Income Tax Appellate Tribunal - Ahmedabad
The Ito, Ward-1(1)(1),, Ahmedabad vs Aakash Deep Farms Pvt. Ltd.,, Ahmedabad on 10 December, 2018
आयकर अपील
य अ धकरण, अहमदाबाद यायपीठ ।
IN THE INCOME TAX APPELLATE TRIBUNAL,
"C" BENCH, AHMEDABAD
BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER
AND
SHRI AMARJIT SINGH, ACCOUNTANT MEMBER
आयकर अपील सं./ ITA.No.561/Ahd/2017
WITH
CO No.72/Ahd/2017
नधा रण वष / Asstt. Year: 2009-10
ITO, Ward-1(1)(1) Vs. Aakash Deep Farms P.Ltd.
Ahmedabad. 2nd Floor, Sarthik Annex
Nr. Fun Republic
Satellite, Ahmedabad 380 015.
PAN : AANCA 6683 M.
अपीलाथ!/ (Appellant) "#यथ!/ (Respondent)
Revenue by : Shri Ranjan Kumar Singh, SR.DR
Assessee by : Shri Dhiren Shah, AR
सन
ु वाई क तार ख/ Dateof Hearing : 06/12/2018
घोषणा क तार ख / Date of Pronouncement: 10/12/2018
आदे श/O R D E R
PER RAJPAL YADAV, JUDICIAL MEMBER:
Revenue is in appeal before the Tribunal against order of ld.CIT(A)-3, Ahmedabad dated 27.12.2016 passed for the Asstt.Year 2009-10, by which the ld.CIT(A) has deleted penalty of Rs.26,39,116/- imposed by the Assessing Officer under section 271(1)(c) of the Income Tax Act, 1961. On receipt of notice on Revenue's appeal, assessee has also filed cross objection bearing no.72/Ahd/2017.
2. For adjudicating the issue on hand, we briefly take note of facts emerging from the orders of the Revenue authorities. The assessee has filed ITA No.561/Ahd/2017 with CO 2 return of income on 30.9.2009 declaring total income at Rs.1,10,350/-. The case of the assessee selected for scrutiny assessment and the assessment was finalized under section 143(3) determining total income at Rs.3,90,65,893/- after making following additions:
i) Addition on account of STCG of Rs. 8,05,292/-
ii) Addition on account of LTCG of Rs.3,03,33,731/-
iii) Disallowance of future & option loss Rs. 77,64,387/-
iv) Disallowance of administrative exp. Rs. 50,247/-
3. In appeal before the ld.CIT(A), the ld.first Appellate Authority has deleted two additions viz. STCG of Rs.8,05,292/- and LTCG of Rs.3,03,33,731/- and confirmed rest of disallowance. Both the Revenue and assessee went in appeal before the ITAT against respective deletion/confirmation of addition made by the ld.CIT(A). In the meanwhile, qua confirmation of addition on account of future and option loss of Rs.77,64,387/- the ld.AO initiated penalty under section 271(1)(c) of the Act, which resulted in imposition of penalty of Rs.26,39,116/-. Assessee challenged imposition of penalty before the ld.CIT(A). The ld.CIT(A) while deleting the penalty has recorded that penalty imposed in relation to addition account of STCG and LTCG have been deleted and disallowance of future and option loss of Rs.77,64,387/- has been set aside by the Tribunal to the file of Assessing Officer for fresh adjudication. Therefore, the ld.CIT(A) held that since no addition was subsisting, penalty could not be sustained. He accordingly deleted the impugned penalty, which is now in challenge by the Revenue before the Tribunal by way of present appeal.
4. Before us, the ld.DR supported the order of the ld.AO, while the ld.counsel for the assessee supported the order of the ld.CIT(A). The ld.counsel for the assessee further submitted that against quantum addition ITA No.561/Ahd/2017 with CO 3 deleted/confirmed by the ld.CIT(A), both the Revenue and assessee preferred appeal before the Tribunal, and the Tribunal ITA No.2138/Ahd/2012 dismissed the Revenue's appeal and confirmed the order of the ld.CIT(A) in respect of addition of STCG of Rs.8,05,292/- and the addition on account of LTCG of Rs.3,03,33,731/-, while in the appeal of the assessee in ITA No.2564/Ahd/2012 the Tribunal has set aside the issue of addition in respect of future and option loss of Rs.77,64,387/- to the file of AO for fresh adjudication. He placed on record copy of order of the Tribunal dated 11.8.2016 passed in the appeals cited supra. He, therefore submitted that no addition is existing as of now for visiting the assessee with penalty under section 271(1)(c) of the Act and the impugned penalty is liable to be cancelled.
5. We have duly considered rival contentions and gone through the record carefully. 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 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 and 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. Penalty in the present case was imposed qua disallowance in respect of future and option loss of Rs.77,64,387/-. This issue has been set aside by the Tribunal in the appeal of the assessee in ITA No.2564/Ahd/2012 vide order dated 11.8.2016 to the file of the ld.AO for fresh adjudication. Therefore, since set aside proceedings qua addition on which impugned ITA No.561/Ahd/2017 with CO 4 penalty has been imposed, is pending before the Assessing Officer, penalty at this stage is not sustainable. The ld.CIT(A) has considered the issue after taking into consideration the order of the Tribunal dated 11.8.2016 and cancelled the penalty. We uphold his order and dismiss the appeal of the Revenue.
6. So far CO of the assessee is concerned, the same is merely in support of the order of the ld.CIT(A), and does not address any grievance against any part of that order. The same is, therefore infructous, and thus stands dismissed.
7. In the result, appeal of the Revenue and CO of the assessee, both are dismissed Order pronounced in the Court on 10th December, 2018 at Ahmedabad.
Sd/- Sd/- (AMARJIT SINGH) (RAJPAL YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER