Narendra Ramanlal Desai, Dist.Valsad v. The Income tax Officer,Ward-2,, Vapi

ITA 4394/AHD/2007 | 2003-2004
Pronouncement Date: 26-02-2010 | Result: Partly Allowed

Appeal Details

RSA Number 439420514 RSA 2007
Assessee PAN ABHPD0186C
Bench Ahmedabad
Appeal Number ITA 4394/AHD/2007
Duration Of Justice 2 year(s) 2 month(s) 15 day(s)
Appellant Narendra Ramanlal Desai, Dist.Valsad
Respondent The Income tax Officer,Ward-2,, Vapi
Appeal Type Income Tax Appeal
Pronouncement Date 26-02-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted A
Tribunal Order Date 26-02-2010
Date Of Final Hearing 24-02-2010
Next Hearing Date 24-02-2010
Assessment Year 2003-2004
Appeal Filed On 11-12-2007
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL : A BENCH : A HMEDABAD (BEFORE HONBLE SHRI G.D. AGRAWAL VICE-PRESIDENT(A Z) & HONBLE SHRI T.K. SHARMA J.M.) I.T.A. NO. 4394/AHD./2007 ASSESSMENT YEAR : 2003-2004 SHRI NARENDRA RAMANLAL DESAI PARDI -VS.- IN COME TAX OFFICER WARD-2 VAPI (PAN : ABHPD 0186 C) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAMESH M. UPADH YAY RESPONDENT BY : SHRI GOVIND SINGHAL S R. D.R. O R D E R PER SHRI T.K. SHARMA JUDICIAL MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE O RDER DATED 14.09.2007 OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) VALSAD CONFIRM ING THE PENALTY OF RS.2 50 000/- LEVIED BY THE A.O. UNDER SECTION 271(1)(C) OF THE INCOME T AX ACT 1961. 2. BRIEFLY STATED THE FACTS ARE THAT THE ASSESSEE H AS SHOWN AGRICULTURAL INCOME OVER AND ABOVE HIS INTEREST INCOME AND SHARE OF PROFIT FROM PARTNERSHIP FIRM. IN THE ASSESSMENT ORDER THE A.O. OBSERVED THAT OUT OF TOTAL SALE AMOUNT OF RS.1 4 00 964/- AFTER CLAIMING EXPENSES THE ASSESSEE HAS CLAIMED AGRICULTURAL INCOME OF RS.9 00 652/-. AFTER REJECTING THE DETAILS PROVIDED BY THE ASSESSEE THE ASSESSING OFFICER RELYING UPON TH E TECHNICAL DATA FROM AGRICULTURE UNIVERSITY NAVSARI AND DIRECTOR OF AGRICULTURE GUJARAT DETERM INED THE NET AGRICULTURAL INCOME OF RS.1 92 732/-. THE ASSESSING OFFICER TREATED THE BA LANCE AMOUNT CLAIMED TO BE EXEMPT AS INCOME FROM UNDISCLOSED SOURCES. THE AGRICULTURAL INCOME O F RS.9 00 620/- ALSO INCLUDES THE RECEIPTS OF RS.2 36 520/- FROM MILK BUSINESS. APART FROM THIS THE A.O. MADE THE ADDITION OF RS.84 000/- ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWALS. IN RESPECT OF BOTH THESE ADDITIONS SUBSEQUENTLY THE A.O. LEVIED THE PENALTY OF RS.2 50 000/- UNDER SECTION 2 71(1)(C) OF THE INCOME TAX ACT. 2 ITA NO. 4394/AHD/2007 3. ON APPEAL IN THE IMPUGNED ORDER THE LEARNED CO MMISSIONER OF INCOME TAX(APPEALS) CONFIRMED THE PENALTY OF RS.2 49 454/- LEVIED BY TH E A.O. UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT 1961. 4. AGGRIEVED BY THIS ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) THE ASSESSEE IS IN APPEAL BEFORE US. 5. AT THE TIME OF HEARING ON BEHALF OF ASSESSEE SH RI RAJESH M. UPAHYAY APPEARED AND CONTENDED THAT (I) ITAT A BENCH AHMEDABAD VIDE ORDER DATED 31.12.2009 IN ITA NO. 306/AHD/2007 RESTORED THE ISSUE TO THE FILE OF ASSE SSING OFFICER FOR ADJUDICATING THE STATUS OF LAND AND CATTLE; (II) CONFIRMED THE ADDITION OF RS. 84 000/- ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWAL. 5.1. THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT SINCE THE MATTER REGARDING STATUS OF LAND AND CATTLE IS RESTORED TO THE FILE OF ASSESSING OFF ICER THEREFORE PENALTY IN RESPECT OF ADDITION MADE IN RESPECT OF AGRICULTURAL INCOME BE ALSO SET ASIDE TO THE FILE OF ASSESSING OFFICER WITH THE DIRECTION THAT HE MAY CONSIDER LEVY OF PENALTY IF REQUIRES WHILE PASSING THE FRESH ORDER. IN RESPECT OF LOW HOUSEHOLD WITHDRAWAL PENALTY UNDER SECTION 271(1)(C) IS NOT LEVIABLE BECAUSE THE ASSESSING OFFICER MADE ADDITION BY ESTIMATING THE H OUSEHOLD EXPENSES. 6. SHRI GOVIND SINGHAL SR. D.R. APPEARING ON BEHAL F OF THE REVENUE SUPPORTED THE ORDER OF AUTHORITIES BELOW. HE POINTED OUT THAT THE ASSESSEE HAS HIMSELF DECLARED THE NON-AGRICULTURAL INCOME AS AGRICULTURAL INCOME AND THEREFORE THE A DDITION IS RIGHTLY MADE. IN RESPECT OF LOW HOUSEHOLD WITHDRAWAL ALSO PENALTY CAN BE IMPOSED. 7. WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF AUT HORITIES BELOW AS WELL AS THE DECISION DATED 31.12.2009 OF THIS TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO. 306/AHD/2007 FOR THE ASSESSMENT YEAR 2003-04 RELIED BY THE LD. COUNSEL O F THE ASSESSEE. IN RESPECT OF LOW HOUSEHOLD WITHDRAWAL IN OUR OPINION NO PENALTY UNDER SECTIO N 271(1)(C) IS LEVIABLE BECAUSE THE SAID ADDITION WAS MADE ON ESTIMATE BASIS. THE PENALTY IN RESPECT OF LOW HOUSEHOLD WITHDRAWAL IS HEREBY CANCELLED. IN QUANTUM APPEAL THE ITAT A BENCH AHMEDABAD V IDE ORDER DATED 31.12.2009 IN ITA NO. 306/AHD/2007 RESTORED THE ISSUE REGARDING S TATUS OF LAND AND CATTLE TO THE FILE OF 3 ITA NO. 4394/AHD/2007 ASSESSING OFFICER. THEREFORE IN OUR OPINION IT WI LL MEET THE ENDS OF JUSTICE IN CASE THE ISSUE REGARDING LEVY OF PENALTY IN RESPECT OF VARIOUS ADD ITIONS IS RESTORED TO THE FILE OF A.O. WE ACCORDINGLY SET ASIDE THE ORDER OF LEARNED COMMISSI ONER OF INCOME TAX(APPEALS) SO FAR IT RELATES TO LEVY OF PENALTY ON VARIOUS ADDITIONS OTH ER THAN LOW HOUSEHOLD WITHDRAWAL TO THE FILE OF A.O. WITH THE DIRECTION THAT HE WILL CONSIDER THE I NITIATION/ LEVY OF PENALTY AFRESH IF REQUIRES AFTER ADJUDICATING THE STATUS OF AGRICULTURAL LAND AND CATTLE AS DIRECTED BY THE TRIBUNAL VIDE ORDER DATED 31.12.2009 (SUPRA). 8. IN THE RESULT FOR STATISTICAL PURPOSES THE APP EAL OF THE ASSESSEE IS PARTLY ALLOWED. THE ORDER WAS PRONOUNCED IN THE COURT ON 26.02.201 0 SD/- SD/- (G.D. AGRAWAL) (T.K. SHARMA ) VICE-PRESIDENT (AZ) JUDICIAL MEMBER DATED : 26 / 02 / 2010 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE (2) THE DEPARTMENT. 3) CIT(A) CONCERNED (4) CIT CONCERNED (5) D.R. ITAT AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGISTRAR ITAT AHMEDABAD LAHA/SR.P.S.