Income Tax Appellate Tribunal - Ahmedabad
M/S. Medhbhuti Complex Pvt. Ltd.,, ... vs The Ito, Ward-2(1)(4),, Ahmedabad on 9 July, 2019
-आयकर अपील य अ धकरण, अहमदाबाद यायपीठ - अहमदाबाद ।
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD - BENCH 'A' BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI PRADIPKUMAR KEDIA, ACCOUNTANT MEMBER Sr. ITA No./Asstt.Year Appellant Respondent No. 1-2 ITA No.765/Ahd/2017 M/s.Maitrik Buildcon ITO, Ward-
With P.Ltd. 2(1)(4)
CO No.73/Ahd/2017 "Ganesh Corporate Ahmedabad.
Asstt.Year 2008-09 House"
100 Ft. Hebtatpur
Thaltej Road
Nr.Sola Bridge, Off:
S.G.Highway
Ahmedabad.
PAN : AADCM 2570 M
3-4 ITA No.766/Ahd/2017 M/s.Madhuj Reality ITO, Ward-
With P.Ltd. 2(1)(4)
CO No.74/Ahd/2017 PAN : AADCM 2568 F Ahmedabad.
Asstt.Year 2008-09
5-6 ITA No.767/Ahd/2017 M/s.Martand Estate ITO, Ward-
With P.Ltd. 2(1)(4)
CO No.75/Ahd/2017 PAN : AADCM 2572 K Ahmedabad.
Asstt.Year 2008-09
7-8 ITA No.768/Ahd/2017 M/s.Medhbhuti ITO, Ward-
With Complex P.Ltd. 2(1)(4)
CO No.76/Ahd/2017 PAN : AADCM 2569 E Ahmedabad.
Asstt.Year 2008-09
Revenue by : Smt.Smiti Samant, Sr.DR
Assessee by : Ms. Nupur Shah, AR
सन
ु वाई क तार ख/Date of Hearing : 08/07/2019
घोषणा क तार ख /Date of Pronouncement: 9/07/2019
आदे श/O R D E R
PER BENCH:
These are four appeals by the Revenue against separate orders of the ld.CIT(A)-4, Ahmedabad of even dated i.e. ITA No.765/Ahd/2017 and 3 Others 2 18.1.2017 in the cases of the above four assessees. On receipt of notice on the appeals of the Revenue, assessee have also filed respective cross objections as numbered in the cause title. Since in all these appeals and COs common issue is involved, all of them are disposed of by this single order.
2. Grounds raised by the Revenue in all these appeals are identically worded except variation in quantum of penalty. Sole grievance of the Revenue in these appeals is that the ld.CIT(A) has erred in deleting penalty imposed by the AO under section 271(1)(c) of the Income Tax Act. The quantum of penalty imposed by the AO and deleted by the CIT(A) qua each assessee is as under:
i) M/s.Maitrik Buildcon P.Ltd. : Rs.48,60,580/-
ii) M/s.Madhuj Realty P.Ltd. : Rs.48,77,680/-
iii) M/s.Martand Estate P.Ltd. : Rs.39,71,510/-
iv) M/s.Medhbhuti Complex P.Ltd. : Rs.53,66,180/-
3. As we observed above, facts on all these cases are identical and orders of the ld.CIT(A) under challenge are also verbatim same except change in the amounts of penalty. Therefore, we take the facts as stated in the case of M/s.Maitrik Buildcon P.Ltd., in ITA No.765/Ahd/2017 for the sake of convenience.
4. ld.counsel for the assessee at the very outset submitted that the ld.CIT(A) has deleted the penalty on the ground that additions made by the AO on which this penalty has been levied stands deleted by the ITAT, and therefore, penalty is not imposable. The ITA No.765/Ahd/2017 and 3 Others 3 ld.DR was unable to dispute this contention of the ld.counsel for the assessee.
5. It emerges out from the record that an addition of Rs.2,14,50,039/- was made to the total income of the assessee on ground that the assessee has received cash on sale of land. This was proportionate share. It further emerges out that the assessee-group has received Rs.15.07 crores as on-money out of which proportionate share of the assessee was Rs.2,14,50,039/-. This addition was deleted by the Tribunal vide order 12.5.2016. The ld.CIT(A) has reproduced the finding of the Tribunal in para 5.1 of the impugned order. It reads as under:
"In this background, we find that the addition has been made on the allegation that the assessee-group has received Rs. 15.07 crores as discussed above as on-money from sale of land in question from CCPL. As discussed above, in the case of Dr. Keyur Parikh and others in IT(SS)A Nos. 604/Ahd/2011, it has been held by the ITAT that there was no evidence in possession of Revenue:; to hold that the assessee made unexplained investments towards the purchase of land in question. Nothing contrary was brought to our knowledge on behalf of the Revenue. Since the assessee is a recipient in respect of the same property and it has been held by ITAT that in case of purchaser no unexplained investment has been made in respect of said property as discussed above. So, the addition on receiving on-money in question in the hands of the assessee-group are not justified unless there is evidence on the issue in favour of revenue which is missing in this case. Moreover, revenue authorities ignored the fact that one of common directors of assessee companies, namely -Mr. Shekhar Patel had categorically denied having received cash amount on the sale of land in question. Revenue has ignored the same which is not justified. Assessees have not been provided cross examination of person who is alleged to have made payment of cash of Rs. 15.07 crores to the assessees which is again not justified. Taking all the facts and circumstances of the ITA No.765/Ahd/2017 and 3 Others 4 case, the addition made by the Revenue in all these groups alleged to be received from CCPL does not survive and same is directed to be deleted. This take care of main off on money in land deal in cases of all these assessee of this group."
6. We find that sub-clause (iii) of section 271(1)(c) provides mechanism for quantification of penalty. It contemplates that the assessee would be directed to pay a sum in addition to taxes, if any, payable by him, which shall not be less than , but which shall not exceed three times the amount of tax sought to be evaded by reason of concealment of income or furnishing of inaccurate particulars of income. In other words, the quantification of the penalty is depended upon the addition made to the income of the assessee. In the present case, the addition has been deleted by the Tribunal vide order dated 12.5.2016 cited supra, and therefore penalty under section 271(1)(c) of the Act has not limb to stand. The ld.CIT(A) has rightly cancelled the penalty, which we confirm and the ground of the Revenue challenging impugned penalty is rejected. This observation and findings of our are also equally applicable to the cases of other three assessees. Therefore, appeals of the Revenue in all the cases are dismissed.
7. Now coming to the Cross objections filed by the assessees, we do not find any merit in the CO, because Sub-section 4 of Section 253 authorizes the respondent to file CO against any part of order impugned in the appeal. In the present CO, the assessee has not shown its grievances against any part of the CIT(A)'s order; in other words, cross-objector has to demonstrate his grievance against any part of the impugned order. A perusal of the grounds taken in the CO it nowhere reveals any specific ITA No.765/Ahd/2017 and 3 Others 5 grievance of the assessee; all grounds are in support of order of the ld.CIT(A). Therefore, COs of the assessees are not maintainable.
8. In view of the above discussion, all appeals of the Revenue as well as COs of the assessees, are dismissed.
th Order pronounced in the Court on 9 July, 2019.
Sd/- Sd/- (PRADIPKUMAR KEDIA) (RAJPAL YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER