Bhupendra I.Jogiwala, Surat vs Department Of Income Tax

सम ी जी.डी.अ वाल, उपा य (अहम. े ) एवं ी कुल भारत, या यक सद य । BEFORE SHRI BEFORE SHRI G.D. AGARWAL,VICE PRESIDENT (AZ) And SHRI KUL BHARAT, JUDICIAL MEMBER

आयकर अपील सं./I.T.A. No.671/Ahd/2012 ( नधा रण वष / Assessment Year : 2005-06) Income -tax Officer बनाम/ Shri Bhupendra I.Jogiwala Ward-9(1) Vs. 20, Ambica Park Society Surat Nr.Shraddha Society Sumul Dairy Road Surat - 395 006 थायी ले खा सं . /जीआइआर सं . / PAN/GIR No. : AAQPJ 7144 L (अपीलाथ( /Appellant) .. ()*यथ( / Respondent)

अपीलाथ( ओर से / Appellant by : Shri Nimesh Yadav, Sr.DR )*यथ( क, ओर से/Respondent by : Shri Mohit Balani, AR

ु वाई क, तार/ख / सन Date of Hearing 29/05/2015 घोषणा क, तार/ख /Date of Pronounce ment 05/06/2015

आदे श / O R D E R

PER SHRI KUL BHARAT, JUDICIAL MEMBER :

This appeal by the Revenue is directed against the order of the Ld.Commissioner of Income Tax(Appeals)-V, Surat ('CIT(A)' in short) dated 28/11/2011 pertaining to Assessment Year (AY) 2005-06. The Revenue has raised the following grounds of appeal:-

ITA No.671/Ahd/2012 ITO vs. Shri Bhupendra I.Jogiwala Asst.Year - 2005-06 -2-

[1] On the facts and in the circumstances of the case and in Law the CIT(A) has erred in deleting the penalty of Rs.3,13,386/- levied u/s.271(1)(c) of the Act.

[2] On the facts and in the circumstances of the case and in law, the CIT(A) ought to have upheld the order of the assessing officer.

[3] It is, therefore, prayed that the appellate order of the CIT(A) may be cancelled and the order of the A.O. may be upheld.

2. At the outset, ld.Sr.DR submitted that in quantum proceedings, the Coordinate Bench (ITAT "A" Bench Ahmedabad) in ITA No.764/Ahd/2010 for AY 2005-06 vide order dated 09/05/2013 has restored the issue of quantum addition to the file of ld.CIT(A) for fresh decision.

3. Briefly stated facts are that the case of the assessee was picked up for scrutiny assessment and the assessment u/s.143(3) of the Income Tax Act,1961 (hereinafter referred to as "the Act") was framed vide order dated 28/12/2007, thereby the Assessing Officer (AO in short) made disallowance of Rs.9,28,407/- claimed to have been paid commission to M/s.Nova Dyestuff Inds.P.Ltd. The AO also initiated penalty proceedings u/s.271(1)(c) of the Act. Subsequently, penalty of Rs.3,16,383/- was imposed vide order dated 25/03/2011. Against the said order, the assessee filed an appeal before the ld.CIT(A), who after considering the submissions of the assessee deleted the penalty.

ITA No.671/Ahd/2012 ITO vs. Shri Bhupendra I.Jogiwala Asst.Year - 2005-06 -3-

Aggrieved by the order of the ld.CIT(A) now the Revenue is in appeal before us.

4. The ld.Sr.DR supported the order of the AO and submitted that the ld.CIT(A) was not justified in deleting the addition.

4.1. On the contrary, ld.counsel for the assessee supported the order of the ld.CIT(A) and submitted that the issue regarding disallowance of commission paid of Rs.9,28,407/- travelled upto the stage of Tribunal in quantum proceedings by way of ITA No.764/Ahd/2010 for AY 2005-06 and the Tribunal vide order dated 09/05/2013 was pleased to restore the issue to the file of ld.CIT(A) for decision afresh.

5. We have heard the rival submissions, perused the material available on record and gone through the orders of the authorities below. We find that in quantum proceedings, the Coordinate Bench in ITA No.764/Ahd/2010 has restored the issue of quantum addition to the file of ld.CIT(A) for decision afresh. Under these facts, we deem it proper to set aside the order of the ld.CIT(A) in the penalty proceedings as well to the file of ld.CIT(A) to decide the same afresh after providing opportunity of hearing to both the parties. Thus, ground No.1 of Revenue's appeal is allowed for statistical purposes.

ITA No.671/Ahd/2012 ITO vs. Shri Bhupendra I.Jogiwala Asst.Year - 2005-06 -4-

6. Ground Nos.2 & 3 are general in nature which require no independent adjudication.

7. In the result, Revenue's appeal is dismissed.

Order pronounced in the Court on Friday, the 5th day of June, 2015 at Ahmedabad.

Sd/- Sd/- (जी.डी.अ वाल) (कुल भारत) उपा य (अहम. े ) या यक सद य ( G.D. AGARWAL ) ( KUL BHARAT ) VICE PRESIDENT (AZ) JUDICIAL MEMBER Ahmedabad; Dated 5/ 06 /2015 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. संब8ं धत आयकर आय:

ु त / Concerned CIT

4. आयकर आय:

ु त(अपील) / The CIT(A)-V, Surat

5. ;वभागीय ) त न8ध, आयकर अपील/य अ8धकरण, अहमदाबाद / DR, ITAT, Ahmedabad

6. गाड= फाईल / Guard file.

आदे शानुसार/ BY ORDER,

स*या;पत ) त //True Copy// उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील य अ धकरण, अहमदाबाद / ITAT, Ahmedabad

1. Date of dictation .. 03.6.15 (dictation-pad 4+pages attached at the end of this File)

2. Date on which the typed draft is placed before the Dictating Member ..3.6.15

3. Other Member...

4. Date on which the approved draft comes to the Sr.P.S./P.S.................

5. Date on which the fair order is placed before the Dictating Member for pronouncement......

6. Date on which the fair order comes back to the Sr.P.S./P.S......5.6.15

7. Date on which the file goes to the Bench Clerk.....................5.6.15

8. Date on which the file goes to the Head Clerk..........................................

9. The date on which the file goes to the Assistant Registrar for signature on the order..........................

10. Date of Despatch of the Order..................