M/s Eldeco Contruction Pvt. Ltd., Agra v. Asstt.C.I.T.-4(1), Agra

ITA 437/AGR/2010 | 2003-2004
Pronouncement Date: 24-02-2012 | Result: Allowed

Appeal Details

RSA Number 43720314 RSA 2010
Assessee PAN AAACE6483C
Bench Agra
Appeal Number ITA 437/AGR/2010
Duration Of Justice 1 year(s) 2 month(s) 25 day(s)
Appellant M/s Eldeco Contruction Pvt. Ltd., Agra
Respondent Asstt.C.I.T.-4(1), Agra
Appeal Type Income Tax Appeal
Pronouncement Date 24-02-2012
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 24-02-2012
Date Of Final Hearing 22-02-2012
Next Hearing Date 22-02-2012
Assessment Year 2003-2004
Appeal Filed On 29-11-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH AGRA BEFORE SHRI BHAVNESH SAINI JUDICIAL MEMBER AND SHRI A.L. GEHLOT ACCOUNTANT MEMBER ITA NO.437/AGR/2010 ASSESSMENT YEAR: 2003-04 M/S. ELDECO CONSTRUCTION (P) LTD. VS. ASSTT. COMMI SSIONER OF INCOME TAX 28/2 SANJAY PLACE AGRA. 4(1) AGRA. (PAN: AAACE 6483 C). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PANKAJ GARG ADVOCATE RESPONDENT BY : SHRI SOHAIL AKHTAR JR. D.R. DATE OF HEARING : 22.02.2012 DATE OF PRONOUNCEMENT : 24.02.2012 ORDER PER A.L. GEHLOT A.M.: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE IMPUGNED ORDER DATED 13.09.2010 PASSED BY THE CIT(A)-II AGRA FOR THE AS SESSMENT YEAR 2003-04. 2. THE GROUND RAISED IN THIS APPEAL IS IN RESPECT O F PENALTY OF ` 65 000/- LEVIED UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT 1961 . THE ASSESSING OFFICER LEVIED PENALTY UNDER SECTION 271(1)(C) OF THE ACT A S THE ADDITION OF ` 1 66 000/- MADE BY THE ASSESSING OFFICER IN QUANTUM MATTER UND ER SECTION 41(1) OF THE ACT HAS BEEN CONFIRMED BY THE CIT(A). THE ASSESSEE FIL ED CROSS OBJECTION BEFORE THE ITA NOS.437/AGR/2010 A.Y. 2003-04 2 I.T.A.T. WHICH HAS BEEN DISMISSED BY THE I.T.A.T. THE ASSESSING OFFICER LEVIED THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT ON T HE GROUND THAT THE ASSESSEE HAS FAILED TO ESTABLISH THAT THE NATURE OF LIABILITY WA S NOT TRADING LIABILITY. THE ADDITION MADE BY THE ASSESSING OFFICER UNDER SECTION 41(1) O F ` 1 66 000/- HAS BEEN CONFIRMED BY THE CIT(A) WHICH ESTABLISHES THAT THE ASSESSEE HAS DELIBERATELY CONCEALED THE INCOME AND HAS DELIBERATELY FURNISHED INACCURATE PARTICULARS OF INCOME. THE ASSESSING OFFICER LEVIED MINIMUM PENAL TY OF WHICH CALCULATION COMES TO ` 65 000/-. THE CIT(A) CONFIRMED THE PENALTY LEVIED BY THE ASSESSING OFFICER. 3. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PAR TIES AND RECORDS PERUSED. PENALTY UNDER SECTION 271(1)(C) IS LEVIABLE IN CASE WHERE THE ASSESSING OFFICER DURING THE COURSE OF ANY PROCEEDINGS UNDER THIS ACT IS SATISFIED THAT THE ASSESSEE HAS CONCEALED THE PARTICULARS OF HIS INCOME OR FURN ISHED INACCURATE PARTICULARS OF HIS INCOME. EXPLANATION-1 TO SECTION 271(1)(C) PRO VIDES THAT WHERE IN RESPECT OF ANY FACTS MATERIAL TO THE COMPUTATION OF THE TOTAL INCOME OF ANY PERSON UNDER THIS ACT SUCH PERSON FAILS TO OFFER AN EXPLANATION OR O FFERS AN EXPLANATION WHICH IS FOUND BY THE ASSESSING OFFICER TO BE FALSE OR SUCH PERSON OFFERS EXPLANATION WHICH HE IS NOT ABLE TO SUBSTANTIATE AND FAILS TO PROVE T HAT SUCH EXPLANATION IS BONAFIDE AND THAT ALL THE FACTS RELATING TO THE SAME MATERIA LS TO THE COMPUTATION OF HIS TOTAL INCOME HAVE BEEN DISCLOSED BY HIM. IN THE CASE UND ER CONSIDERATION THE ASSESSING ITA NOS.437/AGR/2010 A.Y. 2003-04 3 OFFICER MADE ADDITION OF ` 1 66 000/- BY INVOKING SECTION 41(1) OF THE ACT. T HE ASSESSING OFFICER MADE THE ADDITION AS THE ASSESSEE HAS SHOWN LIABILITY IN THE NAME OF D S CHAUHAN AND KARUNA CHAUHAN EACH AMOUNTING TO ` 83 000/- UNDER THE HEAD SUNDRY CREDITORS. THE ASSESSING OFFICER INVOKED SE CTION 41(1) OF THE ACT ON THE GROUND THAT THE ASSESSEE HAS NOT FURNISHED THE DETA ILS AS REQUIRED TO PROVE THE NATURE OF LIABILITY. THE SUBMISSION OF THE ASSESSE E WAS THAT THE LIABILITIES OF ALL THESE PERSONS WERE SHOWN IN THE LIST OF SUNDRY CRED ITORS. THE AMOUNTS WERE PAYABLE TO THESE PERSONS. BALANCE IN THESE ACCOUNT S WERE CARRIED FORWARD FROM PRECEDING YEARS. THE LIABILITIES WERE NOT RELATING TO THE YEAR UNDER CONSIDERATION. IT WAS ALSO SUBMITTED BY THE ASSESSEE THAT THE LIAB ILITY WAS NEITHER TRADING LIABILITY NOR IT CAN BE SAID TO BE CEASED TO EXIST UNLESS ANY BENEFIT IS ACCRUED TO THE ASSESSEE IN CASH OR IN ANY OTHER MANNER. THE LD. AUTHORISED REPRESENTATIVE IN SUPPORT OF HIS CONTENTION THAT THESE WERE THE OPENING BALANCE REFERRED TO PAGE NOS.61 & 62 OF ASSESSEES PAPER BOOK WHERE COPY OF ACCOUNT OF BOTH THE PARTIES HAVE BEEN PLACED. THE I.T.A.T. WHILE REJECTING THE ASSESSEES CROSS O BJECTION IN WHICH THE ASSESSEE CHALLENGED THE ADDITION OF ` 1 66 000/- OBSERVED THAT SINCE THE AMOUNT WAS RECEIVED BY THE ASSESSEE IN THE COURSE OF CARRYING ON ITS BUSINESS AND IN RESPECT OF WHICH THE LIABILITY HAS BEEN CEASED THEREFORE THE ASSESSING OFFICER HAS RIGHTLY INVOKED SECTION 141(1) OF THE ACT. IF WE CONSIDER THIS FACT IN PLENTY PROCEEDINGS AS IT IS SETTLED LAW THAT PENALTY PROCEEDINGS AND A SSESSMENT PROCEEDINGS BOTH ARE SEPARATE PROCEEDINGS WE NOTICE THAT THE ASSESSING OFFICER HAS FAILED TO MAKE OUT ITA NOS.437/AGR/2010 A.Y. 2003-04 4 THE CASE WHETHER THE ASSESSEE HAS CONCEALED THE PAR TICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME BEC AUSE THE ASSESSING OFFICER HIMSELF HAS TAKEN THE AMOUNT OF ADDITION FROM BALAN CE SHEET WHEREIN THE ASSESSEE HAS SHOWN SUNDRY CREDITORS. UNDER THE CIRCUMSTANCE S IT CANNOT BE HELD THAT THE ASSESSEE HAS CONCEALED THE PARTICULARS OF HIS INCOM E OR FURNISHED INACCURATE PARTICULARS OF HIS INCOME. IT IS ALSO RELEVANT TO MENTION THAT THERE IS NO FINDING OF THE ASSESSING OFFICER IN PENALTY PROCEEDINGS THAT W HATEVER EXPLANATION FURNISHED BY THE ASSESSEE WAS FOUND FALSE. IN THE LIGHT OF T HE FACTS THE CASE OF THE ASSESSEE IS NEITHER COVERED BY SECTION 271(1)(C) OF THE ACT NOR BY EXPLANATION-1 OF SECTION 271(1)(C). WE ARE THEREFORE OF THE CONSIDERED VI EW THAT THE PENALTY UNDER SECTION 271(1)(C) LEVIED BY THE ASSESSING OFFICER AND CONFI RMED BY THE CIT(A) CANNOT BE SUSTAINED. WE THEREFORE CANCEL THE PENALTY OF ` 65 000/- LEVIED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) OF THE ACT. 4. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED . SD/- SD/- (BHAVNESH SAINI) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 24 TH FEBRUARY 2012 PBN/* ITA NOS.437/AGR/2010 A.Y. 2003-04 5 COPY OF THE ORDER FORWARDED TO: APPELLANT RESPONDENT CIT CONCERNED CIT (APPEALS) CONCERNED D.R. ITAT AGRA BENCH AGRA GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL AGRA TRUE COPY