Pritiben Prafulbhai Shah, Surat v. The ACIT.,CC-1,, Surat

ITA 417/AHD/2011 | 2002-2003
Pronouncement Date: 14-11-2014 | Result: Allowed

Appeal Details

RSA Number 41720514 RSA 2011
Assessee PAN AFXPS3412G
Bench Ahmedabad
Appeal Number ITA 417/AHD/2011
Duration Of Justice 3 year(s) 9 month(s)
Appellant Pritiben Prafulbhai Shah, Surat
Respondent The ACIT.,CC-1,, Surat
Appeal Type Income Tax Appeal
Pronouncement Date 14-11-2014
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 14-11-2014
Date Of Final Hearing 05-11-2014
Next Hearing Date 05-11-2014
Assessment Year 2002-2003
Appeal Filed On 14-02-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL CHATURVEDI A.M.) I. T. A. NO S . 416 TO 418 / AHD/ 20 1 1 (A SSESSMENT YEAR: 2001 - 02 2002 - 03 & 2004 - 05) PRAFULBHAI @ ROHITBHAI J. SHAH 2/4456 SHIVDAS ZAVERI NI SHERI SAGRAMPURA SURAT PAN NO. AFXPS3412G V/S THE A.C.I.T. CC - 1 SUR AT (APPELLANT) (RESPONDENT) PRITIBEN PRAFULBHAI SHAH SHAH 2/4456 SHIVDAS ZAVERI NI SHERI SAGRAMPURA SURAT PAN NO. AFXPS 3411F V/S THE A.C.I.T. CC - 1 SURAT (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.N. SOPARKAR A.R. RESPO NDENT BY : SMT. SONIA KUMAR SR. D.R. ( )/ ORDER DATE OF HEARING : 05 - 11 - 2014 DATE OF PRONOUNCEMENT : 14 - 11 - 2014 PER SHRI ANIL CHATURVEDI A.M. 1. THESE 3 APPEALS FILED BY THE ASSESSEE ARE AGAINST THE ORDER OF CIT(A). II AHMEDABAD DATED 09.11.2010 FOR A.Y. 2001 - 02 2002 - 03 & 2004 - 05. 2. BEFORE US AT THE OUTSET LD. A.R. SUBMITTED THAT THOUGH THE APPEALS ARE OF TWO DIFFERENT ASSESSEES AND PERTAINS TO 3 DIFFERENT ASSESSMENT YEARS BUT THE FACTS AND CIRCUMSTANCES ARE SIMILAR EXCEPT FOR THE AMOUNTS AND THEREFORE HE HAS ITA NO S 416 TO 418/AHD/2011 . A.Y. 2001 - 02 TO 2004 - 05 2 COMMON SUBMISSION TO MAKE IN ALL THE 3 APPEALS AND THEREFORE ALL THE 3 APPEALS CAN BE HEARD TOGETHER. WE THEREFORE PROCEED TO DISPOSE OF ALL THE 3 APPEALS BY A CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND THUS PROCEED WITH THE FACTS IN THE CA SE OF PRAFULBHAI PATEL IN ITA NO. 416/AHD/2011 FOR A.Y. 01 - 02 . 3. ASSESSEE IS AN INDIVIDUAL STATED TO BE ENGAGED IN THE BUSINESS OF CHEQUE DISCOUNTING. A SEARCH U/S 132 OF THE ACT WAS CARRIED OUT ON 24.07.2003 AT THE RESIDENTIAL PREMISES OF THE ASSES SEE WHE REIN CERTAIN DOCUMENTS AND LOOSE PAPERS WERE FOUND AND SEIZED. SINCE THE PREMISES OF THE ASSESSEE WAS COVERED BY SEARCH U/S 132 OF THE ACT NOTICES U/S 153A WERE ISSUED ON 17.11.2003 AND IN RESPONSE TO WHICH ASSESSEE FURNISHED RETURN OF INCOME FOR A.Y. 20 01 - 02 ON 25.02.2004 SHOWING TOTAL INCOME AT RS. 1 14 660 / - . THE ASSESSMENT WAS THEREAFTER FRAMED U/S 143A R.W.S. 153A OF THE ACT VIDE ORDER DATED 28.03.2006 AND THE TOTAL INCOME WAS DETERMINED AT RS. 23 84 380/ - BY MAKING ADDITION ON ACCOUNT OF KVP AND NSC S OF RS. 22 49 000/ - AND INTEREST ON FDR S OF RS. 20 720/ - . AGGRIEVED BY THE ORDER OF A.O ASSESSEE CARRIED THE MATTER BEFORE CIT(A) AND SUBSEQUENTLY THE MATTER WAS CA RRIED BEFORE TRIBUNAL. TRIBUNAL VIDE ORDER IN ITA NO. 2795 & 2796 ORDER DATED 18.12.2009 DISMISSED THE APPEAL OF THE ASSESSEE. ON THE AFORESAID ADDITIONS A.O VIDE PENALTY ORDER DATED 31.03.2008 LEVIED PENALTY OF RS. 7 92 537/ - U/S 271(1)(C) OF THE ACT . AGGRIEVED BY THE ORDER OF A.O ASSESSEE CARRIED THE MATTER BEFORE CIT(A) WHO VIDE ORDER D ATED 09.11.2010 DISMISSED THE APPEAL OF THE ASSESSEE. 4. AGGRIEVED BY THE ORDER OF CIT(A) ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS. ITA NO S 416 TO 418/AHD/2011 . A.Y. 2001 - 02 TO 2004 - 05 3 1. LD. ACIT HAS ERRED IN LAW AND ON FACTS TO INITIATE AND LEVY PENALTY - OF RS.7 92 537/ - U/S - 2 71(1 )(C) OF THE ACT IGNORING THE FACT THAT NON - ACCEPTANCE OF EXPLANATIONS AND EVIDENCES DOES NOT AMOUNT TO CONCEALMENT UNDER THE ACT. LD .ACIT HAS LEVIED PENALTY ONLY BECAUSE OF THERE BEING A DIFFERENCE BETWEEN INCOME ASSESSED AND INCOME RETURNED AND FURT HER THE APPELLANT LOST FIRST APPEAL. 2. LD. ACIT HAS ERRED IN LAW AND ON FACTS TO INITIATE AND LEVY PENALTY OF RS.7 92 537/ - U/S 271(1)(C) OF THE ACT ON THE BASIS OF ASSESSMENT MADE CONTRARY TO THE BOARD'S CIRCULAR BEING SOT LEGAL IS LIABLE TO BE CANCELLED. 3. L D. ACIT HAS ERRED IN LAW AND ON FACTS TO INITIATE AND LEVY PENALTY OF RS.7 92 537/ - U/'S 271(L)(C) OF THE ACT WITHOUT SHOWING NATURE OF DEFAULT ON THE PART OF THE APPELLANT IN PENALTY NOTICE. EVEN THE NOTICE IS DEFECTIVE IN MANY RESPECTS AND SERVED ON TH E APPELLANT AFTER LONG DELAYED SO THAT THE APPELLANT WAS PREVENTED TO THE COMPLIANCE OF THE SAME. 4. LD. ACIT HAS ERRED IN LAW AND ON FACTS TO INITIATE AND LEVY PENALTY OF RS.7 92 537/ - U/S 271(1)(C) OF THE ACT WITHOUT PROVING DELIBERATE CONCEALMENT IN TIGH T OF APEX COURT JUDGMENT. 5. LD. ACIT HAS ERRED IN LAW AND OH FACTS TO INITIATE AND LEVY PENALTY OF RS.7 92 537/ - U/S 271(L)(C) OF THE ACT WITHOUT CONSIDERING AMENDED PROVISIONS OF S. 275 OF THE ACT HON'BLE MADRAS HIGH COURT DECISION AND IGNORING THE FACT THA T THE QUANTUM IS NOT FINAL IN APPELLANT'S CASE BY HIGHER APPELLANT AUTHORITIES. 5. BEFORE US THE LD. A.R. SUBMITTED THAT THE A PPEAL HAS BEEN FILED LATE BY 24 DAYS AND ASSESSEE HAS FILED AFFIDAVIT EXPLAINING THE REASONS FOR DELAY IN FILING OF THE APPEAL. CO NSIDER ING THE AVERMENTS MADE IN THE AFFIDAVIT AND WHICH HAS NOT BEEN CONTROVERTED BY REVENUE THE DELAY IN FILING OF APPEAL IS CONDONED AND THE APPEAL IS ADMITTED FOR HEARING. 6. BEFORE US THE LD. A.R. REITERATED THE SUBMISSI ONS MADE BEFORE A.O AND CIT(A) AND SUBMITTED THAT THE ASSESSEE HAS EXPLAINED THE SOURCE DURING THE QUANTUM PROCEEDINGS AND HAD ALSO FURNISHED ALL THE NECESSARY DETAILS. HE FURTHER SUBMITTED THAT THOUGH THE ADDITION HAS BEEN C ONFIRMED IN QUANTUM PROCEEDINGS I T IS NOT NECESSARY THAT PEN ALTY ON SUCH ADDITIONS ALSO SHOULD BE LEVIED AS THE PROCEEDINGS UNDER QUANTUM AND PENALTY ARE DISTINCT AND DIFFERENT. HE THEREFORE SUBMITTED THAT THE PENALTY LEVIED BY DELETED. THE LD. D.R. ON THE OTHER HAND SUPPORTED THE ORDER OF A.O AND CIT(A). 7. WE HAV E HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT IS AN UNDISPUTED FACT THAT ADDITION S WERE MADE BY A.O AND THE SAME HAS BEEN CONFIRMED IN THE QUANTUM PROCEEDINGS AND ON THE ADDITIONS WHICH HAVE BEEN ITA NO S 416 TO 418/AHD/2011 . A.Y. 2001 - 02 TO 2004 - 05 4 CONFIRMED PENALTY U/S 271(1)(C) HAS B EEN LEVIED BY A.O AS FAR AS PENALTY U/S. 271(1)(C) IS CONCERNED IN THE PRESENT CASE WE FIND THAT ASSESSEE HAD FURNISHED EXPLANATION DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND THE EXPLANATIONS SUBMITTED BY THE ASSESSEE HAVE NOT BEEN FOUND TO BE FALSE . IT IS SETTLED LAW THAT PENALTY PROCEEDINGS AND ASSESSMENT PROCEEDINGS ARE TWO INDEPENDENT PROCEEDINGS AND THE PENALTY ORDER CANNOT BE SOLELY BASED ON THE REASONS GIVEN IN THE ORIGINAL ORDER OF ASSESSMENT . IT IS WELL SETTLED THAT THE PARAMETERS OF JUDGIN G THE JUSTIFICATION FOR ADDITION MADE IN THE ASSESSMENT CASE OF THE ASSSESSEE IS DIFFERENT FROM THE PENALTY IMPOSED ON ACCOUNT OF CONCEALMENT OF INCOME OR FILING INACCURATE PARTICULARS OF INCOME AND THAT CERTAIN DISALLOWANCE/ADDITION COULD LEGALLY BE MADE IN THE ASSESSMENT PROCEEDINGS ON THE PREPONDERANCE OF PROBABILITIES BUT NO PENALTY COULD BE IMPOSED U/S. 271(1)(C) OF THE ACT ON THE PREPONDERANCE OF PROBABILITIES AND REVENUE HAS TO PROVE THAT THE CLAIM OF EXPENSES BY THE ASSESSEE WAS NOT GENUINE OR WAS I NFLATED TO REDUCE ITS TAX LIABILITY. FURTHER MERELY BECAUSE ADD ITIONS HAVE CONFIRMED IN APPEAL IT CANNOT BE THE SOLE GROUND FOR COMING TO THE CONCLUSION THAT ASSESSEE HAS CONCEALED ANY INCOME. CONSIDERING THE AFORESAID AND PECULIAR FACTS OF THE CASE WE A RE OF THE VIEW THAT IN THE PRESENT CASE NO CASE FOR PENALTY HAS BEEN MADE OUT. WE THUS DIRECT THE DELETION OF PENALTY. 8. IN THE RESULT THIS APPEAL OF THE ASSESSEE IS ALLOWED. ITA NO. 417 & 418/AHD/2011 IN CASE OF (PRITIBEN PRAFULBHAI SHAH) 9. BEFORE US S INCE BOTH THE PARTIES HAVE SUBMITTED THAT THE FACTS AND CIRC UMSTANCES OF THE PRESENT CASE ARE IDENTICAL TO THAT OF PRAFULBHAI @ ITA NO S 416 TO 418/AHD/2011 . A.Y. 2001 - 02 TO 2004 - 05 5 ROHITBHAI J. SHAH (IN ITA NO. 416/AHD/2011) WE THEREFORE FOR THE SIMILAR REASONS STATED HERE INABOVE WHILE DECIDING THE CASE OF PRAFULBHAI @ ROHITBHAI J. SHAH AND FOR SIMILAR REASONS ALSO ALLOW THE GROUNDS OF ASSESSEE AND DIRECT THE DELETION OF PENALTY LEVIED U/S 271(1)(C) OF THE ACT . 10. IN THE RESULT ALL THE APPEAL S OF THE ASSESSEES ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 14 - 11 - 201 4 . SD/ - SD/ - (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER F ORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR. ITAT AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT AHM EDABAD