The DCIT, Circle-1,, Surat v. M/s. Bessar Diamond Mfg. Co.Pvt.Ltd.,, Surat

ITA 2564/AHD/2010 | 2005-2006
Pronouncement Date: 31-01-2011 | Result: Dismissed

Appeal Details

RSA Number 256420514 RSA 2010
Assessee PAN AABCB5109M
Bench Ahmedabad
Appeal Number ITA 2564/AHD/2010
Duration Of Justice 5 month(s) 3 day(s)
Appellant The DCIT, Circle-1,, Surat
Respondent M/s. Bessar Diamond Mfg. Co.Pvt.Ltd.,, Surat
Appeal Type Income Tax Appeal
Pronouncement Date 31-01-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 31-01-2011
Date Of Final Hearing 24-01-2011
Next Hearing Date 24-01-2011
Assessment Year 2005-2006
Appeal Filed On 27-08-2010
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 D DD D 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 N.S.SAINI SHRI N.S.SAINI SHRI N.S.SAINI SHRI N.S.SAINI ACCOUNTANT ACCOUNTANT ACCOUNTANT ACCOUNTANT MEMBER MEMBER MEMBER MEMBER DATE OF HEARING :24-1-11 DRAFTED ON:2 5.1.11 I TA NO. 2564 /AHD/ 2010 ASSESSMENT YEAR :2005-06 TH E DEPUTY COMMISSIONER OF INCOME TAX CIRCLE-1 ROOM NO.108 AAYAKAR BHAVAN MAJURA GATE SURAT. VS. M/S. BESSAR DIAMOND MFG. CO. 3A SARVODAYA SOCIETY OPP. HOTEL OASIS VAISHALI CINEMA ROAD SURAT. PAN/GIR NO. : AABCB5109M (A PPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI G.S. SOURYAWANSI SR. D.R. RESPONDENT BY: (NONE) WRITTEN SUBMISSION 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 REVENUE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-I SURAT DATED 21-6-2010 FOR ASSESSMENT YEAR 2005-06 CHALLENGING THE CANCELLATIO N OF THE PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE I.T. ACT. 2. IN THE PENALTY ORDER THE LEARNED ASSESSING OFFICER HAS STATED THAT WHILE FINALIZING THE ASSESSMENT AN ADDITION OF `.33 14 36 6/- WAS MADE ON ACCOUNT OF LOW GROSS PROFIT AND PENALTY WAS INITIATED FOR FURN ISHING INACCURATE PARTICULARS OF INCOME AND CONCEALMENT OF INCOME. THE LEARNED AS SESSING OFFICER REJECTED THE BOOK RESULT AND WAS NOT SATISFIED WITH THE EXPL ANATION OF THE ASSESSEE. VIDE SEPARATE ORDER PENALTY WAS ACCORDINGLY IMPOSED. IT WAS SUBMITTED BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) THAT L EARNED ASSESSING OFFICER LEVIED THE PENALTY ON ESTIMATED ADDITION. THEREFORE THE PENALTY SHOULD NOT HAVE BEEN IMPOSED BY THE LEARNED ASSESSING OFFICER. IT WAS FURTHER SUBMITTED THAT THE SIMILAR ADDITION WAS ALSO DELETED AND IT I S LIKELY THAT THE SAME ADDITION - 2 - MAY BE DELETED. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) CONSIDERING THE DETAILS ON RECORD NOTED THAT PENALT Y ON ESTIMATE OF THE G.P. ADDITION SHOULD NOT HAVE BEEN LEVIED. HE ACCORDINGL Y CANCELLED THE PENALTY AND ALLOWED THE APPEAL OF THE ASSESSEE. 3. THE ASSESSEES COUNSEL FILED SUBMISSION IN WHICH IT IS STATED THAT THE ABOVE ADDITION OF `.33 14 366/- FOR WHICH THE PENAL TY WAS IMPOSED HAVE BEEN DELETED ON QUANTUM APPEAL BY THE TRIBUNAL IN ITA NO .1648/AHD/2008 VIDE ORDER DATED 30-6-2010 COPY OF THE ORDER IS PLACED O N RECORD IN WHICH IN PARAGRAPH 10 THE TRIBUNAL HELD AS UNDER :- 10. IN THE PRESENT YEAR ALSO THERE IS FALL IN THE GROSS PROFIT RATE SHOWN BY THE ASSESSEE FROM 12.24% IN THE IMMEDIATEL Y PRECEDING ASSESSMENT YEAR TO 11.27% FOR WHICH THE LEARNED ASS ESSING OFFICER HAS MADE ADDITION TO THE INCOME OF THE ASSESSEE OF RS.33 14 366/- WHICH WAS 1.33% OF THE TURNOVER. THEREFORE THE FACTS OF THE PRESENT YEAR ARE IDENTICAL TO THE FACTS OF THE CASE IN THE ASSESSMENT YEAR 2004-05 AND THEREFORE THE ORDER OF THE TRIBUN AL QUOTED ABOVE IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2004-05 IS SQUARELY APPLICABLE IN THE PRESENT YEAR ALSO. IN ABSENCE OF ANY DISTINGUISHING FEATURES POINTED OUT BY THE LEARNED DEPARTMENTAL RE PRESENTATIVE AND ALSO KEEPING IN VIEW THE FACT THAT NO MATERIAL WAS BROUGHT ON RECORD BY THE LEARNED DEPARTMENTAL REPRESENTATIVE TO SHOW THAT THE ORDER OF THE TRIBUNAL FOR ASSESSMENT YEAR 2004-05 WAS REV ERSED BY A HIGHER FORUM RESPECTFULLY FOLLOWING THE ABOVE QUOT ED ORDER OF THE TRIBUNAL FOR ASSESSMENT YEAR 2004-05 WE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND DELETE THE ADDITION OF RS.33 14 366/-. THUS THIS GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE DID NOT DISPUTE THE ABOVE FACT. 5. ON CONSIDERATION OF THE ABOVE FACTS WE ARE OF TH E VIEW THAT NO INTERFERENCE IS CALLED FOR IN THE MATTER SINCE THE ADDITION ON QUANTUM IS ALREADY DELETED BY THE TRIBUNAL ON THE AMOUNT ON WH ICH THE PENALTY HAS BEEN IMPOSED BY THE LEARNED ASSESSING OFFICER NOTHING WO ULD SURVIVE FOR FURTHER INTERFERENCE IN THE MATTER. ONCE FOR QUANTUM ADDITI ON HAS BEEN DELETED THERE IS NO REASON TO LEVY THE PENALTY ON THE SAME AMOUNT . WE ACCORDINGLY DO NOT FIND ANY MERIT IN THE DEPARTMENTAL APPEAL THE SAME IS ACCORDINGLY DISMISSED. - 3 - IN THE RESULT THE APPEAL OF THE REVENUE IS DISMISS ED. ORDER SIGNED DATED AND PRONOUNCED IN THE COURT ON THIS 31 ST DAY OF JANUARY 2011. SD/- SD/- (BHAVNESH SAINI) ( N.S. SA INI ) JUDICIAL MEMBER ACCOUNT ANT MEMBER DATED: AHMEDABAD 31 ST DAY OF JANUARY 2011. COMPILED AND COMPARED BY: PATKI COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-I SURAT. 5. THE DR AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER //TRUE COPY// (DY./ASSTT.REGISTRAR) ITAT AHMEDABAD DATE INITIALS 1. DRAFT DICTATED ON 25-1-2011 -------------- ----- 2. DRAFT PLACED BEFORE AUTHORITY 25-1-2011 ----- ------------- 3. DRAFT PROPOSED & PLACED 25-1-2011 ----------- -------- JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED 27-1-2011 ---------- --------- JM/AM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO P.S 31-1-201 ---------- ---------- 6. KEPT FOR PRONOUNCEMENT ON 31-1-2011 --------- ----------- 7. FILE SENT TO THE BENCH CLERK 31-1-2011 ------ -------------- 8. DATE ON WHICH FILE GOES TO THE ---------------- -------------------- A.R. 9. DATE OF DISPATCH OF ORDER ---------------- --- ------------------