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TMI Blog2015 (9) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Commissioner of Income tax (Appeals) has erred in confirming in the action of the assessing officer in levying penalty of Rs. 12,86,987/- u/s.271(1)(C) of the Income Tax Act, 1961. 2. It is therefore prayed that the above addition may please be deleted as learned members of the tribunal may deem it proper. 3. Appellant craves leave to add, alter or delete any ground(s) either before or in the course of the hearing of the appeal. 2. 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 by the Assessing Officer (AO in short) vide order dated 31/12/2010. During the course of assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The ld.counsel for the assessee has relied on the judgement of Hon'ble High Court of Gujarat rendered in the case of CIT vs. Whiteford India Ltd. reported at (2013) 38 tamann.com 15 (Guj.) and also the decision of Coordinate Bench of this Tribunal (ITAT "B" Bench Ahmedabad) rendered in the case of Shri Rustom Sorab Medora vs. ITO in ITA No.2283/Ahd/2012 for AY 2008-09, dated 11/07/2014. The ld.counsel for the assessee submitted that in quantum proceedings, the Tribunal was pleased to restrict the addition to the extent of Rs. 14,19,919.88, however, the penalty has been imposed on the entire addition. 4. On the contrary, ld.Sr.DR vehemently opposed the submissions of the ld.counsel for the assessee and submitted that there is no dispute w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. There is no such provision for levying penalty for the default as mention by AO in para 7. The attention is drawn to Gujarat High Court decision in CIT vs White Ford 38 Taxman. Com 15, which has followed by Ahmedabad Tribunal in ITA No.2283/A/2012 dated 11.07.2014 in the case of Shri Rustam Sorab in page 4, para 4. Therefore, there should be specific default either inaccurate particulars or concealment of income and it cannot be both. 2. The AO has passed the order and as per the same addition u/s.69A Rs. 37,75,000/- made on account of one bank account not disclosed in the return. The assessee has made submission before AO as per P.B. Page 1 and 2 in which it was stated that, there was loss of Rs. 56,99,475/- in the said bank account a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngly presumed that, there is no evidence that, assessee has actually incurred loss in spite of the fact that, assessee has given all the invoices/statements and address as well as PAN as per P.B. Page 6 to 194. Therefore, this finding of ITAT is factually incorrect. The order of ITAT is at Page 251 to 255. Before ITAT the case laws of Gujarat High Court in Shilpa Dying was cited and copy was also filed in which it is held that, unaccounted stock found during survey can be set off against loss of current year. This decision is also not been considered by the Hon'ble ITAT otherwise there would not been any addition since loss has been incurred. 4. The Hon'ble Ahmedabad bench in a judgment dated 21.06.2013, upon identical circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unaccounted sales, which is confirmed by Tribunal by applying G.P. rate, it is held that, there is no question of any penalty. This is as per P.B. Page 199. 8. AS REGARDS CASE LAWS IN REFERENCE TO CONTENTION THAT, PENALTY AND QUANTAM PROCEEDINGS ARE SEPARATE. In this connection following judgments are relevant. - 265 ITR 25 (Cal) Durga Kamal Rice Mill - 249 ITR 125 (Guj) National Textile - 278 ITR 354 (All) Mata Pasand - 221 ITR 661 (Guj) Baroda Tin Works 8.1 Learned Tribunal has applied peak amount and also G.P. rate without giving reference to and without supporting any judgment of Gujarat High Court or Supreme Court, on the contrary, Ahmedabad bench itself has in a judgment dated 21.06.2013, P.B. Page 259 to 263, para 13 has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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