The DCIT, Circle-1(1),, Baroda v. M/s. Jewel Consumer Care Pvt.Ltd.,, Baroda

ITA 883/AHD/2009 | 2000-2001
Pronouncement Date: 22-07-2011 | Result: Dismissed

Appeal Details

RSA Number 88320514 RSA 2009
Bench Ahmedabad
Appeal Number ITA 883/AHD/2009
Duration Of Justice 2 year(s) 4 month(s) 2 day(s)
Appellant The DCIT, Circle-1(1),, Baroda
Respondent M/s. Jewel Consumer Care Pvt.Ltd.,, Baroda
Appeal Type Income Tax Appeal
Pronouncement Date 22-07-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 22-07-2011
Date Of Final Hearing 18-07-2011
Next Hearing Date 18-07-2011
Assessment Year 2000-2001
Appeal Filed On 20-03-2009
Judgment Text
- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE S/SHRI BHAVNESH SAINI JM AND A. MOHAN ALANK AMONY AM DY. CIT CIR.1(1) BARODA. VS. JEWEL CONSUMER CARE (P) LTD. (ON BEHALF OF DAISY PACKERS (P) LTD.) SUBHAG B-15/16 RAMIN PARKS OLD PADRA ROAD BARODA. (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI P. R. GHOSH DR RESPONDENT BY:- SHRI BANDISH SOPARKAR AR O R D E R PER A. MOHAN ALANKAMONY ACCOUNTANT MEMBER . THIS IS AN APPEAL FILED BY THE REVENUE DIRECTED AG AINST THE ORDER OF THE LD.CIT(A)-I BARODA IN APPEAL NO. CAB-I/18/08-0 9 DATED 22/12/2008 FOR THE ASSESSMENT YEAR 2000-01 PASSED U/S 250 R.W. S 271(1)(C) OF THE ACT RAISING THE FOLLOWING GROUNDS :- (1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LD. CIT(A) ERRED IN CANCELING THE PENALTY OF RS.9 6 3 000/- WITHOUT APPRECIATING THAT THE ASSESSEE HAD FAILED T O OFFER A BONA FIDE EXPLANATION AND IN ANY CASE HAD FAILED TO SU BSTANTIATE ITS EXPLANATION IF ANY FOR NOT DECLARING THE INCOME U /S 2(22)(E) OF RS.25 LACS FROM DEEMED DIVIDEND IN THE RETURN OF IN COME AND HENCE EXPLANATION 1 TO SECTION 271(1) WAS INESCAPAB LY ATTRACTED. ITA NO.883/AHD/2009 ASST. YEAR2000-01 ITA NO.883/AHD/2009 ASST. YEAR 2000-01 2 (2) THE LD. CIT(A) FAILED TO TAKE NOTE OF THE SIGNIFICA NCE OF THE AFORESAID EXPLANATION ENACTED TO DEAL WITH SUCH SIT UATION ONLY BY PLACING THE ONUS OF PROOF ON THE ASSESSEE IN RES PECT OF EACH ADDITION/DISALLOWANCE AS INTERPRETED BY THE APEX CO URT IN THEIR SUCCESSIVE DECISIONS. I. CIT VS. MUSSADILAL RAM BHAROSE 165 ITR 14 20 (SC) II. CIT VS. K.R. SADYAPPAN 185 ITR 49 (SC) III. ADDL. CIT VS. JEEVAN LAL SHAH 205 ITR 244 (SC) IV. B.A. BALASUBRAMANIAM & BROTHERS CO. VS. CIT 236 ITR 977 (SC) V. K.P. MADHUSUDANAN VS. CIT 251 ITR 99 (SC) VI. UNION OF INDIA VS. DHARMENDRA TEXTILES PROCESSORS 2 95 ITR 244 (SC) 2. THE FACTS OF THE CASE AS EMERGING FROM THE PENAL TY ORDER AND THE SUBMISSIONS OF THE ASSESSEE ARE THAT THE ASSESSEE C OMPANY IS A SMALL SCALE INDUSTRIAL UNDERTAKING ENGAGED IN PACKING OF TOOTH BRUSHES FOR ITS PRINCIPAL COMPANIES WHO MANUFACTURED THE TOOTHBRUS HES. THE ASSESSEE COMPANY FILED ITS RETURN OF INCOME FOR ASST. YEAR 2 000-01 ON 09.11.2000. THEREAFTER ON 24.04.2003 A NOTICE U/S 148 WAS ISSUE D AND ASSESSMENT U/S 143(3) R.W.S. 147 WAS FRAMED ON 30/09/2004 MAKING A N ADDITION OF RS.25 00 000/- ON ACCOUNT OF DEEMED DIVIDEND AND IN ITIATED PENALTY PROCEEDINGS. IN THE FIRST APPEAL THE LD. CIT(A) VI DE ORDER DATED 11.05.2006 UPHELD THE ACTION OF THE AO. SUBSEQUENTL Y A NOTICE WAS SERVED ON THE ASSESSEE REQUIRING IT TO SHOW CAUSE A S TO WHY PENALTY NOT BE LEVIED. IN RESPONSE THE ASSESSEE SUBMITTED THAT IT WAS UNDER THE BONA FIDE BELIEF THAT THE ADDITION U/S 2(22)(E) WAS NOT TENAB LE ON VARIOUS LEGAL GROUNDS. IT HAD FURTHER SUBMITTED THAT THE ENTIRE A DDITION U/S 2(22)(E) WAS ITA NO.883/AHD/2009 ASST. YEAR 2000-01 3 BASED ON INTERPRETATION OF LEGAL ISSUES WHICH DID NOT IN ANY WAY REFLECT DELIBERATE CONCEALMENT OF INCOME. HOWEVER THE AO AF TER HAVING CONSIDERED THE ARGUMENTS OF THE ASSESSEE CONCLUDED THAT THE ASSESSEE HAS CONCEALED ITS INCOME AS WELL AS FURNISHED INACCURAT E PARTICULARS OF SUCH INCOME AND THEREBY COMMITTED A DEFAULT WITHIN THE M EANING OF SECTION 271(1)(C) OF THE ACT AND THEREBY LEVIED PENALTY OF RS. 9 63 000/- 3. THE ASSESSEE WENT IN APPEAL BEFORE THE FIRST APP ELLATE AUTHORITY AND ARGUED THAT THERE WAS NO CASE FOR PENALTY IN CASE O F ADDITION ON ACCOUNT OF DEEMED DIVIDEND AS ON THE BASIS OF VARIOUS JUDICIAL DECISIONS THE ASSESSEE WAS UNDER A BONA FIDE BELIEF THAT THE INTE R-CORPORATE DEPOSIT OF RS.25 00 000/- RECEIVED BY IT FROM M/S AMIGO BRUSHE S (P) LTD. WAS NOT TAXABLE AS DEEMED DIVIDEND U/S 2922)(E) OF THE ACT. THE ASSESSEE REITERATED THE ARGUMENTS PLACED BEFORE THE AO DURIN G ASSESSMENT PROCEEDINGS. THE LD. CIT(A) AFTER DELIBERATIONS ON THE SUBMISSIONS OF ASSESSEE DELETED THE PENALTY IMPOSED BY THE AO WIT H THE FOLLOWING OBSERVATION :- 7. I HAVE CONSIDERED THE SUBMISSIONS OF THE LD. AR AND THE FACTS OF THE CASE. I FIND THAT THE FACTS OF THE CASE ARE SQUAREL Y COVERED BY THE DECISION OF MY LD. PREDECESSOR IN THE CASE OF M/S DENTABRUSH LTD. FOR ASST. YEAR 2000-01 IN APPEAL NO.CAB/1-15/07-08. FOLLOWING THE SAID DECISION THE PENALTY IMPOSED OF RS.9 63 000/- ON ADDITION ON ACC OUNT OF DEEMED DIVIDEND IS CANCELLED. AGGRIEVED WITH THE ABOVE ORDER OF LD. CIT(A) THE RE VENUE IS IN APPEAL BEFORE THE TRIBUNAL. ITA NO.883/AHD/2009 ASST. YEAR 2000-01 4 4. WE HAVE HEARD THE PARTIES AND PERUSED THE MATERI AL ON RECORD. AT THE TIME OF HEARING THE LD. AR PLACED A COPY OF THE ORDER OF THE TRIBUNAL IN ITA NOS.1447 & 1986/AHD/2006 ASST. YEAR 2000-01 IN THE CASE OF THE ASSESSEES QUANTUM APPEAL DAISY PACKERS (P) LT D. (ERSTWHILE NAME OF THE ASSESSEE) VS. ACIT CIRCLE 1(1) BARODA AND IN THE CASE OF DENTABURSH (P) LTD. VS. ACIT CIRCLE 1(1) BARODA AND SUBMITTED THAT THE ADDITION OF RS.25 00 000/- U/S 2(22)(E) MADE BY TH E LD. AO HAS BEEN DELETED BY THE TRIBUNAL VIDE ITS ORDER DATED 5/6/20 09. HE SUBMITTED THAT SINCE IN THE QUANTUM APPEAL ADDITION IS DELETED BY THE TRIBUNAL PENALTY ORDER CANNOT SUSTAIN. HE THEREFORE SUBMITTED THAT THE ORDER OF THE LD. CIT(A) BE UPHELD AND THE APPEAL FILED BY THE REVENU E BE REJECTED. THE LD. DR COULD NOT CONTROVERT THE SUBMISSIONS OF THE LD. AR. 5. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PER USING THE MATERIAL ON RECORD AS WELL AS THE ORDER OF THE TRIBUNAL DATED 5 .6.2009 IN THE CASE OF THE ASSESSEE VIZ. DAISY PACKERS (P) LTD.(ERSTWHILE NAME) VS. ACIT AND OTHER WE FIND THAT THE TRIBUNAL HAS DELETED THE IM PUGNED ADDITION OF RS.25 00 000/- MADE U/S 2(22)(E) OF THE ACT. VARIOU S DECISIONS OF HIGHER AUTHORITIES HAVE HELD THAT ONCE IN THE QUANTUM APPE AL THE ASSESSEE SUCCEEDS THEN THE PENALTY ORDER BASED ON THE QUANTU M ORDER WILL NOT SURVIVE. THEREFORE WE HEREBY DELETE THE PENALTY LEV IED BY THE LD.AO. ITA NO.883/AHD/2009 ASST. YEAR 2000-01 5 6. IN THE RESULT THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER WAS PRONOUNCED IN OPEN COURT ON 22/7/11. SD/- SD/- (BHAVNESH SAINI) (A. MOHAN ALANKAMONY) JUDICIAL MEMBER ACCOUNTANT MEMB ER AHMEDABAD DATED : 22/7/11. MAHATA/- COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR ITAT AHMEDABAD 6. GUARD FILE. BY ORDER DEPUTY / ASSTT.REGISTRAR ITAT AHMEDABAD 1.DATE OF DICTATION 20/7/11. 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING MEMBER 21/7/11. /OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.. 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..