Income Tax Appellate Tribunal - Ahmedabad
Swaminarayan ... vs The Acit.,(Osd)Circle-10,, Ahmedabad on 12 March, 2018
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 N.K. BILLAIYA, ACCOUNTANT MEMBER
आयकर अपील सं./ IT(SS)A No.160/Ahd/2015
नधा रण वष /Asstt. Year: 2005-2006
Swaminarayan Avenue (Naranpura) Vs. ACIT (OSD)
Co-op. Hsg. Soiety Ltd. Cir.10, Ahmedabad.
Dharamadev House
Shyamal Cross Roads
Ahmedabad.
PAN : AAEAS 2037 G
अपीलाथ / (Appellant) तयथ
् / (Respondent)
Assessee by : Shri A.L. Thakker, AR
Revenue by : Shri O.P. Vaishnav, CIT-DR
सन
ु वाई क तार ख/Date of Hearing : 01/03/2018
घोषणा क तार ख /Date of Pronouncement: 12 /03/2018
आदे श/O R D E R
PER RAJPAL YADAV, JUDICIAL MEMBER:
Assessee is in appeal before the Tribunal against order of ld.CIT(A)-5, Ahmedabad dated 30.3.2015 passed for Asstt.Year 2005-06.
2. Solitary grievance of the assessee is that the ld.CIT(A) has erred in confirming penalty of Rs.7.50 lakhs imposed by the AO under section 271(1)(c) of the Income Tax Act, 1961.
IT(SS)A No.160/Ahd/2015 2
3. Brief facts of the case are that search and seizure operation was carried out at the residential premises of Shri Umang Thakkar and Dharamdev Finance P.Ltd. on 9.2.2005 from where certain incriminating documents pertaining to the assessee were found and seized. These were transmitted to the AO of the assessee for initiation of action under section 153C r.w.s. 153A of the Income Tax Act. Accordingly, notice was issued and served upon the assessee. The assessee kept on avoiding these notices and failed to file return upto 28.11.2009. Summons under section 131 was issued to the Chairman of the Society and assessment machinery was put in motion. The ld.AO made two additions. He added a sum of Rs.23,86,030/- on account unaccounted cash receipts and an addition of Rs.1,91,16,119/- on account of unaccounted investment. Addition of Rs.1,91,16,119/- was deleted by the ld.CIT(A). The AO has initiated penalty proceedings and vide order dated 28.3.2012 he imposed penalty of Rs.7.50 lakhs on the addition of Rs.23,86,030- which was confirmed by the ld.CIT(A).
4. Dispute with regard to deletion and confirmation of the additions in quantum appeal travelled to the Tribunal, and the Tribunal vide order in IT(SS)A.No.273/ahd/2011 and IT(SS)A.No.274/Ahd/2011 dated 1.6.2016 dismissed the appeal of the Revenue and partly allowed appeal of the assessee. The Tribunal has deleted addition of Rs.23,86,030/-. The conclusion drawn by the Tribunal in para-14 reads as under:
"14. Therefore, we are of the view that M/s.Swaminarayan Enterprise had sufficient cash available in their books of accounts, which was in turn used to give business advances to the assessee society and, therefore, the sum of Rs.23,86,030/- should not be treated as unexplained income and, accordingly, we delete the impugned addition made by the ld.Assessing Officer and allow the ground of assessee."
IT(SS)A No.160/Ahd/2015 3
5. 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. Since basis for visiting the assessee with penalty has been extinguished by deleting addition by the Tribunal vide its order dated 1.6.2016 (supra) in the quantum appeal of the assessee, therefore impugned penalty is not sustainable, accordingly we cancel the penalty and allow appeal of the assessee.
6. In the result, appeal of the assessee is allowed.
th Order pronounced in the Court on 12 March, 2018.
Sd/- Sd/- (N.K. BILLAIYA) (RAJPAL YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER