Shri Rakesh Agarwal,, Baroda v. The ACIT., Circle-1(1),, Baroda

ITA 803/AHD/2007 | 1998-1999
Pronouncement Date: 20-04-2010 | Result: Allowed

Appeal Details

RSA Number 80320514 RSA 2007
Assessee PAN AAQPA3487P
Bench Ahmedabad
Appeal Number ITA 803/AHD/2007
Duration Of Justice 3 year(s) 2 month(s)
Appellant Shri Rakesh Agarwal,, Baroda
Respondent The ACIT., Circle-1(1),, Baroda
Appeal Type Income Tax Appeal
Pronouncement Date 20-04-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 20-04-2010
Date Of Final Hearing 20-04-2010
Next Hearing Date 20-04-2010
Assessment Year 1998-1999
Appeal Filed On 19-02-2007
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BEFORE SHRI B. S. SAINI JUDICIAL MEMBER AND SHRI N.S.SAINI ACCOUNTANT MEMBER DATE OF HEARING : 20-04-10 DRAFTED ON: 20-04-10 ITA NO.803/AHD/2007 ASSESSMENT YEAR : 1998-1999 SHRI RAKESH AGRAWAL 61 ALKAPURI BARODA. VS. THE ASST. COMMISSIONER OF INCOME TAX CIRCLE 1 (1) AYAKAR BHAVAN RACE COURSE CIRCLE BARODA. PAN/GIR NO. : AAQPA 3487 P (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI D.K.PARIKH C.A RESPONDENT BY: SHRI RAJA RAM SOH SR. D.R. O R D E R PER N.S.SAINI ACCOUNTANT MEMBER :- THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST T HE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)- I BARODA DATED 15.12.2006. 2. THE SOLE ISSUE INVOLVED IN THE APPEAL IS THAT T HE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) ERRED IN CONFIR MING THE PENALTY OF RS.1 50 000/- LEVIED UNDER SECTION 271( 1)(C) OF THE ACT. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE LEARNE D ASSESSING OFFICER NOTICED THAT IN THE WEALTH-TAX THE ASSESSE E HAS SHOWN NET- - 2 - WEALTH AS ON 31.03.1998 AT RS.4 52 62 043 AS AGAINS T THE NET WEALTH OF RS.4 07 57 689 ON 31.3.1997. HENCE THE NET WEAL TH OF THE ASSESSEE HAS BEEN INCREASED DURING THE YEAR BY RS.45 44 356. HE FURTHER OBSERVED THAT AS AGAINST THE SAID NET INCOME THE A SSESSEE HAS SHOWN EXEMPT INCOME U/S.10(33) OF RS.57 56 184 I.E RS.10 18 765 ON ACCOUNT OF SALARY RS.42.000 ON ACCOUNT OF HOUSE PRO PERTY RS.46 15 612 ON ACCOUNT OF DIVIDEND RECEIPT AND RS. 88 207 ON ACCOUNT OF INTEREST THEREFORE THE TOTAL EARNING O F THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION AS DECLARED IN HIS RETURN OF INCOME ON GROSS BASIS IS TO THE TUNE OF RS.57 56 184. OUT OF THE SA ME THE ASSESSEE HAS SHOWN PAYMENT OF TAX OF RS.3 66 767 AND HOUSE HOLD WITHDRAWALS AT RS.10 95 000 AND TRAVELING EXPENSES OF RS.2 66 600. THUS THE TOTAL OUTGOING OF THE ASSESSEE ARE AT RS.17 28 367 HENCE THE NET CURRENT INCOME AVAILABLE IS RS.40 27 817. HOWEVER ADDITION IN THE NET WEALTH IS OF RS.45 44 354. HENCE THE LEARNED ASSES SING OFFICER TREATED THE AMOUNT OF RS.5 16 537 AS UNDISCLOSED IN COME OF THE ASSESSEE AND THEREFORE HE MADE IMPUGNED ADDITION T O THE TOTAL INCOME. 4. IN APPEAL THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS OBSERVED THAT NO DIRECT TALLY IS A VAILABLE OF VARIOUS EXPENSES AND THE ASSESSEE HAS NOT PRODUCED THE COPI ES OF BANK ACCOUNTS ETC. TO SHOW THE SOURCE OF EXPENSES MUST HAVE BEEN NECESSARILY INCURRED AS CLAIMED AND AS SUCH THE NET ADDITION MADE BY THE LEARNED ASSESSING OFFICER OF RS.5 16 537 IS SUS TAINED THOUGH NOT FOR THE SPECIFIC REASON STATED BY HIM BUT ON ACCOUN T OF THE FACT THAT THE ASSESSEE HAS NOT BEEN ABLE TO SHOW HOW THERE HA S BEEN AN ADDITION TO NET WEALTH OF RS.45 44 354/-. - 3 - 5. THEREAFTER THE LEARNED ASSESSING OFFICER INITI ATED PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT AND LEVIED PENALTY UNDER SECTION 1 50 000/- ON ACCOUNT OF CONC EALMENT OF INCOME WHICH WAS CONFIRMED IN APPEAL BY THE LEARNE D COMMISSIONER OF INCOME TAX(APPEALS). 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS A VAILABLE ON RECORD. AT THE TIME OF THE HEARING THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE FILED COPY OF ORDER OF THE TRIBUNAL IN QUANTUM APPEAL OF THE ASSESSEE IN ITA NO.4525/AHD/2003 DATED 10.08.20 07 AND SUBMITTED THAT THE TRIBUNAL HAS RESTORED THE MATTER BACK TO THE FILE OF THE LEARNED ASSESSING OFFICER FOR REDECIDING THE IS SUE AFTER VERIFICATION OF THE RECONCILIATION FILED BY THE ASS ESSEE WITH THE BOOKS OF ACCOUNT. THEREFORE THE PENALTY LEVIED SHOULD BE DELETED. THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE OTHER HA ND CONTENDED THAT AS THE ISSUE ON WHICH PENALTY WAS LEVIED HAS B EEN REMANDED BACK TO THE FILE OF THE LEARNED ASSESSING OFFICER FOR FR ESH ADJUDICATION THE ISSUE OF PENALTY SHOULD ALSO BE REMANDED BACK TO TH E FILE OF THE LEARNED ASSESSING OFFICER FOR DECIDING THE SAME AFR ESH IN LIGHT OF THE DECISION TAKEN IN THE READJUDICATION OF THE ISSUE. IN THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE WE ARE OF THE CONSID ERED VIEW THAT AS THE ISSUE ON WHICH PENALTY WAS LEVIED HAS BEEN REST ORED BACK TO THE FILE OF THE LEARNED ASSESSING OFFICER FOR READJUDIC ATION THEREFORE THE ISSUE OF PENALTY SHOULD ALSO BE SET ASIDE TO THE FI LE OF THE LEARNED ASSESSING OFFICER FOR DECIDING THE ISSUE OF PENALTY IN THE LIGHT OF THE DECISION TAKEN ON READJUDICATION OF THE ISSUE OF AD DITION TO THE - 4 - INCOME OF THE ASSESSEE. WE ORDER ACCORDINGLY. THUS THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE H EARING IN THE PRESENCE OF THE PARTIES ON 20 TH DAY OF APRIL 2010. SD/- SD/- (BHAVNESH SAINI) ( N.S. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBE R AHMEDABAD; ON THIS 20 TH DAY OF APRIL 2010 PARAS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-I BARODA. 5. THE DR AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER //TRUE COPY// (DY./ASSTT.REGISTRAR) ITAT AHMEDABAD DATE INITIALS 1. DRAFT DICTATED ON 20.04.2010 --------------- ---- 2. DRAFT PLACED BEFORE AUTHORITY 20.04.2010 ----- -------------- 3. DRAFT PROPOSED & PLACED 20.04.2010 ------------ ------- JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED 20.04.2010 ----------- -------- JM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO P.S 20.04.2010 --------- ----------- 6. KEPT FOR PRONOUNCEMENT ON ---------------- --- ----------------- 7. FILE SENT TO THE BENCH CLERK 20.04.2010 ------- ------------- 8. DATE ON WHICH FILE GOES TO THE ---------------- -------------------- 9. DATE OF DISPATCH OF ORDER ---------------- --- ------------------