M/s. Shreeji Gas Agency, Bhavnagar v. The ACIT.,Circle-2,, Bhavnagar

ITA 3108/AHD/2008 | 1993-1994
Pronouncement Date: 21-01-2011 | Result: Allowed

Appeal Details

RSA Number 310820514 RSA 2008
Assessee PAN AABPP4735C
Bench Ahmedabad
Appeal Number ITA 3108/AHD/2008
Duration Of Justice 2 year(s) 4 month(s) 19 day(s)
Appellant M/s. Shreeji Gas Agency, Bhavnagar
Respondent The ACIT.,Circle-2,, Bhavnagar
Appeal Type Income Tax Appeal
Pronouncement Date 21-01-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 21-01-2011
Date Of Final Hearing 07-01-2011
Next Hearing Date 07-01-2011
Assessment Year 1993-1994
Appeal Filed On 01-09-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH AHMEDABAD (BEFORE S/SHRI G. D. AGARWAL VP AND BHAVNESH SAINI JM) ITA NO.3108/AHD/2008 A. Y.: 1993-94 M/S. SHREEJI GAS AGENCY BHAVNAGAR RAJKOT ROAD SIHOR VS THE A. C. I. T. CIRCLE-2 BHAVNAGAR PA NO. AABPP 4735C (APPELLANT) (RESPONDENT) APPELLANT BY SHRI JAIMIN GANDHI AR RESPONDENT BY SHRI R. K. DHANISTA DR O R D E R PER BHAVNESH SAINI: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT(A)-XX AHMEDA BAD DATED 05 TH MARCH 2008 FOR ASSESSMENT YEAR 1993-94 CHALLENGIN G THE LEVY OF PENALTY U/S 271 (1) ( C ) OF THE IT ACT. 2. IN THE PENALTY ORDER IT HAS BEEN MENTIONED BY T HE AO THAT RETURN OF INCOME FOR ASSESSMENT YEAR 1993-94 WAS FI LED ON 31-10-1993 DECLARING INCOME OF RS.3 70 010/-. THE S AME WAS PROCESSED U/S 143(1) (A) OF THE IT ACT. IN THIS CAS E A SEARCH OPERATION U/S 132 OF THE IT ACT WAS CONDUCTED ON 28 /29-7-1992 AND A SURVEY PROCEEDINGS U/S. 133A OF THE IT ACT WAS ALSO CARRIED OUT ON THE SAME DAY. DURING THE SEARCH PROCEEDINGS CERTAI N BOOKS OF ACCOUNTS AND DOCUMENTS WERE FOUND AND SEIZED. ACCOR DINGLY THE AO FINALIZED THE ASSESSMENT WITH CERTAIN ADDITIONS AS UNDER: ITA NO.3108/AHD/2008 M/S. SHREEJI GAS AGENCY VS ACIT CIR-2 BHAVNAGAR 2 SR. NO. DETAILS AMOUNT 1 BY REJECTION OF BOOKS OF ACCOUNTS RS.6 43 567/- 2 DISALLOWANCE U/S 40A(2)(A) RS.82 088/- 3 EXCESS PAYMENT U/S. 40A(2)(A) RS.86 583/- 4 DISALLOWANCE U9/S. 40A (3) RS.56 275/- AGGRIEVED BY THE ABOVE ADDITIONS THE ASSESSEE FIRM PREFERRED APPEAL BEFORE THE LEARNED CIT(A). THE LEARNED CIT(A) RAJK OT VIDE ORDER DATED 27-2-1997 DECIDED THE APPEAL ALLOWING IN PART WITH DIRECTIONS TO THE AO. THEREAFTER THE AO PASSED THE ORDER AS PER THE DIRECTIONS OF THE LEARNED CIT(A). THE DEPARTMENT WENT IN APPEAL B EFORE THE ITAT. THE ITAT VIDE ORDER DATED 10-11-2006 IN ITA NO.1959 /AHD/1997 HAD PARTLY ALLOWED THE APPEAL WITH DIRECTION TO THE AO TO MAKE ADDITION OF RS.3 50 000/- ON ACCOUNT OF DISCLOSURE MADE U/S. 13 2(4) OF THE IT ACT IN FURTHERANCE OF ADDITION AS DIRECTED BY THE LEARN ED CIT(A). 3. THE AO MADE A DETAILED DISCUSSIONS IN THE PENALT Y ORDER REGARDING THE DISALLOWANCE AND CONCEALMENT OF INCOM E AND IMPOSED PENALTY OF RS.1 73 350/- U/S 271 (1) ( C ) OF THE I T ACT ON THE CONCEALED INCOME OF RS.3 86 940/-. 4. IN THE PENALTY APPEAL BEFORE THE LEARNED CIT(A) THE ASSESSEE DID NOT APPEAR AND DID NOT MAKE ANY SUBMISSION BEFO RE THE LEARNED CIT(A) DESPITE SERVICE OF THE NOTICE. THE LEARNED C IT(A) IN THE ABSENCE OF ANY REPRESENTATION OR ANY WRITTEN SUBMIS SION ON BEHALF OF THE ASSESSEE DECIDED THE APPEAL AND DISMISSED THE A PPEAL OF THE ASSESSEE. HIS FINDINGS IN PARA 4 ARE REPRODUCED BEL OW: ITA NO.3108/AHD/2008 M/S. SHREEJI GAS AGENCY VS ACIT CIR-2 BHAVNAGAR 3 4. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CA SE ASSESSING OFFICERS OBSERVATIONS AND FINDINGS IN TH E PENALTY ORDER ON THE ABOVE SUBJECT. IT IS NOTICED THAT THE APPELLANT HAS NOT PUT FORTH ANY DETAILS/EXPLANATION S BEFORE THE ASSESSING OFFICER OR BEFORE ME IN SUPPO RT OF ITS CLAIM. IT IS SEEN THAT REPEATED OPPORTUNITY WAS ALLOWED TO THE APPELLANT BEFORE LEVYING THE PENALTY BY THE ASSESSING OFFICER BUT IT WAS NOT AVAILED. IN THIS C ASE SEARCH AND SURVEY OPERATIONS WERE CARRIED ON BY THE DEPARTMENT ON ACCOUNT OF WHICH THE PARTNER OF APPEL LANT FIRM MADE DECLARATION OF RS.3.5 LACS IN HIS STATEME NT RECORDED U/S. 132(4) OF THE IT ACT ON 29-7-1992 WHI LE FILING THE RETURNS OF INCOME ON 28-10-1992 THE SAM E WAS NOT DISCLOSED IN THE RETURN. NO RETRACTION WAS MADE TILL FILING OF RETURN. THIS FACT HAS BEEN OBSERVED BY TH E HONBLE ITAT ALSO. EVEN BEFORE ME ALSO NOTHING CON TRARY HAS BEEN PLEADED OR ADDUCED BY THE APPELLANT AGAINS T THE FINDINGS OF THE ASSESSING OFFICER. HENCE I HOL D THAT THE ASSESSING OFFICER HAS RIGHTLY LEVIED THE PENALT Y CONSIDERING THAT THE APPELLANT HAS FURNISHED INACCU RATE PARTICULARS OF INCOME AND CONCEALED ITS INCOME. THEREFORE THE GROUND RAISED BY THE APPELLANT IS DISMISSED. 5. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ASSESSEE RETRACTED FROM THE STATEMENT MADE DURING T HE COURSE OF SEARCH AND THAT ADDITION IS MADE ON ESTIMATED BASIS THEREFORE NO PENALTY IS LEVIABLE. HE HAS RELIED ON THE FOLLOWING DECISIONS: 1) KAILASBEN MANHARLAL CHOKSHI VS CIT 328 ITR 411 2) CIT VS JAGABANDHU PRASANNA KUMAR RUPLAL SEN PODD AR 133 ITR 156 3) CIT VS CALCUTTA CREDIT CORPORATION 166 ITR 29 4) NAVJIVAN OIL MILLS VS CIT 252 ITR 417 AND 5) CIT VS SANGUR VANASPATI MILLS LTD. 303 ITR 53 ITA NO.3108/AHD/2008 M/S. SHREEJI GAS AGENCY VS ACIT CIR-2 BHAVNAGAR 4 6. ON THE OTHER HAND THE LEARNED DR SUBMITTED THAT THE ASSESSEE DID NOT APPEAR BEFORE THE AO AT THE PENALTY STAGE A ND DID NOT FILE ANY EXPLANATION. THE SAME IS THE POSITION BEFORE THE LE ARNED CIT(A) AND THE ASSESSEE DESPITE GIVING OPPORTUNITY OF BEING HE ARD DID NOT FILE ANY EXPLANATION. HE HAS FURTHER SUBMITTED THAT THE AO IN THE PENALTY ORDER HAS SPECIFICALLY NOTED THAT THE FINDINGS OF T HE TRIBUNAL IN WHICH IT IS CLEARLY NOTED THAT THE ASSESSEE HAD SUFFICIEN T TIME TO RETRACT BUT NO RETRACTION HAS BEEN MADE. HE HAS SUBMITTED THAT SINCE NO EXPLANATION IS GIVEN AT ANY STAGE THEREFORE PENALT Y HAS BEEN RIGHTLY CONFIRMED BY THE LEARNED CIT(A). 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND WE ARE OF THE VIEW THAT THE MATTER REQUIRES RECONSIDERATION AT TH E LEVEL OF THE LEARNED CIT(A). THE FACTS NOTED ABOVE SHOW THAT PA RT ADDITIONS WERE MADE BY REJECTING BOOKS OF ACCOUNTS AND THE DISALLO WANCE WERE MADE UNDER SECTION 40A(2) AND 40A(3) IN RESPECT OF CERTAIN DEFAULT COMMITTED BY THE ASSESSEE FOR WHICH EXPLANATION WER E FILED AND THE TRIBUNAL ULTIMATELY DIRECTED THE ADDITION TO RS.3.5 LAKHS. THE LEARNED CIT(A) INSTEAD OF CONSIDERING THE REASONS FOR MODIF YING THE PART ADDITIONS TO SMALLER INCOME HAVE NOT TAKEN CARE TO CONSIDER THE FACTS. IT WAS ALSO NOT HIGHLIGHTED WHETHER IN VIEW OF THE FACTS OF THE CASE ULTIMATELY CONSIDERED BY THE LEARNED CIT(A) IN DELE TING THE ENTIRE ADDITIONS WHETHER IT WAS A FIT CASE FOR HOLDING TH AT THE PENALTY WAS LEVIABLE OR NOT. IN THE ABSENCE OF A DEFINITE FIND ING AND IN THE ABSENCE OF ANY FURTHER REPLY FROM THE SIDE OF THE A SSESSEE WE FIND IT PROPER TO RESTORE THE MATTER BACK TO THE FILE OF TH E LEARNED CIT(A) FOR RECONSIDERATION. WE ACCORDINGLY SET ASIDE THE IM PUGNED ORDER AND ITA NO.3108/AHD/2008 M/S. SHREEJI GAS AGENCY VS ACIT CIR-2 BHAVNAGAR 5 RESTORE THE ISSUE TO THE FILE OF THE LEARNED CIT(A) WITH A DIRECTION TO DECIDE THE APPEAL OF THE ASSESSEE. THE ASSESSEE IS AT LIBERTY TO FILE PROPER REPLY BEFORE THE LEARNED CIT(A). THE LEARNE D CIT(A) MAY ALSO TAKE INTO CONSIDERATION THE DECISIONS RELIED UPON B Y THE LEARNED COUNSEL BEFORE US AS NOTED ABOVE IN THE ORDER. TH E LEARNED CIT(A) SHALL GIVE REASONABLE AND SUFFICIENT OPPORTUNITY T O THE ASSESSEE. 9. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 21-01-2011 SD/- SD/- (G. D. AGARWAL) VICE PRESIDENT (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 21-01-2011 LAKSHMIKANT/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR ITAT AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR ITAT AHMEDABAD