Income Tax Appellate Tribunal - Jaipur
Anju Lashkery, Jaipur vs Acit, Jaipur on 10 November, 2016
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IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR
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BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YADAV, AM
vk;dj vihy la-@ITA No. 811/JP/2013
fu/kZkj.k o"kZ@Assessment Year : 2006-07.
Smt. Anju Lashkery,
Prop. M/s. Shri Ratnam,
22, Pulendarji Ka Bagh,
Moti Doongri Road, Jaipur.
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Vs.
The Asstt. Commissioner of Income-tax,
Circle-5,
Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN No. AAGPL 8891 A
vihykFkhZ@Appellant
izR;FkhZ@Respondent
fu/kZkfjrh dh vksj ls@ Assessee by : Shri Praveen Saraswat (C.A.)
jktLo dh vksj ls@ Revenue by : Shri Prithvi Raj Meena (Addl.CIT)
lquokbZ dh rkjh[k@ Date of Hearing : 07.11.2016.
?kks"k.kk dh rkjh[k@ Date of Pronouncement : 10/11/2016.
vkns'k@ ORDER
PER SHRI KUL BHARAT, JM.
This appeal by the assessee is directed against the order of ld. CIT (Appeals)-II, Jaipur dated 05.09.2013 pertaining to A.Y. 2006-07. The assessee has raised the following grounds of appeal :-
The order of the learned CIT (A)-II Jaipur confirming penalty u/s 271(1)(c) of Rs. 2,50,021/- is not justified.
The learned CIT (A) has not consider the fact that in this case AO has estimated G.P. rate @ 15.42% on the declared export sales after considering all facts on record, while on basis of past history of the case Hon'ble ITAT and learned CIT (A) has estimated GP rate @ 12%, therefore the estimated trading addition was reduced to extent of Rs. 7,42,785/- in which penalty was imposed. Thus there was no concealment on part of assessee or inaccurate particulars of income.
The learned CIT (A) has not considered the fact on record that on similar circumstances no penalty has been imposed by AO in preceding years and in subsequent years.
The assessee has also raised an additional ground which reads as under :-
" That there was not a definite conclusion in the assessment order at the time of initiation of proceedings and there being no satisfaction as to on what basis the penalty has been imposed namely; whether it is concealment of income or furnishing of inaccurate particulars of such income. Satisfaction has to be at the time of the very initiation of the proceeding, there being no such satisfaction, the penalty imposed being unjustified, bad in law, deserves to be deleted."
2. Briefly stated the facts of the case are that while framing the assessment under section 143(3) of the I.T. Act, 1961 (hereinafter referred to as the Act), the AO made estimation of profit and consequently made trading addition of Rs. 31,70,756/-. On appeal to the ld. CIT (A), this trading addition was reduced to Rs. 7,42,785/- and also initiated penalty proceedings under section 271(1)(c) of the Act. Subsequently, the AO levied penalty of Rs. 2,50,021/-. Aggrieved by this order, the assessee preferred an appeal before ld. CIT (A), who after considering the submissions dismissed the appeal of the assessee.
3. Now the assessee is in appeal before us.
4. First, we take up the additional ground raised by the assessee as mentioned above.
4.1. The ld. Counsel for the assessee submitted that initiation of penalty is bad in law in view of the judgment of Hon'ble Karnataka High Court rendered in the case of CIT vs. Manjunatha Cotton & Ginning Factory (2013) 359 ITR 565 (Kar.) and also the judgment of Hon'ble Karnataka High Court in the case of CIT vs. SSA'S Emerald Meadows (2016) 73 taxmann.com 241 (Kar.). He submitted that the SLP filed by the revenue against the order of Hon'ble Karnataka High Court in the case of CIT vs. SSA'S Emerald Meadows has been rejected by the Apex Court. The ld. Counsel pointed out that there is no specific charge. The notice issued under section 271(1)(c) is in a mechanical manner. Therefore, he prayed that penalty levied by the AO should be quashed.
4.2. On the contrary, the ld. D/R supported the orders of the authorities below. He submitted that this ground is raised for the first time before this Tribunal. The assessee has not filed this ground before ld. CIT (A).
4.3. We have heard rival contentions and perused the material available on record. Admittedly this ground was not raised before ld. CIT (A). This being a legal ground and in view of the judgment of Hon'ble Supreme Court in the case of CIT vs. SSA'S Emerald Meadows (supra), after considering the totality of facts and circumstances as the assessee has not raised this ground before ld. CIT (A), we deem it proper to admit this ground. However, as this ground was not raised before ld. CIT (A), we deem it proper to restore this ground to the file of ld. CIT (A). Accordingly, we set aside the order of ld. CIT (A) and restore the matter to the file of ld. CIT (A) for decision afresh on both the issues.
5. In the result, appeal of the assessee is allowed for statistical purpose.
Order pronounced in the open court on 10/11/2016.
Sd/- Sd/-
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(VIKRAM SINGH YADAV) ( KUL BHARAT )
ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member
Jaipur
Dated:- 10/11/2016.
Das/
vkns'k dh izfrfyfi vxzsf"kr@Copy of the order forwarded to:
1. The Appellant- Smt. Anju Lashkery, Jaipur.
2. The Respondent- The ACIT, Circle-5, Jaipur.
3. The CIT(A).
4. The CIT,
5. The DR, ITAT, Jaipur
6. Guard File (ITA No. 811/JP/2013)
vkns'kkuqlkj@ By order,
lgk;d iathdkj@ Assistant. Registrar
4
ITA NO. 811/JP/2013
Smt. Anju Lashkery.