE TO THE FIL E OF THE AO AS ABOVE. THEREFORE THE PENALTY WOULD NOT SURVIVE. IN THE C ASE OF SHRI PRAVIN CHANDRA KABRA HUF PENALTY UNDER SECTION 271(1)(C) WAS LEV IED ALSO FOR BOGUS JOB WORK EXPENSES AS UNDER: 1. M/S. VIKRAM JOB WORKS RS.2 24 988/- 2. M/S.SHALINI SCREEN PRINTING WORKS RS.3 29 383/ - 3. M/S.PARTIKA HAND PRINTING WORKS RS.4 02 922/- TOTAL RS.9 57 293/- ITA NO.2033 AND 2034/AHD/2010 -4- THIS ISSUE HAS BEEN SET ASIDE BY THE TRIBUNAL TO TH E FILE OF THE AO AS ABOVE. ACCORDINGLY NO PENALTY WOULD BE LEVIABLE ON THIS A DDITION ALSO. WE ARE SUPPORTED BY THE FOLLOWING DECISIONS: I) ADDITIONAL COMMISSIONER OF INCOME-TAX VS BADRI PRAS AD KASHI PRASAD 200 ITR 206 (ALL); II) PRABHAT OIL TRADERS VS INCOME-TAX OFFICER (NO. 3) 218 ITR AT (39) ITAT[AHM]; III) CITY DRY FISH COMPANY VS COMMISSIONER OF INCOME-TAX (AP) 238 ITR 63 (AP) FOLLOWING THE ABOVE DECISIONS WE ALSO SET ASIDE TH E PENALTY AND DIRECT THE AO THAT WHEN HE MAKES FRESH ASSESSMENT AS PER SET ASID E ORDER THE PENALTY PROCEEDINGS MAY BE INITIATED IF SO WARRANTED. ACC ORDINGLY THE GROUND RAISED IN BOTH THE APPEALS IS ALLOWED. 4. IN RESULT THE ASSESSEES APPEALS ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 13 TH JANUARY 2011 SD/- SD/- (MAHAVIR SINGH) JUDICIAL MEMBER (D.C. AGRAWAL) ACCOUNTANT MEMBER PLACE : AHMEDABAD DATE : 13-01-2011 COPY OF THE ORDER FORWARDED TO: 1) : ASSESSEE 2) : DEPARTMENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR ITAT. BY ORDER DR/AR ITAT AHMEDABAD