Income Tax Appellate Tribunal - Ahmedabad
Kesharbhai Ghamarbhai Chaudhary, ... vs Assessee on 24 July, 2012
आयकर अपीलीय अिधकरण,
अिधकरण, अहमदाबाद Ûयायपीठ 'बी
बी'
बी अहमदाबाद ।
IN THE INCOME TAX APPELLATE TRIBUNAL
" B " BENCH, AHMEDABAD
सव[ौी मुकुल कुमार ौावत, Ûयाियक सदःय एवं ौी अिनल चतुवद
ȶ ȣ, लेखा सदःय के सम¢ ।
BEFORE SHRI MUKUL Kr.SHRAWAT, JUDICIAL MEMBER And
SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER
आयकर अपील सं./I.T.A. No.2626/Ahd/2010
( िनधा[रण वष[ / Assessment Year : 2006-07)
Kesharbhai बनाम/ Shri M.J. Rana
G.Chaudhary Vs. Income Tax Officer
23, Gulab Nagar Dairy Ward-1
Road Palanpur
Palanpur - 385 001
ःथायी ले खा सं . /जीआइआर सं . / PAN/GIR No. : ABUPC 4055 G
(अपीलाथȸ /Appellant) .. (ू×यथȸ / Respondent)
अपीलाथȸ ओर से / Appellant by : Shri Manish J.Shah
ू×यथȸ कȧ ओर से/Respondent by : Shri S.S. Jha, Sr. D.R.
सुनवाई कȧ तारȣख / Date of Hearing : 24/07/2012
घोषणा कȧ तारȣख /Date of Pronouncement : 27/7/12
आदे श / O R D E R
PER SHRI MUKUL Kr. SHRAWAT, JUDICIAL MEMBER :
This is an appeal at the behest of the Assessee which has emanated from the order of Learned CIT(Appeals)-XV, Ahmedabad dated 25/06/2010 and the only grievance is in respect of confirmation of penalty levied u/s.271(1)(c) of Rs.81,288/-.
2. Facts in brief as emerged from the corresponding penalty order passed u/s.271(1)(c) of the I.T.Act dated 26/3/2010 and the assessment ITA No.2626/Ahd/2010 Kesharbhai G.Chaudhary vs. ITO Asst.Year - 2006-07 -2- order made u/s.143(3) of the I.T.Act dated 19/02/2008 were that the assessee-individual is in the business of transportation of milk. In the impugned assessment order, following additions have bee made.
s.No. Details in respect of which Amount of addition in
Addition is made Rs.
1. In respect of cash purchase of 3,00,000/-
diesel
2. In respect of repairing expenses 1,00,000/-
3. In respect of tyre purchase 25,000/-
4. In respect of vehicle rent 2,65,644/-
3. The matter was carried upto the second stage of appeal and Respected ITAT "B" Bench Ahmedabad vide an order dated 28/01/2011 bearing ITA No.1402/Ahd/2009 (A.Y. 2006-07) titled as "Kesharbhai Ghamarbhai Chaudhary vs. ITO has finally held as under:-
"4. We have carefully considered the arguments of both the sides and perused the material placed before us. It is not in dispute that the assessee was plying the goods carriage which were four. Therefore, the number of goods carriages plied by the assessee was well within the ambit of the section 44AE. The Assessing Officer has rejected the book result and has estimated the income by making various disallowance out of the expenses claimed by the assessee. He also enhanced the receipt shown by the assessee. The estimated disallowance made by the AO were partly reduced by the CIT(A). Therefore, undisputedly, in the assessee's case, the actual dispute is only with regard to estimation of the income from trucks plying business. In our opinion, when the Legislature has provided some formula for estimation of income in the case of a transporter, who owns less than ten goods carriages, there would not be any justification for not estimating the income of the assessee as per the formula prescribed in section 44AE. It is irrelevant whether the revised return furnished by the assessee is ITA No.2626/Ahd/2010 Kesharbhai G.Chaudhary vs. ITO Asst.Year - 2006-07 -3- valid or not. When the question of estimation of the income of a transporter comes, Section 44AE is a good guideline in the case of transporter who owns less than ten goods carriage. In view of the above, we direct the AO to determine the income of the assessee as per the section 44AE of the IT Act."
4. After hearing the submissions of both the sides, we are of the view that the Tribunal has altered the very basis of the addition as made by the Assessing Officer and thereupon levied the concealment penalty. The Respected Tribunal has directed the Assessing Officer to determine the income of the assessee as per the provisions of section 44AE of the I.T.Act as is evident from the paragraph reproduced hereinabove. Since the very basis of levy of penalty got altered by the Tribunal, therefore the totality of the circumstances demands that in consequence thereupon the concealment penalty should not stand any more in the eyes of law. We order accordingly.
5. In the result, assessee's appeal is allowed.
Sd/- Sd/-
( अिनल चतुवद
ȶ ȣ) ( मुकुल कुमार ौावत )
लेखा सदःय Ûयाियक सदःय
( ANIL CHATURVEDI ) ( MUKUL Kr. SHRAWAT )
ACCOUNTANT MEMBER JUDICIAL MEMBER
Ahmedabad; Dated 27/ 7 /2012
टȣ.सी.नायर, व.िन.स./T.C. NAIR, Sr. PS
ITA No.2626/Ahd/2010
Kesharbhai G.Chaudhary vs. ITO
Asst.Year - 2006-07
-4-
आदे श कȧ ूितिलǒप अमेǒषत/Copy
षत of the Order forwarded to :
1. अपीलाथȸ / The Appellant
2. ू×यथȸ / The Respondent.
3. संबंिधत आयकर आयुƠ / Concerned CIT
4. आयकर आयुƠ(अपील) / The CIT(A)-XV, Ahmedabad
5. ǒवभागीय ूितिनिध, आयकर अपीलीय अिधकरण, अहमदाबाद / DR, ITAT, Ahmedabad
6. गाड[ फाईल / Guard file.
आदे शानुसार/ BY ORDER, स×याǒपत ूित //True Copy// उप/सहायक पंजीकार (Dy./Asstt.Registrar) उप/ आयकर अपीलीय अिधकरण, अिधकरण, अहमदाबाद / ITAT, Ahmedabad
1. Date of dictation.........24.7.12 (dictation-pad 3 pages attached)
2. Date on which the typed draft is placed before the Dictating Member 25.7.12.................. 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.........27.7.12
6. Date on which the file goes to the Bench Clerk..................... 27.7.12
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..................