Income Tax Appellate Tribunal - Ahmedabad
Jashbhai Tribhuvandas Patel, Baroda vs Department Of Income Tax on 8 May, 2013
आयकर अपील य अ धकरण, अहमदाबाद यायपीठ सी, अहमदाबाद ।
IN THE INCOME TAX APPELLATE TRIBUNAL
" C " BENCH, AHMEDABAD
ी मकल
ु ु कमार
ु ावत, या यक सद य एवं ी ए.मोहन अलंकाम ण, लेखा सद य के सम ।
BEFORE SHRI MUKUL Kr.SHRAWAT, JUDICIAL MEMBER And
SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER
आयकर अपील सं./I.T.A.No.667/Ahd/2013
( नधारण वष / Assessment Year : 2007-08)
Income Tax Officer Shri Jashbhai Tribhuvandas
बनाम/
Ward-4(4) Vs. Patel
Baroda C/o.Tulsi Hostel Pvt.Ltd.
3, Shantikunj Society
Manjalpur, Baroda
थायी ले खा सं . /जीआइआर सं . / PAN/GIR No. : AGBPP 8447 P
(अपीलाथ /Appellant) .. ( यथ / Respondent)
अपीलाथ ओर से / Appellant by : Shri D.K.Singh, Sr.D.R.
यथ क ओर से/Respondent by : -NONE-
सनवाई
ु क तार ख / Date of Hearing : 08/05/2013
घोषणा क तार ख /Date of Pronouncement : 17/5/13
आदे श / O R D E R
PER SHRI MUKUL Kr. SHRAWAT, JUDICIAL MEMBER :
This is an appeal filed by the Revenue arising from the order of the ld.CIT(Appeals)-III, Baroda dated 14.12.2012 passed for A.Y. 2007-08 and the ground raised is as follows:-
1. On the facts and on the circumstances of the case, and in law the Ld.Commissioner of Income-tax (A)-III, Baroda has erred in deleting the penalty levied u/s.271(1)(c) of the act ITA No.667/Ahd/2013 ITO vs. Shri Jashbhai Tribhuvandas Patel Asst.Year - 2007-08 -2- merely relying on the submission of the assessee as ignorance of law, without considering the fact that the assessee has neither offered deemed dividend or taxation nor admitted during he assessment proceedings and also without appreciating the fact that the assessee had appealed against the quantum addition though the dividend was taxable in his hands as required u/s.2(22)(e) of the Act.
2. From the order of the AO passed u/s.143(3) dated 22/12/2009 and the impugned order passed u/s.271(1)(c) dated 8.3.2011, it emerged that the assessee is a Director in M/s.Tulsi Hostels Pvt.Ltd.
and because a loan was taken from the said concern, therefore the accumulated profit to the extent of Rs.13,73,143/- as on 31.3.2007 was held as deemed dividend in the hands of the assessee by invoking the provisions of section 2(22)(e) of IT Act. While levying the penalty, the AO had noted that being aggrieved of the said addition an appeal was filed before CIT(A), however that was confirmed vide an order dated 13.5.2010. Hence, the AO had held that the provisions of section 2(22)(e) of IT Act being mandatory in nature and that addition was confirmed, therefore to that extent the assessee has evaded the tax. Resultantly, a penalty of Rs.4,65,000/- was imposed. Being aggrieved, the assessee has challenged the penalty before ld.CIT(A) who has followed few orders of the Tribunal and deleted the penalty.
ITA No.667/Ahd/2013ITO vs. Shri Jashbhai Tribhuvandas Patel Asst.Year - 2007-08 -3-
3. On the date of hearing, no one was present from the side of the respondent-assessee, however considering the brevity of the matter, we hereby proceed ex-parte qua the assessee, after hearing ld.Sr.DR Mr.D.K.Singh who has placed reliance on the penalty order as well as the decision of UOI & Ors. vs. Dharmendra Textile Processors & Ors. (2008) 306 ITR 277(SC) and CIT vs. Zoom Communication (P) Ltd. (2010) 327 ITR 510 (Delhi).
4. On careful perusal of the impugned orders, we have noted that the facts in respect of the loan taken from M/s.Tulsi Hostels Pvt.Ltd. was part of the balance-sheet and very much in the knowledge of the Revenue Department. Which means that all the necessary information was within the knowledge of the AO and no part of the particulars of the said amount was concealed by the assessee. Rather, in our humble understanding, this is a situation where the AO had formed an opinion that the said transaction was in the nature of deemed dividend. Therefore, the undisputed fact is that the addition was made after invoking the deeming provisions of the IT Act. Whether by invoking a deeming provision an addition has been made would qualify for imposition of concealment penalty has been answered by few orders of the Tribunal, viz. Sunilchandra Vohra, 32 SOT 365 (Mum.), Gitanjali Ghate - ITA No.6560/Mum./2010 dated 23.05.2012 (Mumbai Bench). Ld.CIT(A) has followed these decisions and directed to delete the ITA No.667/Ahd/2013 ITO vs. Shri Jashbhai Tribhuvandas Patel Asst.Year - 2007-08 -4- penalty. We find no fallacy in such directions of ld.CIT(A). The view taken by ld.CIT(A) is hereby confirmed and the ground of the Revenue is rejected.
5. In the result, the appeal of the Revenue is dismissed.
Sd/- Sd/-
( ए.मोहन अलंकाम ण ) ( मकल
ु ु कमार
ु ावत )
लेखा सद य या यक सद य
( A. MOHAN ALANKAMONY ) ( MUKUL Kr. SHRAWAT )
ACCOUNTANT MEMBER JUDICIAL MEMBER
Ahmedabad; Dated 17/ 05 /2013
ट .सी.नायर, व. न.स./T.C. NAIR, 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. संबं धत आयकर आयु त / Concerned CIT
4. आयकर आयु त(अपील) / The CIT(A)-III, Baroda
5. वभागीय त न ध, आयकर अपील य अ धकरण, अहमदाबाद / DR, ITAT, Ahmedabad
6. गाड फाईल / Guard file.
ु / BY ORDER,
आदे शानसार
स या पत त //True Copy//
उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील य अ धकरण, अहमदाबाद / ITAT, Ahmedabad
1. Date of direct dictation on computer dated ..9.5.13
2. Date on which the typed draft is placed before the Dictating Member 9.5.13.................. Other Member.....................
3. Date on which the approved draft comes to the Sr.P.S./P.S.................
4. Date on which the fair order is placed before the Dictating Member for pronouncement......
5. Date on which the fair order comes back to the Sr.P.S./P.S.........17.5.13
6. Date on which the file goes to the Bench Clerk..................... 17.5.13
7. Date on which the file goes to the Head Clerk..................................
8. The date on which the file goes to the Assistant Registrar for signature on the order..........................
9. Date of Despatch of the Order..................