Appeal details
Counselvise Citation
[2016] 133 COUNSELVISE.COM (IT) 1628 (ITAT-AHMEDABAD)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
3 year(s) 11 month(s) 17 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
18-05-2016
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
D
Next Hearing Date
29-03-2016
Assessment Year
2008-2009
Appeal Filed On
31-05-2012
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHM EDABAD , (BEFORE SHRI ANIL CHATURVEDI, A.M. & SHRI KUL BHARA T, J.M.) ( , !'# $ , ! %& ) ITA NOS. 1191 & 1193/AHD/2012 (ASSESSMENT YEAR: 2008-09) DAYALJIBHAI G. PATEL HUF G-20, NEW MADHAVPURA MARKET, NR. POLICE COMMISSIONER OFFICE, SHAHIBAUG ROAD, AHMEDABAD - 380004 PAN: AADHP4736P LABHUBEN DAYALJIBHAI PATEL G-20, NEW MADHAVPURA MARKET, NR. POLICE COMMISSIONER OFFICE, SHAHIBAUG ROAD, AHMEDABAD - 380004 PAN: AEYPP0555R VS. & VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-2, PRATYAKSH KAR BHAVAN, PANJARAPOLE, AMBAWADI, AHMEDABAD 380 015 THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-2, PRATYAKSH KAR BHAVAN, PANJARAPOLE, AMBAWADI, AHMEDABAD 380 015 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S. N. SOPARKAR, A.R. REVENUE BY : SMT. SONIA KUMAR, SR. D.R. DATE OF HEARING : 29-03-20 16 DATE OF PRONOUNCEMENT : 18 -05-2016 ( )/ ORDER ITA NOS.1191 & 1193/AHD/2012 . A.Y. 2008-09 2 PER ANIL CHATURVEDI, ACCOUNTANT MEMBER THESE TWO APPEALS FILED BY TWO DIFFERENT ASSESSEES ARE AGAINST SEPARATE ORDERS OF CIT(A)-6, AHMEDABAD, DATED 20.04.2012 FOR A.Y.2008-09. 2. BEFORE US, AT THE OUTSET, LD. A.R. SUBMITTED THA T THOUGH THE TWO APPEALS OF THE ASSESSEE PERTAIN TO DIFFERENT ASSESSEES BUT BOT H THE ASSESSEES BELONG TO SAME GROUP, THE ASSESSMENT YEAR ARE SAME AND THE ISSUES IN BOTH THE APPEALS ARE ALSO IDENTICAL AND THEREFORE THE SUBMISSION MADE BY HIM IN CASE OF ONE APPEAL, WOULD BE APPLICABLE TO THE OTHER APPEAL ALSO. LD. D.R. D ID NOT OBJECT TO THE AFORESAID SUBMISSION OF LD. A.R. WE, THEREFORE, FOR THE SAKE OF CONVENIENCE, PROCEED TO DISPOSE OF BOTH THE APPEALS BY A COMMON ORDER AND P ROCEED WITH THE FACTS OF ITA NO.1191/AHD/2012 IN CASE OF SHRI DAYALJIBHAI G. PAT EL. 3. ASSESSEE IS AN INDIVIDUAL HAVING INCOME FROM HOU SE PROPERTY, CAPITAL GAIN AND OTHER SOURCES. ASSESSEE FILED HIS RETURN OF I NCOME FOR A.Y. 2008-09 ON 18.07.2008 DECLARING TOTAL INCOME OF RS. 35,22,802/ -. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER THE ASSESSMENT WAS FRAMED U NDER SECTION 143(3) VIDE ORDER DATED 09.11.2010 AND THE TOTAL INCOME WAS DETERMINE D AT RS.44,51,373/-. AGGRIEVED BY THE ORDER OF A.O., ASSESSEE CARRIED TH E MATTER BEFORE LD. CIT(A) WHO VIDE ORDER DATED 20.04.2012 (APPEAL NO. CIT(A) VI/DCIT.CIR.2/253/10- 11) DISMISSED THE APPEAL OF ASSESSEE. AGGRIEVED BY THE AFORESAID ORDER OF LD. CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS:- 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) VI, AHMEDABAD HAS ERRED BOTH IN LAW AND ON FACTS OF THE CASE IN FRAMING APP ELLATE ORDER U/S.250 OF THE I.T. ACT FOR A.Y.2008-09 ON 20 TH DAY OF APRIL, 2012. ITA NOS.1191 & 1193/AHD/2012 . A.Y. 2008-09 3 2. THE LEARNED CIT(A) VI AHMEDABAD HAS ERRED IN DIR ECTING THE ASSESSING OFFICER TO TREAT LONG TERM CAPITAL GAIN AS SHORT TERM CAPIT AL GAIN BY VIRTUE OF CIRCULAR NO.2 OF 2002 DT. 15.02.2002 AND LETTER NO. 225 DT. 12.03.1996 ISSUED BY CBDT. 3. THE LEARNED CIT(A) VI, AHMEDABAD HAS ERRED IN CO NFIRMING THE DISALLOWANCE OF RS.39,00,000/- COMPUTED AS LONG TERM CAPITAL GAIN B Y ASSESSEE AND ASSESSED BY A.O. AS INCOME FROM OTHER SOURCES. 4. THE LD. CIT(A) VI, AHMEDABAD HAS ERRED IN NOT AD JUDICATING THE GROUND REGARDING INITIATION OF PENALTY PROCEEDINGS U/S.271 (1)(C) OF THE ACT. 4. BEFORE US, LD. A.R. SUBMITTED THAT THE SOLITARY ISSUE WHICH IS TO BE DECIDED IS WHETHER THE INCOME HAS TO BE TREATED AS CAPITAL GAI N AS CONSIDERED BY THE ASSESSEE OR AS INCOME FROM OTHER SOURCES. 4.1 DURING THE COURSE OF ASSESSMENT PROCEEDINGS, A. O. NOTICED THAT ASSESSEE IN OCTOBER 2000 HAD ACQUIRED 26000 OPTIONALLY FULLY CO NVERTIBLE PREMIUM NOTES (OFCPN) OF M/S. NIR MARKETING P. LTD. AT THE FACE V ALUE OF RS.100/- EACH. DURING THE YEAR SAME WERE RETURNED BACK AND THE ASSESSEE H AD RECEIVED RS.65 LACS AGAINST THE INITIAL INVESTMENT OF RS.26LACS AND THE DIFFERE NCE OF RS.39 LACS WAS CONSIDERED BY THE ASSESSEE AS CAPITAL GAIN. A.O. WAS OF THE V IEW THAT THE INCOME CANNOT BE CONSIDERED AS CAPITAL GAIN IN VIEW OF THE FACT THAT THE OFCPN WAS ISSUED BY A CLOSELY HELD PRIVATE COMPANY IN WHICH THE SHARES WE RE HELD BY THE FAMILY MEMBERS OF THE ASSESSEE, OFCPN WERE ISSUED TO FAMIL Y MEMBERS ONLY, THE REDEMPTION HAD TAKEN PLACE JUST TWO MONTH PRIOR TO THE DATE OF MATURITY PERIOD. HE WAS OF THE VIEW THAT THE ACT OF ASSESSEE FOR RED EEMING THE OFCPN AT A PRICE LESSER THAN THAT HE COULD HAVE GOT ON THE CONVERSIO N OF OFCPN AT THE TIME OF MATURITY WAS A COLOURABLE DEVICE WITH INTENTION TO AVOID THE PAYMENT OF TAX. HE, THEREFORE, CONSIDERED THE INCOME I.E. REDEMPTION VA LUE (-) INVESTMENT VALUE (RS.65LACS RS.26 LACS = RS.39 LACS) AS INCOME FRO M OTHER SOURCES. ITA NOS.1191 & 1193/AHD/2012 . A.Y. 2008-09 4 5. AGGRIEVED BY THE ORDER OF A.O., ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) WHO UPHELD THE ORDER OF A.O. BY HOLDING AS U NDER: 2.3 I HAVE CONSIDERED THE FACTS OF THE CASE; ASSE SSMENT ORDER AND APPELLANT'S WRITTEN SUBMISSION. ASSESSING OFFICER TREATED PROFIT FROM R EDEMPTION OF OPTIONALLY FULLY CONVERTIBLE PREMIUM NOTE (OFCPN) OF NIR MARKETING P RIVATE LTD AS INCOME FROM OTHER SOURCES AS AGAINST LONG-TERM CAPITAL GAIN DISCLOSED BY THE APPELLANT. THE BENEFIT OF INDEXING COST AND TAX RATE OF 20% WAS DENIED BY THE AO ON THE GROUND THAT THE TRANSACTION IS COLORABLE DEVICE CONSIDERING THE VAR IOUS FACTS NARRATED BY HIM. IN THIS REGARD, CIRCULAR OF THE BOARD IN THIS REGAR D WILL BE RELEVANT. THE CIRCULAR NUMBER 2 OF 2002 DATED 15-02-2002 AND LETTER NUMBER 225 DA TED 12-3-1996 ISSUED BY THE CBDT SHOW THAT ON TRANSFER OF BONDS BEFORE MATURITY, THE Y HAVE TO BE TREATED AS GIVING RISE TO CAPITAL GAINS, BUT THE PERIOD OF HOLDING OF THE BON DS IN SUCH CASES WILL BE RECKONED FROM THE DATE OF PURCHASES/SUBSCRIPTION FOR THE LAST VAL UATION DATE IN RESPECT OF WHICH THE TRANSFER HAS OFFERED INCOME TO TAX, WHICHEVER IS LA TER. SINCE SUCH PERIOD WOULD ALWAYS BE LESS THAN TWELVE MONTHS, THE CAPITAL GAINS WILL BE CHARGEABLE TO TAX AS SHORT-TERM CAPITAL GAINS. CONSIDERING THIS, THE INCOME ON OFCP N WAS TAXABLE EVERY YEAR AND ACCORDINGLY THE PERIOD OF HOLDING IN THE HANDS OF A PPELLANT IS LESS THAN 12 MONTHS. AS A RESULT OF THIS THE INCOME ON ACCOUNT OF REDEMPTION OF OFCPN IS SHORT-TERM CAPITAL GAINS AND NOT LONG-TERM AS DISCLOSED BY THE APPELLANT. SI NCE THE RATE OF TAX FOR SHORT-TERM CAPITAL GAINS AND INCOME FROM OTHER SOURCES IS SAME , THE VIEW TAKEN BY THE ASSESSING OFFICER IN TAXING THE GAIN AT MAXIMUM MARGINAL RATE IS CONFIRMED. EVEN IF THE TRANSACTIONS ARE NOT TREATED AS SHAM, THE APPELLANT IS LIABLE FOR TAX ON INCOME ON TRANSFER OF OFCPN AS SHORT-TERM CAPITAL GAINS BY VI RTUE OF THE BOARDS CIRCULAR REFERRED EARLIER. IN VIEW OF THIS, ASSESSING OFFICER IS DIR ECTED TO TREAT LONG-TERM CAPITAL GAIN DISCLOSED BY THE APPELLANT AS SHORT-TERM. 6. AGGRIEVED BY THE ORDER OF LD. CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US. 6.1 BEFORE US, LD. A.R. REITERATED THE SUBMISSIONS MADE BEFORE A.O. AND LD. CIT(A) AND FURTHER SUBMITTED THAT INSTRUMENTS I.E. OFCPNS WERE PURCHASED BY THE ASSESSEE IN 2000 AND HE HAD CONTINUED TO HOLD THIS TILL THE YEAR UNDER CONSIDERATION. HE SUBMITTED THAT THE REASON FOR UP HOLDING THE DISALLOWANCE OF A.O. BY LD. CIT(A) WAS CBDT CIRCULAR NO.2 OF 2002 D ATED 16.05.2002 AND THAT LD. CIT(A) CONSIDERED THE CIRCULAR NO.2 OF 2002 TO BE APPLICABLE TO THE PRESENT CASE. HE SUBMITTED THAT THE CIRCULAR 2 OF 2002 ISS UED BY CBDT WOULD NOT BE APPLICABLE TO THE OFCPNS BECAUSE THE ASSESSEE HAD A CQUIRED THESE OFCPNS IN 2000 I.E. PRIOR TO THE DATE OF ISSUANCE OF AFORESAI D CIRCULAR. HE SUBMITTED THAT ITA NOS.1191 & 1193/AHD/2012 . A.Y. 2008-09 5 BEFORE THE CO-ORDINATE BENCH OF TRIBUNAL IN THE CAS E OF ITO VS. M/S. KULGAM HOLDINGS P. LTD. IN ITA NOS. 3785 & 2574/MUM/2004, WHEREIN ONE OF THE GROUND RAISED WAS AS TO WHETHER THE CBDT CIRCULAR DATED 15 .02.2002 APPLIED ONLY TO THE BONDS ISSUED AFTER 15.02.2002. HE SUBMITTED THAT T HE CO-ORDINATE BENCH OF TRIBUNAL HAS HELD THAT CIRCULAR NO.2 OF 2002 OF CBD T, DATED 15.02.2002 COULD BE APPLIED ONLY TO THE CASES WHERE THE INSTRUMENTS WER E ISSUED SUBSEQUENT TO THE DATE OF ISSUE OF THE CIRCULAR AND NOT BEFORE IT. HE PLA CED ON RECORD THE COPY OF THE AFORESAID DECISION. HE FURTHER SUBMITTED THAT SIMI LAR VIEW WAS TAKEN BY THE CO- ORDINATE BENCH OF TRIBUNAL IN THE CASE OF NAVIN ASS OCIATES VS. ACIT IN ITA NO.1248/AHD/2006 & ORS., ORDER DATED 31.12.2008. H E ALSO PLACED ON RECORD THE COPY OF THE AFORESAID DECISION. HE THEREFORE SUBMI TTED THAT IN VIEW OF THE AFORESAID DECISIONS WHEREIN IT HAS BEEN HELD THAT T HE CIRCULAR NO.2 OF 2002 IS NOT APPLICABLE, THE ASSESSEES STAND OF HOLDING THE INC OME AS CAPITAL GAINS BE UPHELD. LD. D.R. ON THE OTHER HAND SUPPORTED THE ORDERS OF A.O. AND LD. CIT(A). 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESPECT TO WH ETHER THE INCOME RECEIVED BY THE ASSESSEE ON SURRENDER OF OFCPN HAS TO BE TREATED AS LONG TERM CAPITAL GAIN AS CONSIDERED BY THE ASSESSEE OR AS INCOME FROM OTHER SOURCES. WE FIND THAT LD. CIT(A) BY RELYING ON THE CIRCULAR NO.2 OF 2002 ISSU ED BY CBDT HAS HELD THAT THE INCOME ON REDEMPTION OF OFCPN HAS TO BE TAXED AS NO RMAL RATE. WE FIND THAT IDENTICAL ISSUE WAS BEFORE THE CO-ORDINATE BENCH OF TRIBUNAL IN THE CASE OF NAVIN ASSOCIATES VS. ACIT (SUPRA) AND THE ISSUE WAS DECID ED IN FAVOUR OF ASSESSEE BY HOLDING AS UNDER: 4. HAVING HEARD BOTH THE PARTIES, WE HAVE CAREFULL Y GONE THROUGH THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT SIMI LAR ISSUE CAME UP FOR DECISION BEFORE THE ITAT, AHMEDABAD (SMC BENCH) IN THE CASE OF NAMA N ASSOCIATE V. DCIT IN ITA NO.1621/AHD/2007 DT. 4.4.2008 PERTAINING TO THE ASS ESSMENT YEAR 2002-03 AND THE ITA NOS.1191 & 1193/AHD/2012 . A.Y. 2008-09 6 TRIBUNAL HAS HELD IN FAVOUR OF THE ASSESSEE. THE R ELEVANT PORTION OF THE SAID ORDER IS REPRODUCED AS UNDER: 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS AND, PERUSED THE MATERIAL ON RECORD. WE HAVE ALSO GONE THROUGH THE DECISION OF THE TRIBUNAL MUMBAI BENCH IN THE CASE OF M/S. KULGAM HOLDINGS P. LTD. (SUPRA). IN THIS CASE THE TRIBUNAL VIDE PARA-7 OF THE ORDER HAS HELD AS U NDER: 7. WE HEARD THE RIVAL SUBMISSIONS. CIRCULAR OF CB DT NO.2 OF 2002 DATED 15.02.2002 AND PRESS NOTES HAS BEEN PLACED ON RECORD BY THE ASSESSEE AT PAGE 38 TO 47 OF THE PAPER BOOK. CLAUS E 3 OF CIRCULAR NO.2 OF 2002 WHICH READS AS UNDER: 3. THE MATTER WAS NOW BEEN EXAMINED IN CONSULTATIO N WITH THE RESERVE BANK OF INDIA AND THE MINISTRY OF LAW. THE PRACTICE FOLLOWED IN SEVERAL COUNTRIES OUTSIDE INDIA HAS ALS O BEEN EXAMINED. WITH A VIEW TO REMOVE THE ANOMALIES IN TH E EXISTING SYSTEM OF TAXATION OF INCOME FROM DEEP DISCOUNT BON DS, AND TO FORMULATE A SYSTEM WHICH IS MORE IN LINE WITH INTER NATIONAL PRACTICE, THE BOARD HAVE DECIDED THAT SUCH INCOME M AY HEREAFTER HE TREATED AS FOLLOWS ' MAKES IT CLEAR THAT THE CLARIFICATION IS APPLICABLE AND COULD BE APPLIED ONLY SUBSEQUENT TO THE ISSUE OF THIS CIRCUL AR AND NOT BEFORE. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THE SUBSEQUENT YEAR, THE ASSESSEE SOLD THE BONDS AND WH ATEVER SURPLUS WAS OFFERED TO TAX AND IT WAS ACCEPTED AS W ELL. LEARNED COUNSEL AGAIN BROUGHT OUR ATTENTION TO PAGE 43 OF T HE PAPER BOOK, WHICH IS THE PRESS NOTES/RELEASE FOR TAX TREA TMENT OF DEEP DISCOUNT BONDS AND STRIPS. THIS PRESS NOTE DATED 20 TH MARCH, 2002, MAKES IT CLEAR THAT THE AMOUNT RECEIVED ON RE DEMPTION WOULD BE OFFERED TO TAX AS PER THE GUIDELINES OF TH E RBI OR A PUBLIC FINANCIAL INSTITUTION. IT IS NOT DISPUTED TH AT THE ASSESSEE HAD OFFERED IT AND ACCEPTED BY THE REVENUE. UNDER THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THERE IS NO SCOPE OF DISTURB THE ORDER OF THE LEARNED FIRST APPELLATE AUTHORITY. HENCE, THE APPEAL OF THE REVENUE FAILS AND DISMISSED. ' WE HAVE ALSO GONE THROUGH THE DECISION OF THE ITAT AHMEDABAD BENCH IN THE CASE OF KISAN DISCRETIONARY FAMILY TRUST (SUPRA). I N THIS CASE WE FIND THAT THERE IS A CLEAR CUT FINDING UNDER PARA 50(V) AT PAGE 99 OF THE ORDER THAT THE CIRCULAR NO.2 OF 2002 IS NOT APPLICABLE ONLY TO THE DDBS PUR CHASED AFTER 15/02/2002. THE LEARNED ACCOUNTANT MEMBER HAS ALSO AGREED WITH THIS FINDING OF THE LEARNED JUDICIAL MEMBER UNDER PARA 67 THAT THE CIRCULAR IS APPLICABLE ONLY TO DDBS ACQUIRED AND OR AFTER 15/02/2002. SINCE THE JUDGMEN T OF THE COORDINATE BENCH IS BINDING ON US, WE ACCORDINGLY HOLD THAT THE CIRCULA R NO. 2 OF 2002 IS APPLICABLE ONLY IN RESPECT OF DEEP DISCOUNT BONDS PURCHASED PR IOR TO 15/02/2002. SINCE THE ITA NOS.1191 & 1193/AHD/2012 . A.Y. 2008-09 7 ASSESSEE IN THIS CASE HAS PURCHASED THE STRIPS ON 2 3-02-2000 I.E. PRIOR LO 15/02/2002, THEREFORE, THE CIRCULAR NO. 2 OF 2002 I S NOT APPLICABLE IN THE CASE OF THE ASSESSEE REQUIRING THE ASSESSEE TO RETURN THE I NTEREST INCOME ON ACCRUAL BASIS. WE, THEREFORE, SET ASIDE THE ORDER OF THE CI T(A) AND DELETE THE ADDITION OF RS.2,93,823/-.' SIMILAR VIEW HAS ALSO BEEN TAKEN IN THE CASE OF ITO V. M/S. KULGAM HOLDINGS P. LTD. (SUPRA), BY THE ITAT, MUMBAI. 5. IN VIEW OF THE ABOVE, RESPECTFULLY FOLLOWING THE ABOVE DECISIONS OF THE ITAT REFERRED TO IN THE FOREGOING PARAGRAPH, WE SET ASIDE THE IMPUGN ED ORDERS OF THE AUTHORITIES BELOW AND DELETE THE IMPUGNED ADDITION IN RESPECT OF EACH ASSSSEES. 7.1 BEFORE US, REVENUE HAS NOT PLACED ANY CONTRARY BINDING DECISION NOR COULD POINT OUT ANY DISTINGUISHING FEATURE OF THE PRESENT CASE AND THAT DECIDED BY THE CO- ORDINATE BENCH REFERRED HEREINABOVE. WE ARE THEREF ORE OF THE VIEW THAT SINCE THE FACTS IN THE CASE ARE IDENTICAL TO THAT OF NAVIN AS SOCIATES VS. ACIT (SUPRA), WE THEREFORE FOLLOWING THE AFORESAID DECISIONS OF THE CO-ORDINATE BENCH IN THE CASE OF NAVIN ASSOCIATES VS. ACIT(SUPRA) AND FOR THE SIMILA R REASONS, HOLD THAT THE INCOME ON REDEMPTION OF OFCPN ARE TO BE TREATED AS LONG TERM CAPITAL GAIN. THUS, THE GROUND OF ASSESSEE IS ALLOWED. 8. IN THE RESULT, THE APPEAL FILED BY ASSESSEE IS A LLOWED. ITA NO.1193/AHD/2012 IN CASE OF LABHUBEN D. PATEL 9. THE GROUNDS RAISED BY ASSESSEE READ AS UNDER: 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) VI, AHMEDABAD HAS ERRED BOTH IN LAW AND ON FACTS OF THE CASE IN FRAMING APP ELLATE ORDER U/S.250 OF THE I.T. ACT FOR A.Y.2008-09 ON 20 TH DAY OF APRIL, 2012. 2. THE LEARNED CIT(A) VI AHMEDABAD HAS ERRED IN DIR ECTING THE ASSESSING OFFICER TO TREAT LONG TERM CAPITAL GAIN AS SHORT TERM CAPIT AL GAIN BY VIRTUE OF CIRCULAR NO.2 OF 2002 DT. 15.02.2002 AND LETTER NO. 225 DT. 12.03.1996 ISSUED BY CBDT. ITA NOS.1191 & 1193/AHD/2012 . A.Y. 2008-09 8 3. THE LEARNED CIT(A) VI, AHMEDABAD HAS ERRED IN CO NFIRMING THE DISALLOWANCE OF RS.36,00,000/- COMPUTED AS LONG TERM CAPITAL GAIN B Y ASSESSEE AND ASSESSED BY A.O. AS INCOME FROM OTHER SOURCES. 4. THE LD. CIT(A) VI, AHMEDABAD HAS ERRED IN NOT AD JUDICATING THE GROUND REGARDING INITIATION OF PENALTY PROCEEDINGS U/S.271 (1)(C) OF THE ACT. 10. IN THE PRESENT CASE, BOTH THE PARTIES HAVE ADMI TTED THAT THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE ARE IDENTICAL TO THAT OF SHRI DAYALJIBHAI G. PATEL. IN THE CASE OF DAYALJIBHAI G. PATEL IN ITA NO. 1191 /AHD/2012, WHICH WE HAVE DECIDED HEREINABOVE HAVE DECIDED THE ISSUE IN FAVOU R OF ASSESSEE. WE THEREFORE FOR THE SIMILAR REASONS STATED HEREINABOVE WHILE DECIDI NG THE APPEAL FOR A.Y. 2008-09 IN ITA NO. 1191/AHD/2012 (SUPRA) AND FOR SIMILAR RE ASONS ALLOW THE GROUND OF ASSESSEE IN THE PRESENT APPEAL. THUS, THE APPEAL OF ASSESSEE IS ALLOWED. 11. IN THE RESULT, APPEALS FILED BY BOTH ASSESSEE S ARE ALLOWED . ORDER PRONOUNCED IN OPEN COURT ON 18/05/2016 SD/- SD/- (KUL BHARAT) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 18/05/2016 S K SINHA COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER //TRUE COPY// DEPUTY/ASSTT.REGISTRAR ITAT, AHMEDABAD
