Dharmat Hardas Ambalia,, RAJKOT-GUJARAT v. The Income Tax Officer, Ward-3(4),, JAMNAGAR

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH RAJKOT BEFORE SHRI A.L. GEHLOT (AM) AND SHRI N.R.S. GANESA N (JM) I.T.A. NO.981/RJT/2009 (ASSESSMENT YEAR 2005-06) DHARNAT HARDAS AMBALIA VS THE ITO WD.3(4) VILLAGE NANDANA JAMNAGAR TALUKA KALYANPUR DIST - JAMNAGAR PAN : ADPPA5908B (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI DR ADHIA RESPONDENT BY : SHRI JAI RAJ KUMAR O R D E R PER N.R.S. GANESAN JM BEING AGGRIEVED BY THE ORDER OF THE CIT(A) DATED 2 6-02-2009 LEVYING PENALTY OF RS. 1 85 081 U/S 271(1)(C) OF THE I.T. A CT FOR THE ASSESSMENT YEAR 2005-06 THE ASSESSEE PREFERRED THE PRESENT APPEAL BEFORE THIS TRIBUNAL. 2. AT THE OUTSET SHRI DR ADHIA THE LEARNED REPRES ENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE QUANTUM ADDITIONS MADE BY THE LO WER AUTHORITIES ARE SET ASIDE BY THIS TRIBUNAL AND REMITTED BACK THE MATTER TO TH E ASSESSING OFFICER FOR RECONSIDERATION BY AN ORDER DATED 30-06-2009 IN ITA NO.389/RJT/2009. THEREFORE THE PENALTY LEVIED BY LOWER AUTHORITIES IS NOT SUSTAINABLE. ON THE CONTRARY SHRI JAI RAJ SINGH THE LEARNED DEPARTMEN TAL REPRESENTATIVE SUBMITTED THAT THE ASSESSEE HAS IN FACT CONCEALED THE PARTI CULARS OF INCOME. THEREFORE THE LOWER AUTHORITIES LEVIED THE PENALTY WHICH NEED S TO BE CONFIRMED. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND HAVE ALSO PERUSED THE MATERIALS AVAILABLE ON RECORD. ADMITTE DLY THE QUANTUM ADDITIONS MADE BY THE LOWER AUTHORITIES ARE SET ASIDE BY THIS TRIBUNAL AND THE MATTER WAS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER FOR RECONSIDERATION. THEREFORE ITA NO.981/RJT/2009 2 AS ON TODAY NO ONE CAN SAY THAT THE ASSESSEE HAS CO NCEALED ANY PART OF THE INCOME OR HAS FURNISHED ANY INACCURATE PARTICULARS. IN THESE CIRCUMSTANCES IN OUR OPINION LEVY OF PENALTY AT THIS STAGE MAY NOT BE JUSTIFIED. ACCORDINGLY WE SET ASIDE THE ORDER OF THE LOWER AUTHORITY AND CANCEL T HE PENALTY. HOWEVER WE MAKE IT CLEAR THAT IT IS OPEN TO THE ASSESSING OFFICER T O INITIATE PENALTY PROCEEDINGS AFRESH AFTER COMPLETING THE ASSESSMENT IN PURSUANCE TO THE DIRECTION OF THIS TRIBUNAL IN THE QUANTUM APPEAL IN CASE IT IS FOUND THAT THE ASSESSEE CONCEALED ANY PART OF THE INCOME OR HAS FURNISHED INACCURATE PARTICULARS OF INCOME. 4. WITH THE ABOVE OBSERVATION THE APPEAL OF THE AS SESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 25-02-2011. SD/- SD/- (A.L. GEHLOT) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER RAJKOT DT : 25 TH FEBRUARY 2011 PK/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) JAMNAGAR 4. THE CIT JAMNAGAR 5. THE DR (TRUE COPY) BY ORDER ASSTT.REGISTRAR ITAT RAJKOT