Shri Dharmesh P.Shah, Nadiad V. The ACIT.,Kheda Circle, Nadiad

ITA 1312/AHD/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 0031 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2001-2002
• Appeal Filed On: 26-04-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: K M MAHESH
• Assessee Lawyers: G C PIPARA
• Keywords: Invalid notice; Condonation of delay; Set aside
• Section: 271(1)(c); 64; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : SMC BENCH : AHMEDABA D (BEFORE HON'BLE SHRI T.K. SHARMA, JUDICIAL MEMBER ) I.T.A. NOS. 1311, 1312, 1313 & 1314/AHD./2010 ASSESSMENT YEARS : 2001-2002, 2001-2002, 2003-2004, 2003-2004 DHARMESH P. SHAH, KHEDA -VS.- ASSISTANT C OMMISSIONER OF INCOME TAX,(PAN : BLRPS 0248 F) KHEDA CIRCLE, NADIAD (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI G.C. PIPARA RESPONDENT BY : SHRI K.M. MAHESH, SR. D.R. O R D E R THE APPEALS BEING ITA NOS. 1311 & 1313/AHD/2010 FILED BY THE ASSESSEE ARE AGAINST THE ORDERS BOTH DATED 09.11.2009 OF LEARNED COMMISS IONER OF INCOME TAX (APPEALS)-IV, BARODA FOR THE ASSESSMENT YEARS 2001-02 AND 2003-04 RESPEC TIVELY ON THE FOLLOWING GROUNDS EXCEPT VARIATION IN AMOUNTS :- (1) THE IMPUGNED APPELLATE ORDER IS BAD IN LAW, THE ASS ESSMENT ORDER BEING ITSELF BAD IN LAW IN AS MUCH AS THE SAME BEIN G BASED ON INVALID NOTICE U/S. 148 OF THE ACT AS THE APPELLANT WAS A M INOR DURING THE YEAR UNDER CONSIDERATION. ACCORDINGLY, THE IMPUGNED ORDE R REQUIRES TO BE QUASHED AS VOID-AB-INITIO. (2) THE LD. CIT(A.) HAS ERRED IN LAW AND ON FACTS IN CO NFIRMING THE ACTION OF THE A.O. IN INVOKING THE PROVISIONS OF SECTION 1 47/148 OF THE ACT IN REOPENING OF THE ASSESSMENT AND SECTION 144 OF THE ACT IN PASSING THE BEST JUDGMENT ORDER KEEPING IN VIEW THE FACT THAT T HE APPELLANT BEING A MINOR DURING THE YEAR UNDER APPEAL, NEITHER THE ASS ESSMENT ORDER NOR THE APPELLATE ORDER IS VALIDLY PASSED IN CASE OF TH E APPELLANT. (3) THE APPELLANT STATES THAT THE ASSESSMENT ORDER AND THE ADDITIONS MADE THEREIN REQUIRES TO BE CONSIDERED IN THE HANDS OF A PPELLANTS FATHER SHRI PRAHLADRAY M. SHAH AS PER THE PROVISIONS OF SECTION 64(1A) OF THE ACT. (4) THE LD. CIT(A.) HAS ERRED IN LAW AND ON FACTS IN CO NFIRMING THE ADDITION OF RS.1,95,000/- (ITA NO. 1311/AHD/2010) AND RS.90, 690/- (ITA NO. 1313/AHD/2010) ON ACCOUNT OF ALLEGED INVESTMENT IN FDRS IN THE HANDS OF THE APPELLANT WHILE REJECTING THE APPELLAN TS CONTENTION THAT THE SAME REQUIRES TO BE CONSIDERED IN THE HANDS OF APPELLANTS FATHER SHRI PRAHLADRAY M. SHAH. IN VIEW OF THE FACTS OF TH E CASE, THE IMPUGNED ADDITION OF RS.1,95,000/- REQUIRES TO BE DELETED MO RE PARTICULARLY 2 ITA NOS . 1311 TO 1314/AHD/2010 KEEPING IN VIEW THE FACT THAT THE APPELLANT BEING A MINOR DURING THE YEAR IN APPEAL, THE IMPUGNED ADDITION, EVEN IF HELD AS CORRECT (WITHOUT ADMITTING) REQUIRES TO BE TAXED IN THE HANDS OF APP ELANTS FATHER SHRI PRAHLADRAY M. SHAH AND NOT THE APPELLANT. THE APPEALS BEING ITA NO. 1312 & 1314/AHD/2010 FILED BY THE ASSESSEE ARE AGAINST THE ORDERS BOTH DATED 19.11.2009 OF LEARNED COMMISSIONE R OF INCOME TAX(APPEALS)-IV, BARODA IN CONFIRMING THE PENALTY OF RS.38,025/- (ITA NO. 1312 /AHD/2010) AND RS.7,495/- (ITA NO. 1314/AHD/2010) LEVIED BY THE ASSESSING OFFICER UNDE R SECTION 271(1)(C) OF THE INCOME TAX ACT FOR THE ASSESSMENT YEARS 2001-02 & 2003-04 RESPECTI VELY. 2. ALL THESE APPEALS WERE HEARD ON THE SAME DATE, A RGUED BY COMMON LD. REPRESENTATIVE, THEREFORE, THESE ARE DECIDED BY THIS COMMON ORDER F OR THE SAKE OF CONVENIENCE. 3. ALL THESE APPEALS ARE DELAYED BY 76 DAYS, FOR WH ICH THE ASSESSEE HAS FILED AN APPLICATION DATED 24.04.2010 FOR CONDONATION OF DELAY. THE REAS ONS FOR SEEKING THE CONDONATION OF DELAY IN THE SAID APPLICATION READS AS UNDER :- REF.: APPEAL AGAINST CIT(A.)S ORDER DATED 09/11/20 09 FORAY200L-02. SUB: APPLICATION FOR CONDONATION OF DELAY IN FILI NG THE APPEAL. WITH REFERENCE TO THE CAPTIONED SUBJECT, I HAVE TO STATE THAT THE APPELLATE ORDER DATED 09/11/2010 PASSED BY THE LEARNED CIT(A)-IV, B ARODA AGAINST WHICH THE APPEAL IS BEING FLED BEFORE THE HON'BLE ITAT WAS RE CEIVED BV ME ON 08/12/2009. ACCORDINGLY, THE DUE DATE FOR FILING THE APPEAL BEF ORE THE HON'BLE ITAT WAS 08/02/2010. HOWEVER, THE SAID APPEAL COULD NOT BE F ILED WITHIN THE PRESCRIBED TIME FOR THE FOLLOWING GENUINE REASONS; 1. THAT KEEPING IN VIEW THE AMOUNT OF PENALTY U/S.271(L)(C) OF THE ACT LEVIED BY THE A,0, AND CONFIRMED BY THE CIT(A) AND ALSO CO NSIDERING THE FACT THAT I HAD NOT FILED A SECOND APPEAL AGAINST THE CIT(A)'S ORDE R DISMISSING THE QUANTUM APPEAL FOR THE ABOVE MENTIONED YEAR, INITIALLY I HA D DECIDED NOT TO FILE A SECOND APPEAL BEFORE THE HON'BLE ITAT, AHMEDABAD BENCH AGA INST THE CIT(A) R S ORDER CONFIRMING THE PENALTY U/S.271(L)(C) OF THE ACT. 2. THAT SUBSEQUENTLY DURING CERTAIN DISCUSSIO NS WITH MY CHARTERED ACCOUNTANT IN THE THIRD WEEK OF APRIL, 2010, IT CAM E TO OUR NOTICE THAT I WAS A MINOR DURING THE YEARS IN DISPUTE AS I WAS BORN ON 31/12/1983 AND HENCE BECAME A MAJOR ONLY ON 31/12/2001 I.E. DURING THE P REVIOUS YEAR RELEVANT TO A.Y.2002-03. 3 ITA NOS . 1311 TO 1314/AHD/2010 3. THAT ACCORDINGLY, I WAS GIVEN TO UNDERSTAND THAT THE ASSESSMENT AND PENALTY ORDERS PASSED IN MY NAME FOR THE YEARS DURI NG WHICH I WAS A MINOR WERE BAD IN LAW AND THE ADDITIONS MADE THEREIN WERE REQUIRED TO BE CONSIDERED IN THE HANDS OF MY FATHER SHRI PRAHLADRAY M. SHAH. AS A CONSEQUENCE, THE. APPEAL ORDERS CONFIRMING THE ADDITIONS MADE IN THE ASSESSMENT ORDERS AND THE PENALTY LEVIED BY THE A,0, ON THE SAID ADDITIONS AR E ALSO BAD IN LAW AND INVALID. 4. THAT ON GAINING KNOWLEDGE ABOUT THE ABOVE MENTIONED FACTS, I HAVE BEEN NOW ADVISED TO FILE APPEALS BEFORE THE HON'BLE ITAT , AHMEDABAD BENCH TO CORRECT THE SAID ANOMALY AND MISTAKE APPARENT FROM RECORD. 5. THAT ACCORDINGLY THE APPEALS WERE PREPARED BY MY CHARTERED ACCOUNTANT FOR A.Y,2001-02 DURING WHICH I WAS A MINOR CHALLENG ING THE VALIDITY OF THE ASSESSMENT ORDERS, PENALTY ORDERS AND THE APPELLATE ORDERS PASSED IN MY NAME FOR THE SAID YEARS. THE ITAT FEES FOR APPEAL HAVE A LSO BEEN PAID ACCORDINGLY. IN VIEW OF THE ABOVE FACTS AND BONAFIDE REASON AT M Y END, THERE HAS BEEN A GENUINE DELAY OF 76 DAYS IN FILING THE APPEAL FOR A ,Y.2001-02. THE APPEAL IS THUS FILED BEFORE THE HON'BLE 1TAT, AHMEDABAD BENCH ALON G WITH CONDONATION APPLICATION. I ACCORDINGLY HUMBLY REQUEST THE HON'B LE MEMBERS TO CONDONE THE BONAFIDE DELAY ON MY PART AND ADMIT THE APPEAL IN T HE INTEREST OF JUSTICE AND OBLIGE. LASTLY, I HAVE TO STATE AND CONFIRM THAT THE FACTS STATED HEREINABOVE ARE TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE, INFORMATION AN D BELIEF AND I BELIEVE THE SAME TO BE TRUE. 4. AT THE TIME OF HEARING BEFORE ME, SHRI G.C. PIPA RA, LD. COUNSEL APPEARING ON BEHALF OF THE ASSESSEE POINTED OUT THAT MERELY DELAY OF 76 DAYS B E CONDONED BECAUSE THE ASSESSEE WAS MINOR. THE LD. COUNSEL OF THE ASSESSEE CONTENDED THAT THE APPEALS OF THE ASSESSEE BE ADMITTED BECAUSE IT HAS OCCURRED DUE TO MISTAKEN BELIEF ON THE PART OF THE ASSESSEE. FOR THIS, HE RELIED ON THE JUDGMENT DATED 19.02.1987 OF THE HON'BLE SUPREME CO URT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS.- MST. KATIJI & ORS. IN CIVIL APPEA L NO. 460 OF 1987. 5. ON THE OTHER HAND, SHRI K.M. MAHESH, LD. SR. D.R . APPEARING ON BEHALF OF THE REVENUE OBJECTED TO THE PRAYER OF THE LD. COUNSEL OF THE AS SESSEE ON THE GROUND THAT IN CASE, THE ASSESSEE IS MINOR, THEN ASSESSEES FATHER/ NATURAL GUARDIAN SHO ULD HAVE FILED APPEALS WITHIN TIME. SINCE THIS WAS NOT DONE, ALL THE APPEALS OF THE ASSESSEE BE DI SMISSED. 4 ITA NOS . 1311 TO 1314/AHD/2010 6. AFTER HEARING BOTH THE SIDES, I HAVE CAREFULLY G ONE THROUGH THE CONTENTS OF THE APPLICATION FILED FOR CONDONATION OF DELAY AS WELL AS COPY OF S CHOOL LEAVING CERTIFICATE IN SUPPORT OF DATE OF BIRTH OF THE ASSESSEE. 6.1. UNDER SECTION 5 OF THE LIMITATION ACT OF 1963, THE TRIBUNAL MAY ADMIT AN APPEAL OR PERMIT THE FILING OF AN APPEAL AFTER THE EXPIRY OF PRESCRIBED PERIOD IF IT IS SATISFIED THAT THERE WAS SUFFICIENT CAUSE FOR NOT PRESENTING IT WITHIN THAT PERIOD. REGARDING CONTENTION OF DELAY IN FILING THE APPEAL, IT HAS BEEN HELD IN SEVERAL RECENT JUDG MENTS OF THE HON'BLE SUPREME COURT STARTING WITH MST. KATIJI, BALAKRISHNAN VS.- KRISHNAMURTHI, ETC. THAT IN THE PURSUIT OF JUSTICE, TECHNICALITIES SHOULD BE AVOIDED AND AN ATTEMPT MUS T BE MADE TO DECIDE THE SUBSTANTIVE ISSUES RAISED IN THE APPEAL. THE EXPRESSION SUFFICIENT C AUSE EMPLOYED BY THE LEGISLATURE IS ADEQUATELY ELASTIC TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SUB-SERVES THE ENDS OF JUSTICE. IN THIS JUDGMENT, THE HON'BLE SUPREME COUR T HELD AS UNDER :- (1) ORDINARILY, A LITIGANT DOES NOT STAND TO BENEF IT BY LODGING AN APPEAL LATE. (2) REFUSING TO CONDONE DELAY CAN RESULT IN A MERIT ORIOUS MATTER BEING THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTI CE BEING DEFEATED. AS AGAINST THIS, WHEN DELAY IS CONDONED, THE HIGHEST T HAT CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERITS AFTER HEARING THE PARTIES. (3)EVERY DAYS DELAY MUST BE EXPLAINED DOES NOT M EAN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOURS DELAY , EVERY SECONDS DELAY? THE DOCTRINE MUST BE APPLIED IN A RATIONAL C OMMON SENSE AND PRAGMATIC MANNER. (4) WHEN SUBSTANTIAL JUSTICE AN TECHNICAL CONSIDERA TION ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERV ES TO BE PREFERRED, FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJ USTICE BEING DONE BECAUSE OF A NON-DELIBERATE DELAY. (5) THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONE D DELIBERATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE, OR ON ACCOUNT OF MA LA FIDES. A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY. IN FACT , HE RUNS A SERIOUS RISK. (6) IT MUST BE GRASPED THAT THE JUDICIARY IS RESPEC TED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GROUNDS BU T BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. 6.2. THE HON'BLE SUPREME COURT ON 09.06.2010 IN CIV IL APPEAL NO. 2397 OF 2008 IN THE CASE OF IMPROVEMENT TRUST VS.- UJAGAR SINGH HELD THAT U NLESS, MALA FIDES ARE WRITE LARGE, THE DELAY 5 ITA NOS . 1311 TO 1314/AHD/2010 SHOULD BE CONDONED. THE MATTER SHOULD BE DISPOSED O F ON MERITS AND NOT ON TECHNICALITIES. AFTER CONSIDERING THE SUBMISSIONS MADE BY THE LD. COUNSEL OF THE ASSESSEE, PRIMA FACIE, IT APPEARS THAT DELAY HAS OCCURRED BECAUSE OF SOME MISTAKEN VIEW. A S A MATTER OF FACT, NO PRUDENT MAN WOULD FILE THE APPEAL LATE ONCE THE ORDER IS AGAINST HIM. I AM, THEREFORE, OF THE VIEW THAT THERE IS A SUFFICIENT CAUSE FOR CONDONING THE DELAY OF 76 DAYS . THE DELAY IS, THEREFORE, CONDONED AND ALL THE APPEALS OF THE ASSESSEE ARE ADMITTED. 7. ON MERIT, THE LD. COUNSEL OF THE ASSESSEE SUBMIT TED THAT THE ASSESSEE WAS A MINOR DURING THE YEAR UNDER APPEALS, THEREFORE, ISSUANCE OF NOTI CE UNDER SECTION 148 AND ASSESSMENT ORDER PASSED IS INVALID. HE SUBMITTED THAT KEEPING IN VIE W THE PROVISIONS CONTAINED IN SECTION 64 OF THE INCOME TAX ACT, THE ADDITION, IF ANY, SHOULD HAVE B EEN MADE IN THE HANDS OF ASSESSEES FATHER SHRI PRAHLADRAY M. SHAH. THEREFORE, THE ASSESSMENT FRAMED BE QUASHED. FURTHER, THE PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT BE CANCEL LED BECAUSE ASSESSMENT ORDER IS VOID-AB-INITIO. 8. ON THE OTHER HAND, THE LD. D.R. POINTED OUT THAT THE ASSESSING OFFICER FRAMED THE ASSESSMENT UNDER SECTION 144 AS THE ASSESSEE HAS NO T COOPERATED WITH THE DEPARTMENT. THE LD. D.R. FURTHER DREW MY ATTENTION TO THE PROVISIONS CO NTAINED IN PROVISO TO SECTION 64(1A) OF THE ACT, WHICH READS AS UNDER :- SEC. 64(1A) : IN COMPUTING THE TOTAL INCOME OF ANY INDIVIDUAL, THERE SHALL BE INCLUDED ALL SUCH INCOME AS ARISES OR ACCRUES TO HIS MINOR CHILD [NOT BEING A MINOR CHILD SUFFERING FROM ANY DISABILITY O F THE NATURE SPECIFIED IN SECTION 80U] : PROVIDED THAT NOTHING CONTAINED IN THIS SUB-SECTION SHALL APPLY IN RESPECT OF SUCH INCOME AS ARISES OR ACCRUES TO THE MINOR CH ILD ON ACCOUNT OF ANY (A) MANUAL WORK DONE BY HIM; OR (B) ACTIVITY INVOLVING APPLICATION OF HIS SKILL, TALENT OR SPECIALIZED KNOWLEDGE AND EXPERIENCE. EXPERIENCE FOR THE PURPOSES OF THIS SUB-SECTION, THE INCOME OF THE MINOR CHILD SHALL BE INCLUDED, - (A) WHERE THE MARRIAGE OF HIS PARENTS SUBSISTS, IN THE INCOME OF THAT PARENT WHOSE TOTAL INCOME (EXCLUDING THE INCOM E INCLUDIBLE UNDER THIS SUB-SECTION) IS GREATER; OR (B) WHERE THE MARRIAGE OF HIS PARENTS DOES NOT SUBSIST, IN THE INCOME OF THAT PARENT WHO MAINTAINS THE MINOR CHILD IN THE PREVIOUS YEAR, AND WHETHER ANY SUCH INCOME IS ONCE INCLUDED IN THE TOTAL INCOME OF EITHER PARENT, ANY SUCH INCOME ARISING IN ANY SUCCE EDING YEAR SHALL NOT BE 6 ITA NOS . 1311 TO 1314/AHD/2010 INCLUDED IN THE TOTAL INCOME OF THE OTHER PARENT, U NLESS THE ASSESSING OFFICER IS SATISFIED, AFTER GIVING THAT PARENT AN O PPORTUNITY OF BEING HEARD, THAT IT IS NECESSARY SO TO DO. THE LD. D.R. SUBMITTED THAT AS PER PROVISO TO SECTI ON 64(1A), A MINOR CAN ALSO BE ASSESSED TO TAX. THEREFORE, THE ASSESSMENT CANNOT BE QUASHED. THE LD . D.R. FURTHER POINTED OUT THAT IT NEEDS VERIFICATION AT THE END OF ASSESSING OFFICER WHETHE R THE FDRS WERE PURCHASED BY THE ASSESSEE FROM THE INCOME ON ACCOUNT OF MANUAL WORK DONE BY H IM OR ANY ACTIVITY INVOLVING APPLICATION OF HIS SKILL, TALENT OR SPECIALIZED KNOWLEDGE AND EXPE RIENCE. THEREFORE, THE ASSESSMENT CANNOT BE QUASHED. 9. IN REJOINDER, THE LD. COUNSEL OF THE ASSESSEE SU BMITTED THAT THESE FDRS WERE PURCHASED BY THE FATHER OF THE ASSESSEE. THEREFORE, PROVISO TO S ECTION 64(1A) IS INAPPLICABLE. IN CASE, THESE FDRS ARE UNEXPLAINED, IN THAT EVENT, THESE SHOULD B E CONSIDERED AS ADDITION, IF ANY, REQUIRES TO BE MADE IN THE HANDS OF ASSESSEES FATHER, NAMELY SHRI PRAHLADRAY M. SHAH. THE LD. COUNSEL FURTHER SUBMITTED THAT THESE FDRS WERE DULY CONSIDERED IN T HE HANDS OF ASSESSEES FATHER NAMELY SHRI PRAHLADRAY M. SHAH, THEREFORE, THE ADDITION CANNOT BE MADE TWICE. 10. AFTER HEARING BOTH THE SIDES, I HAVE CAREFULLY GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT NEITHER BEFORE THE ASSESSING OFFICER NOR BEFORE THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) THE ASSESSEE PO INTED OUT THAT HE IS MINOR. AS A MATTER OF FACT, THIS PLEA HAS BEEN TAKEN FOR THE FIRST TIME B EFORE THE ITAT. I ALSO FIND CONSIDERABLE FORCE IN THE SUBMISSIONS MADE BY THE LD. D.R. THAT WHETHER T HE PROVISO TO SECTION 64(1A) IS APPLICABLE TO THE ASSESSEE OR NOT NEEDS VERIFICATION AT THE END O F ASSESSING OFFICER. THEREFORE, THE ASSESSMENT FRAMED BY THE ASSESSING OFFICER CANNOT BE QUASHED. RESULTANTLY, GROUNDS NO. 1 & 2 OF ITA NOS. 1311 & 1313/AHD/2010 ARE REJECTED. 11. COMING TO THE MERIT, I AM OF THE VIEW THAT IN C ASE, FDRS WERE PURCHASED BY THE FATHER OF THE ASSESSEE, NAMELY SHRI PRAHLADRAY M. SHAH, IN TH AT EVENT, THESE SHOULD BE CONSIDERED IN THE HANDS OF HIS/ ASSESSEES FATHER NAMELY SHRI PRAHLAD RAY M. SHAH. WHETHER THESE FDRS WERE CONSIDERED IN THE HANDS OF ASSESSEES FATHER NAMELY SHRI PRAHLADRAY M. SHAH, IN THAT EVENT, IT NEEDS VERIFICATION AT THE END OF ASSESSING OFFICER. I, THEREFORE, SET ASIDE THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) AND RESTORE THE ISSUE REGARDING ADDITION OF RS.1,95,000/- 7 ITA NOS . 1311 TO 1314/AHD/2010 (ITA NO. 1311/AHD/2010) AND RS.90,690/- (ITA NO. 13 13/AHD/2010) AND TO THE FILE OF ASSESSING OFFICER WITH THE DIRECTION THAT THE ASSES SEE SHOULD FURNISH ALL THE NECESSARY EVIDENCES I.E. EVIDENCE OF MINORITY, ASSESSMENT ORDER OF HIS FATHER, WHEREIN THE FDRS OF RS.1,95,000/- (ITA NO. 1311/AHD/2010) AND RS.90,690/- (ITA NO. 1313/AH D/2010) WERE CONSIDERED AND RE- ADJUDICATE THE ADDITION OF RS.1,95,000/- (ITA NO. 1 311/AHD/2010) AND RS.90,690/- (ITA NO. 1313/AHD/2010) AFRESH AFTER GIVING OPPORTUNITY OF B EING HEARD. I ALSO DIRECT THE ASSESSEE TO COOPERATE WITH THE DEPARTMENT, FURNISH NECESSARY DE TAILS/ EVIDENCES IN SUPPORT OF THE CLAIM THAT FDRS WERE PURCHASED BY HIS FATHER, NAMELY SHRI PRAH LADRAY M. SHAH AND THESE WERE CONSIDERED IN HIS ASSESSMENT FOR THE RELEVANT ASSESSMENT YEARS UNDER CONSIDERATION. 11. COMING TO THE PENALTY LEVIED UNDER SECTION 271( 1)(C), I AM OF THE VIEW THAT SINCE THE ADDITION OF RS.1,95,000/- (ITA NO. 1311/AHD/2010) A ND RS.90,690/- (ITA NO. 1313/AHD/2010) ON WHICH PENALTY UNDER SECTION 271(1 )(C) WAS LEVIED, HAVE BEEN SET ASIDE TO THE FILE OF ASSESSING OFFICER, THE PENALTY CANNOT B E SURVIVE. THEREFORE, THE PENALTY OF RS.38,025/- (ITA NO. 1312/AHD/2010) AND RS.7,495/- (ITA NO. 131 4/AHD/2010) LEVIED ARE ALSO SET ASIDE WITH THE RIDER THAT ASSESSING OFFICER IS AT LIBERTY TO INITIATE THE SAME AFTER ADJUDICATING THE ADDITION OF RS.1,95,000/- (ITA NO. 1311/AHD/2010) A ND RS.90,690/- (ITA NO. 1313/AHD/2010), WHICH IS RESTORED TO HIS FILE (SUPR A). 12. IN THE RESULT, FOR STATISTICAL PURPOSES, ALL TH E APPEALS FILED BY THE ASSESSEE ARE PARTLY ALLOWED AS INDICATED ABOVE. THE ORDER WAS PRONOUNCED IN THE COURT ON 23.08.20 10 SD/- (T.K. SHARMA) JUD ICIAL MEMBER DATED : 23/ 08 / 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 REGI STRAR, ITAT, AHMEDABAD LAHA/SR.P.S.