The Dcit Circle 10 Ahmedabad v. Shri Karsanbhai Khodidas Patel Ahmedabad

1 In The Income Tax Appellate Tribunal A Bench Ahmedabad Before Honble Shri T K Sharma Judicia L Member And Honble Shri N S Saini Accountant Member Ita No 4115 Ahd 2008 Assessment Year 2002 2003 Deputy Commissioner Of Income Tax Circle 10 Ahmedabad Versus Karsanbhai Khodidas Patel Huf Ahmedabad Pan Aaahp 7025 Q Appellant Respondent For The Appellant Shri Rajeev Agarwal Cit For The Respondent S Shri S N Soparkar And Hi Manshu Shah Order Per T K Sharma Judicial Member This Appeal By The Revenue Is Against The Order Dated 05 11 2008 Of Ld Commissioner Of Incom E Tax Appeals Xvi Ahmedabad Cancelling The Penalty Of Rs 80 57 113 For The Assessment Year 2002 03 2 Briefly Stated The Facts Are That For The Assess Ment Year Under Appeal The A O Levied The Penalty Of Rs 80 57 113 Under Section 271 1 C In Respect Of Following Two Additions I Rs 2 11 535 On Account Of Accrued Interest Ii Rs 2 61 18 902 On Account Of Short Term Ca Pital Gain On Appeal In The Impugned Order Dated 05 11 2008 T He Learned Commissioner Of Income Tax Appeals Cancelled The Penalty Amounting To Rs 80 57 113 Levied Under Section 271 1 C For The Detailed Reasons Given In Para 6 8 Which Reads As Under 6 Thus In Short The Appellant Has Relied Upon The Judgment Of Itat In The Case Of Kisan Discretionary Family Trus T Vs Acit Cir 10 Ahmedabad In Ita No 1850 Ahd 2007 For A Y 2003 04 On The Identical Facts And Circumstances Of The Cas E The Itat Has Held That Since The Appellant Was Following Cash Sy Stem Of Accounting The Interest Income On The Deep Discoun T Bonds Ofcpns Is To Be Taxed In The Year Of Receipt And No T On Accrual Basis According To The Appellant Since In Similar Case Quantum Addition Has Been Deleted By The Itat Three Is No Scope For Levying Penalty U S 271 1 C The Basis Of Levy O F Penalty Is The Year Of Taxability Of The Income From Deep Discount Bonds The 2 Ita No 4115 Ahd 2008 View Of The Assessing Officer Is That The Interest Income Has To Be Assessed On Year To Year Basis Where The View Of Th E Appellant Is That It Should Bet Axed In The Year Of Receipt As T He Appellant Is Following Cash System Of Accounting The Appellant Has Disclosed All The Facts Of The Income Generating From The Bon Ds And Filed The Related Details Before Assessing Officer Thus The Re Are Different Views Regarding The Year Of Taxability Of The Inter Est Income In Other Words The Short Question Is Whether Penalty U S 271 1 C Can Be Levied In Such Case Where The Issue Of Addit Ion Itself Is Debatable After Considering The Judgment Of The Ho Nble Itat In The Case Of Kisan Discretionary Family Trust Ita N O 1850 Ahd 2007 And The Orders Passed By C I T A X I On Identical Issues In The Case Of Other Following Members Of Th E Group Namely 1 Shri Dhiren K Patel Appeal No C I T A Xi 125 07 08 Dt 11 01 2008 2 Shri Rakesh K Patel Appeal No C I T A Xi 126 07 08 Dt 11 01 2008 3 Shri Karsanbhai K Patel Appeal No C I T A Xi 12 9 07 08 Dt 11 01 2008 I Am In Agreement With The Appellant That On Debata Ble Issues Penalty U S 271 1 C Cannot Be Levied 7 Since In Principle I Have Held That On Debatabl E Issues Penalty U S 271 1 C Cannot Be Levied It Is Immaterial W Hether The Correct Minimum Penalty Leviable Was Rs 80 14 274 As Plea Ded By The Appellant In Ground No 2 Or Rs 80 57 113 As Levi Ed By The Assessing Officer 8 Accordingly Penalty Of Rs 80 57 113 Levied By The A O Is Cancelled Appeal Of The Appellant Is Allowed Aggrieved By The Order Of Learned Commissioner Of I Ncome Tax Appeals The Revenue Is In Appeal Before Us 3 At The Outset Shri S N Soparkar Appeared For T He Assessee And Contended That The Assessee Produced A Copy Of Decision Dated 09 1 0 2009 Of Itat A Bench Ahmedabad In Ita No 1042 Ahd 2006 In The Case Of K Arsanbhai Khodidas Patel Huf In Assessees Own Case For The Assessment Year 2002 03 It Was Submitted By The Ld Counsel Of The Assessee That Both The Additions For Which Penalty Under Section 271 1 C Is Levied Are Deleted By The Itat Dated 09 10 2009 In Ita No 1042 Ahd 2006 In Assessees Own Case Therefore Th E View Taken By The Learned Commissioner Of Income Tax Appeals Cancelling The Penalty Be Upheld 3 Ita No 4115 Ahd 2008 4 On The Other Hand Shri Rajeev Agarwal Cit App Earing For The Revenue Could Not Controvert The Aforesaid Submission Of Th E Ld Counsel Of The Assessee 5 We Have Carefully Gone Through The Orders Of Aut Horities Below As Well As The Decision Of Itat A Bench Ahmedabad In Assessee S Own Case In Ita No 1042 Ahd 2006 For The Assessment Year 2002 03 Admi Ttedly In This Case The Tribunal Has Cancelled Both The Additions On The B Asis Of Which A O Levied The Penalty Under Section 271 1 C Amounting To Rs 80 57 113 These Two Additions Are As Under I The Addition Of Rs 2 11 535 On Account Of Acc Rual Interest And Ii The Addition Of Rs 2 61 18 902 On Account Of Short Term Capital Gain 6 It Is Well Settled Law That Where The Additions Made In The Assessment Order On The Basis Of Which Penalty For Concealment Is Levie D Are Deleted There Remains No Basis At All For Levying Penalty Under Section 271 1 C For Concealment And Therefore In Such A Case No Penalty Can Survive And Penalty Is Liable To Be Cancelled To Sum Up Penalty Cannot Stand If The Addition On The Basis O F Which Penalty Is Levied Under Section 271 1 C Is Deleted 7 In View Of This View Taken By The Learned Commi Ssioner Of Income Tax Appeals Cancelling The Penalty Of Rs 80 57 113 Levied Under Section 271 1 C Is Upheld 8 Resultantly The Appeal Of The Revenue Is Dismis Sed This Order Is Pronounced In Open Court On 13 Th January 2010 Sd Sd N S Saini T K Sharma Accountant Member Jud Icial Member Dated 13 01 2010 Copy Of The Order Is Forwarded To 4 Ita No 4115 Ahd 2008 1 The Appellant 2 The Respondent 3 The Cit A Concerned 4 The Cit 5 The Dr Ahmedabad Bench 6 The Guard File By Order True Copy Asstt Registrar Deputy Registrar Itat Ahmedabad Benches Ahmedabad Laha Sr P S