Income Tax Appellate Tribunal - Ahmedabad
M/S. Radhakishan Pulse Mills,, Borsad vs The Income Tax Officer, Ward-3(4),, ... on 26 February, 2018
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IN THE INCOME TAX APPELLATE TRIBUNAL
" SMC " BENCH, AHMEDABAD
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BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER And
SHRI MAHAVIR PRASAD, JUDICIAL MEMBER
आयकर अपील सं./I.T.A.Nos.1783 & 1784/AHD/2014
( नधा रण वष / Assessment Year : 2006-07)
M/s. Radhakishan Pulse बनाम/ ITO,
Mills Anand Chokdi, Vs. Ward -3(4),
Baroda - 388540 Petlad.
थायी ले खा सं . /जीआइआर सं . / PAN/GIR No. : AACFR 2151 D
(अपीलाथ" /Appellant) .. ( #यथ" / Respondent)
अपीलाथ" ओर से / Appellant by : Shri B. T. Thakkar, A.R.
#यथ" क% ओर से/Respondent by : Shri James Kurian, Sr. D.R.
ु वाई क% तार*ख /
सन Date of Hearing 25/01/2018
घोषणा क% तार*ख /Date of Pronounce ment 26/02/2018
आदे श / O R D E R
PER MAHAVIR PRASAD, JUDICIAL MEMBER :
These are two appeals by the assessee against the separate orders of the Commissioner of Income Tax (Appeals)-I, Baroda, vide Appeal Nos.CAB-I/061/2013-14 and CAB-I/215/2013-14 dated 25/04/2014 for the Assessment Years (AYs) 2006-07.
2. First we take up ITA No.1783/Ahd/2014, assessee has taken following grounds of appeals:
"1. On the facts and in circumstances of the case as well as law on the subject, the learned Commissioner of Income-tax (Appeals) ITA Nos. 1783 & 1784/Ahd/2014 M/s. Radhakishan Pulse Mills vs. ITO Asst.Years -2006-07 -2- has erred in confirming reopening the assessment u/s.148 of the Act.
2. On the facts and circumstances of the case as well as law on the subject, the notice issued u/s.148 is illegal and contrary to law.
3. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income-tax (Appeals) has erred in confirming addition of Rs.19,65,988/- u/s 69D of the act.
4. It is prayed that above addition/disallowance made by Assessing Officer and confirmed by Commissioner of Income-tax (Appeals) may please be deleted."
3. Briefly stated facts as culled out from the records are that in this case, return of income filed on 26/09/2006 declaring total income Rs.23,550/-. The same is processed u/s.143(1). The scrutiny assessment u/s.143(3) of the Act, was completed on 07/11/2008 on taxable income of Rs. 99,620/- The notice u/s.148 was issued on 06.02.2012 and served upon the assessee.
4. Thereafter notice u/s. 142(1) of the Act, issued on 31/05/2012 with particulars of accounts and documents required.
5. In response to statutory notices, Shri Ashok Maheshwri, CA, AR of the assessee, and Kirit Patel, the partner of the captioned firm attended and filed the details required. The captioned firm is doing trading business of pulses, Maize oil cake etc on wholesale basis.
6. On verification of the details furnished by the assessee, it is noticed that the captioned firm has made the repayment of loan/deposit of ITA Nos. 1783 & 1784/Ahd/2014 M/s. Radhakishan Pulse Mills vs. ITO Asst.Years -2006-07 -3- Rs.19,65,988/- by way account payee hundi through M/s. Ranchhodbhai Zaverbhai instead of by account payee cheque/draft as required under the provisions of section 269T of the income tax Act, 1961. The AR of the assessee approached Addl. C.I.T., R-3 to and they are of the opinion that the provision of sec. 69D is applicable in this case but the assessee was given an opportunity to prove with appropriate supporting evidence that such repayments of loan were not made by way of Hundi, but A/c payee cheques issued by the assessee but he could not prove. Hence the repayment of such loan/deposit i.e. Rs, 19,65,988/- shall be deemed to be the income of the assessee as per the provisions of sections 69D.
7. Against the said order assessee preferred first statutory appeal before the ld. CIT(A) who dismissed the appeal of the appellant.
8. We have gone through the relevant record and impugned order. In this case, the scrutiny u/s.143(3) of the I.T. Act, 1961 was completed on 07/11/2008 by assessing income of Rs.99,620/- as against the return of Rs.99,620/- in return of income filed by the assessee on 26/09/2006. Thereafter, a notice u/s. 148 was issued on 06/02/2012. Notice u/s.148 of the Act was issued on the assessee after 4 years of completion of assessment year.
9. In our considered opinion, re-assessment cannot be made after 4 years if assessee has not failed in disclosing all the relevant material in ITA Nos. 1783 & 1784/Ahd/2014 M/s. Radhakishan Pulse Mills vs. ITO Asst.Years -2006-07 -4- support of its contention. Ld. AR cited a judgment of Jurisdictional High Court in the matter of Dishman Pharmaceuticals and Chemicals Limited vs. DCIT (OSD) reported in 346 ITR 245, the aspects touching the powers of an assessing officer to reopen assessment beyond 4 years of the end of assessment year under section 147 of the Income Tax Act.
10. In this case, there was no failure on the part of the assessee in as much as assessee has given details in the audit report itself. Further from the perusal of reasons recorded also, it can be derived that there is no allegation of any failure of assessee in disclosing fully and truly any material fact necessary for its assessment.
11. In view of the above, we hold that notice u/s.148 was issued to the assessee after the period of 4 years of completion of assessment year. We quash the assessment proceedings. Therefore, Appeal of the assessee is allowed.
12. Now we take up ITA No.1784/Ahd/2014 appellant has taken following grounds:
"1. On the facts and in circumstances of the case as well as law on the subject, the learned Commissioner of Income-tax (Appeals) has erred in confirming penalty of Rs.19,65,988/- u/s 271E of the Act.
2. It is prayed that above addition/disallowance made by Assessing Officer and confirmed by Commissioner of Income-tax (Appeals) may please be deleted."
ITA Nos. 1783 & 1784/Ahd/2014 M/s. Radhakishan Pulse Mills vs. ITO Asst.Years -2006-07 -5-
13. Since we have quashed the assessment proceeding in connected appeal in ITA No. 1783/Ahd/2014 in quantum proceeding and granted relied to the appellant and now this appeal is consequential. We delete the penalty of Rs.19,65,988/- u/s.271.
14. In the result, both the appeals filed by the assessee are allowed.
This Order pronounced in Open Court on 26/02/2018
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(PRAMOD KUMAR) ( MAHAVIR PRASAD )
ACCOUNTANT MEMBER JUDICIAL MEMBER
Ahmedabad; Dated 26/02/2018
Priti Yadav, Sr.PS
आदे श क त"ल#प अ$े#षत/Copy of the Order forwarded to :
1. अपीलाथ" / The Appellant
2. #यथ" / The Respondent.
3. संबं1धत आयकर आयु3त / Concerned CIT
4. आयकर आयु3त(अपील) / The CIT(A)-I, Baroda.
5. 6वभागीय त न1ध, आयकर अपील*य अ1धकरण, अहमदाबाद / DR, ITAT, Ahmedabad
6. गाड फाईल / Guard file.
आदे शानुसार/ BY ORDER, स#या6पत त //True Copy// उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील य अ धकरण, अहमदाबाद / ITAT, Ahmedabad True C