Shri Kantilal Surajmal Kodia, Dahod V. The Income tax Officer,Ward-1, Dahod

ITA 1330/AHD/2009

• Counselvise Citation: 133020514 RSA 2009
• Duration Of Justice: 3 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-07-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 11-06-2012
• Assessment Year: 1995-1996
• Appeal Filed On: 23-04-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL KUMAR SRDR
• Keywords: Unexplained cash credit; Opportunity of being heard
• Section: 142(1); 133A; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A AHMEDABAD BEFORE SHRI, A.K.GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.1022,1330 & 1023/AHD/2009 ASSESSMENT YEAR:1995-96 & 1996-97 KANATILAL SURAJMAL KODIA, OPP. MAYA TALKIES, DAHOD SATION ROAD, DAHOD PAN NO.AFXPX7481E V/S . INCOME TAX OFFICER, WARD-1, DAHOD (APPELLANT) .. (RESPONDENT) /BY APPELLANT SHRI SAKAR SHARMA, AR /BY RESPONDENT SHRI RAHUL KUMAR, SR-DR /DATE OF HEARING 11-06-2012 /DATE OF PRONOUNCEMENT 20-07-2012 O R D E R PER KUL BHARAT, JUDICIAL MEMBER:- THESE THREE APPEALS BY THE ASSESSEE ARE DIRECTED A GAINST THE DIFFERENT ORDERS OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)- II, BARODA OF DIFFERENT DATED I.E., 19-01-2009 AND 29-06-2007 PERTAINING TO ASSESSMENT YEARS 1995- 96 AND 1996-97. FIRST WE TAKE UP ASSESSEES APPEAL IN ITA NO.1023/A HD/2009 FOR A.Y. 96-97. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. LD. CIT(A) ERRED ON FACTS AND IN LAW IN CONFIRM ING ADDITION OF RS.35,000/- ON ACCOUNT OF SALE OF ORNAMENTS OUT OF MONEY LENDING BUSINESS. ITA NO.1022, 1030 & 1023/AHD/2009 A.YS. 95-96 & 96-97 KANTILAL S KODIA V. ITO WD-1 DOD PAGE 2 2. THE LD. CIT(A) ERRED ON FACTS AND IN LAW IN CONF IRMING ADDITION OF RS.1,10,240/- ON ACCOUNT OF ALLEGED UNACCOUNTED CA SH FOUND AT THE TIME OF SURVEY. 3. THE LD. CIT(A) ERRED ON FACTS AND IN LAW IN CONF IRMING ADDITION OF RS.7,55,800/- ON ACCOUNT OF ALLEGED EXCESS STOCK ON THE DATE OF SURVEY. 3. THE ASSESSEE IS ENGAGED IN BUSINESS OF PURCHASE AND SALE OF SILVER ORNAMENTS AND ALSO UNDERTAKING THE WORK OF PREPARAT ION OF ORNAMENTS OF SILVER ON JOB-WORK BASIS. THAT ON 22-03-1995 THE POLICE OF DAHOD DETAINED A JEEP CAR BEARING NO. MQU-8181 AT PADAV CIRCLE AND FOUND FOUR SEPARATE BAGS IN CONCEALED CONDITION THE SILVER WEIGHING 90-027 KG. VALUED AT RS.5.30 WITHOUT ANY PURCHASE BILLS / VOUCHERS OR ANY OTHER CORROBOR ATIVE EVIDENCE FOR GENUINE HOLDING OF THE SAID SILVER AND PRODUCED BEFORE POLI CE AUTHORITY. SUBSEQUENTLY, THREE PERSONS INCLUDING THE ASSESSEE CLAIMED OWNERS HIP OF SILVER. FURTHER, A SURVEY U/S./ 133A OF THE INCOME-TAX ACT, 1961 (HERE INAFTER REFERRED TO AS THE ACT) WAS CARRIED OUT BY THE ADIT (INV.) BARODA ON 16-06-1995. AS A RESULT, THEREOF THE EXCESS STOCK OF SILVER TO THE EXTENT OF 102.886 KG. WAS DETECTED OVER AND ABOVE OTHER IRREGULARITIES. IT WAS ALSO NO TICED THAT THE ASSESSEE IS CARRYING ON UNACCOUNTED MONEY LENDING BUSINESS AND TRADING OF SILVER BARS. THE ORDER U/S 144 OF THE ACT WAS PASSED ON 09-12-19 98 PERTAINING TO A.Y. 1996-97 DETERMINING TOTAL INCOME AT RS.15,31,040/-. AGAINST THIS ORDER, ASSESSEE FIELD APPEAL BEFORE LD. CIT(A) WHO AFTER C ONSIDERING THE SUBMISSIONS OF ASSESSEE GRANTED PARTLY RELIEF OF RS .6,23,218/-. 4. AGAINST THE ORDER OF LD. CIT(A) BOTH THE ASSESSE E AND REVENUE FILED APPEAL BEFORE ITAT AHMEDABAD VIDE MA NO.76 & 77/AHD /2006 DATED 21-04- 2006 (ARISING OUT ITA NO. 347/AHD/2003 AND 4081/AHD /2002 ORDER DATED 09- 06-2005) DIRECTED THE ASSESSING OFFICER TO DECIDE T HE MATTER AFRESH ON ALL ISSUES AFTER PROVIDING REASONABLE OPPORTUNITY OF HE ARING TO THE ASSESSEE. ACCORDINGLY, IN VIEW OF THE DIRECTION OF HONBLE IT AT AHMEDABAD, SEVERAL NOTICES U/S. 142(1) WERE ISSUED I.E. ON 12-01-2007, 08-06-2007, 02-07-2007, ITA NO.1022, 1030 & 1023/AHD/2009 A.YS. 95-96 & 96-97 KANTILAL S KODIA V. ITO WD-1 DOD PAGE 3 18-07-2007 AND 17-08-2007 AND ASSESSEE WAS ASKED TO FURNISH MATERIAL EVIDENCE IN THIS REGARD. BUT THE ASSESSEE DID NOT S UBMIT ANY REPLY OR ANY SUB MISSIONS IN RESPONSE THERETO OF THE ABOVE NOTICES. IT WAS BROUGHT TO NOTICE OF ASSESSEE THAT ASSESSING OFFICER PROPOSED TO PASS EX PARTE ORDER U/S. 144 R.W.S. 254 OF THE ACT RESTORING ALL THE ADDITIONS M ADE AS PER ORIGINAL ORDER U/S 144 DATED 09-12-1998. BUT THE ASSESSEE DID NOT RESP OND. AGAIN AO ISSUED NOTICE U/S. 142(1) DATED 17-08-2007 BUT THE ASSESSE E DID NOT COMPLY WITH THE SAID NOTICE. IT IS PRESUMED THAT ASSESSEE HAS NO OB JECTION IF ORDER U/S 144 IS PASSED AS INTIMATED TO ASSESSEE. AS THE ASSESSEE DI D NOT MAKE ANY SUBMISSION AND DID NOT RESPOND TO THE NOTICES OF TH E REVENUE, THE ASSESSEE WAS COMPLETED U/S. 144 R.W.S. 254 OF THE ACT DETERM INING INCOME AS UNDER:- I) INCOME FROM TRADING SILVER AND GOLD ORNAMENT AN D LABOUR WORK RECEIPT RS.2,50,000 II) INCOME FROM MONEY LENDING BUSINESS RS.1,80,0 00 III) INCOME FROM UNACCOUNTED SILVER BAR TRADING BU SINESS RS.2,00,000 IV) INCOME FROM SALE OF ORNAMENT OUT OF MONEY LENDING BUSINESS RS. 35,000 V) UNACCOUNTED CASH U/S. 69A ON DATE OF SURVEY RS .1,10,240 VI) EXCESS STOCK OF SILVER U/S.69A ON DATE OF SURV EY RS.7,55,800 RS.15,31,040 5. FIRST GROUND IS WITH REGARD TO CONFIRMATION OF A DDITION OF RS.35,000/- ON ACCOUNT OF SALE FOR ORNAMENT OUT OF MONEY LENDING B USINESS. LD. AR OF THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER AS WE LL AS LD. CIT(A) ERRED IN MAKING THE ADDITION ON ACCOUNT OF SALE OF ORNAMENTS OUT OF MONEY LENDING. ON THE CONTRARY, LD. DR OF THE REVENUE SUPPORTED THE O RDERS OF AUTHORITIES BELOW. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT ASSESSING OFFICER OBSERVED THAT THE ASSESSEE IS IN THE BUSINESS OF MONEY LENDING SINCE LONG TIME AND HE GAVE LOAN ON THE BASIS OF GOLD/SILVER ORNAMENTS MORTGAGE D BY THE BORROWERS. SOMETIMES, THE BORROWER UNABLE TO PAY THE PRINCIPAL AMOUNT OF SAID LOAN, ITA NO.1022, 1030 & 1023/AHD/2009 A.YS. 95-96 & 96-97 KANTILAL S KODIA V. ITO WD-1 DOD PAGE 4 THEREFORE THE ASSESSEE BECAME THE OWNER OF THE SAID MORTGAGED ORNAMENTS BY WAY OF WHICH SAID ORNAMENTS SOLD IN DUE COURSE T HE ASSESSEE EARNED PROFIT. LD. CIT(A) HAS DECIDED THIS ISSUE IN PARA-7 .1 TO 7.4 OF HIS, WHICH IS REPRODUCED HEREINBELOW:- 7.1 THE ASSESSEE IS IN MONEY LENDING BUSINESS AND AGAINST LOANS, ORNAMENTS ARE PAWNED AND ON NON REPAYMENT OF MONEY LENDER SELLS THE ORNAMENTS AND GENERATES PROFIT. THE THEN ASSESSING OFFICER DETERMINED INCOME UNDER THIS HEAD AT RS.35,000/-. THE LEARNED CIT(A) HOWEVER, GRANTED A RELIEF OF RS.35,000/-. IN SET ASIDE PROCE EDINGS, IN THE ABSENCE OF ANY SUBMISSION, THE AMOUNT WAS ADDED TO TOTAL IN COME. 7.2 IN APPEAL, IT IS ARGUED THAT THE ADDITION WAS D ELETED BY CIT(A) IN THE FIRST ROUND OF APPELLATE PROCEEDINGS AND SO THE ADD ITION BE DELETED. 7.3 I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CA SE AND THE SUBMISSIONS OF THE APPELLANT. IT IS OBSERVED HAT HO NBLE ITAT FOR A.Y. 1995-96 ON SIMILAR ISSUE HAD HELD THAT THE CIT(A) H AD WRONGLY DELETED THE ADDITION AND THE MATTER WAS RESTORED TO THE FIL E OF THE A.O FOR PROVIDING THE TELESCOPING BENEFITS AGAINST THE ADDI TION SUSTAINED. CONSIDERING THE FACT THAT IN RESPECT OF GROUND NO.2 ABOVE, THE ADDITION RELATING TO UNACCOUNTED ADVANCES AGAINST PAWNED ITE MS WAS DELETED, THE ADDITION OF RS.35,000/- IS THUS SUSTAINED. GROU ND NO.4 IS REJECTED. FROM THE ABOVE, WE FIND NO INFIRMITY INTO THE ORDER PASSED BY LD. CIT(A) AND THIS GROUND OF ASSESSEES APPEAL IS REJECTED. 7. NEXT GROUND IS WITH REGARD TO ALLEGED UNACCOUNTE D CASH FOUND AT THE TIME OF SURVEY. 8. THE LD. AR SUBMITTED THAT CASH WAS FOUND DURING THE SURVEY PROCEEDINGS IN THE FORM OF CASH. IT WAS NOT FOUND T HAT CASH WAS INVESTED IN THE STOCKS. ON THE CONTRARY, LD. DR STRONGLY SUPPORTED THE ORDERS OF AUTHORITIES BELOW. 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT LD. CIT(A) HAS DE CIDED THIS ISSUE IN PARA-8.1 TO 8.3 OF HIS WHICH, WHICH IS REPRODUCED HEREINBELO W:- ITA NO.1022, 1030 & 1023/AHD/2009 A.YS. 95-96 & 96-97 KANTILAL S KODIA V. ITO WD-1 DOD PAGE 5 8.1 AT THE TIME OF SURVEY CONDUCTED ON 16-05-1995, UNACCOUNTED CASH OF RS.1,10,240/- WAS FOUND FROM THE PREMISES OF ASS ESSEE. IN REPLY TO QUESTION NO. 17 RECORDED AT THE TIME OF SURVEY, THE ASSESSEE HAD ADMITTED THAT NO CASH BOOK WAS WRITTEN AND THE CASH OF RS.1,10,240/- WAS INCLUSIVE OF CASH FROM UNACCOUNTED BUSINESS IN SILVER AND GOLD ORNAMENTS ETC. THE ASSESSING OFFICER ADDED RS.1,10, 240/- U/S. 69A OF THE ACT. THE LEARNED CIT(A) HAD ALSO CONFIRMED THE ADDITION UNDER THIS HEAD. IN SET-ASIDE PROCEEDINGS, THE ADDITION WAS AG AIN MADE. 8.2 IN APPEAL, IT IS CONTENDED THAT INCOME GENERATE D BY THE ASSESSEE FROM MONEY LENDING BUSINESS AND SILVER ORNAMENTS WA S FOUND IN THE FORM OF CASH AT THE TIME OF SURVEY AND SAME WAS ADD ED BY AO IN EARLIER GROUNDS AND IT WAS NOT FOUND THAT THE UNACCOUNTED I NCOME WAS INVESTED IN SAME ASSETS SO THERE IS NO JUSTIFICATIO N FOR THE ADDITION IN THE FORM OF CASH FOUND. 8.3 I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE APPELLANT. SINCE THE BOOKS OF ACCOUNT WERE NOT PRODUCED BEFORE THE A O AT THE TIME OF SURVEY AND THE CASH IS FOUND AT THE BEGINNING OF YE AR AND THAT SUBSEQUENTLY AND THE APPELLANT HAS FAILED TO EXPLAI N THE SOURCE OF CASH FOUND, THE AO WAS THUS JUSTIFIED IN TREATING THE CA SH OF RS.1,10,240/- AS UNEXPLAINED AND THE ADDITION IS THEREFORE CONFIRMED . FROM THE ABOVE FACT, WE FIND NO REASON TO INTERFERE INTO THE ORDER PASSED BY LD. CIT(A) AND THIS GROUND OF ASSESSEES APPEAL IS REJECTED. 10. LAST GROUND IS WITH REGARD TO RS.7,55,800/- ON ACCOUNT OF ALLEGED STOCK ON THE DATE OF SURVEY. LD. AR OF THE ASSESSEE SUBMI TTED THAT THERE WAS NO SPECIFIC QUESTION ASKED ABOUT THE EXCESS STOCK OF S ILVER WEIGHING 102.886 KG. HE FURTHER SUBMITTED THAT THERE WAS NO ADMISSION ON THE PART OF ASSESSEE THAT THERE WAS EXCESS STOCK OF SILVER WEIGHING 102.886 K G. LD. AR SUBMITTED THAT THERE WAS NO BASIS OF HAVING STOCK OF SUCH HUGE SIL VER WEIGHING 102.886 KG. ON THE CONTRARY, LD. DR SUPPORTED THE ORDERS OF AUT HORITIES BELOW AND SUBMITTED THAT THERE IS NO INTERFERENCE INTO THE OR DER OF LD. CIT(A). 11. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECODE. WE FIND THAT LD. CIT(A) HAS DE CIDED THIS ISSUE IN PARA-9.1 TO 9.3 OF HIS ORDER, WHICH IS REPRODUCED HEREINBELO W:- ITA NO.1022, 1030 & 1023/AHD/2009 A.YS. 95-96 & 96-97 KANTILAL S KODIA V. ITO WD-1 DOD PAGE 6 9.1 AT THE TIME OF SURVEY CONDUCTED ON 16-05-1995, UNACCOUNTED EXCESS STOCK OF SILVER WEIGHING 102.886 KG VALUED A T RS.7,55,800/- WAS FOUND FROM THE PREMISES OF THE ASSESSEE. IN REPLY T O QUESTION NO 18 RECORDED AT THE TIME OF SURVEY, THE ASSESSEE HAD AD MITTED THAT THE EXCESS STOCK OF SILVER IS INCLUSIVE OF UNACCOUNTED SILVER TRADING BUSINESS. THE UNACCOUNTED STOCK WAS ADDED TO THE TO TAL INCOME. THE LEARNED CIT(A) HAD ALSO CONFIRMED THE ADDITION UNDE R THIS HEAD IN THE FIRST ROUND OF APPEAL. THE ADDITION WAS REPEATED IN SET-ASIDE PROCEEDINGS. 9.2 IN APPEAL, IT IS ARGUED THAT FROM THE QUESTION PUTFORTH BEFORE THE APPELLANT AT THE TIME OF SURVEY, THE APPELLANT HAD NOT BEEN INFORMED OF ALLEGED EXCESS STOCK OF 102.886 KGS AND THE APPELLA NT WAS ONLY ASKED TO EXPLAIN THE SILVER WEIGHING 10.820 KGS AND OTHER SILVER ORNAMENTS INCLUDING BULLION WEIGHING 157.000 KGS FOUND ON THE DATE OF SURVEY AND THAT FURTHER THE AO HAD NOT PROVIDED THE DETAILS OF WORKING OF SUCH EXCESS STOCK. IT IS THUS, STATED THAT THE ADDITION IS NOT JUSTIFIED. 9.3 I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CA SE, THE SUBMISSIONS OF THE APPELLANT. AT THE TIME OF SURVEY, IN RESPONSE T O QUESTION NO.18, IT WAS STATED BY THE APPELLANT THAT THE EXACT FIGURE O F THE STOCK COULD NOT BE PROVIDED AS THE CURRENT YEAR BOOKS WERE NOT WRIT TEN. MOREOVER, AT THE TIME OF ASSESSMENT PROCEEDINGS, NO DETAILS OR B OOKS OF ACCOUNT WERE PRODUCED. BEFORE THE CIT(A), IN THE FIRST ROUN D, THE STOCK WAS EXPLAINED AS UNDER: SALE 34,8 KG OPENING STOCK 76.3 KG CLOSING STOCK 156.97 KG PURCHASES 131.2 KG RESERVE 4.1 KG 191.7 KG 191.7 KG HOWEVER, NO DETAILS OR EVIDENCES SUCH AS BILLS, SAL E BILLS AND THE DETAILS OF CLOSING STOCK AS ON 16.05.95 COULD BE PRODUCED. ACCORDINGLY, THE EXCESS STOCK AS INDICATED BY THE AO IN THE ASSESSME NT ORDER OF 102.886 KGS AND VALUED AT RS.7,55,800/- WAS T5REATE D AS INCOME OF THE APPELLANT AND THE ADDITION WAS UPHELD BY CIT(A). BE FORE ME ALSO NO DETAILS OF THE AFORESAID WORKING COULD BE FURNISHED . ACCORDINGLY, THE ADDITION OF RS.7,55,800/- OF UNACCOUNTED STOCK IS C ONFIRMED. THUS, THE GROUND NO.6 IS DISMISSED. FROM THE AFORESAID ORDER OF LD. CIT(A), IT IS EVIDE NT THAT ASSESSEE COULD NOT PRODUCE EVIDENCES OF SUCH STOCK OF SILVER AND IN SU PPORT OF THE EXCESS STOCK FOUND AT THE TIME OF SURVEY. AFTER CONSIDERING ALL ASPECT OF THE MATTER, WE FEEL IN THE INTEREST OF JUSTICE, THIS ISSUE BE RESTORED BACK TO THE FILE OF LD. CIT(A) FOR ITA NO.1022, 1030 & 1023/AHD/2009 A.YS. 95-96 & 96-97 KANTILAL S KODIA V. ITO WD-1 DOD PAGE 7 FRESH ADJUDICATION AFTER GIVING REASONABLE OPPORTUN ITY OF HARING ASSESSEE. THIS GROUND OF ASSESSEES APPEAL IS ALLOWED FOR STATISTI CAL PURPOSES. 12. IN THE RESULT, ASSESSEES APPEAL IS PARTLY ALLO WED FOR STATISTICAL PURPOSES. 13. NOW, WE TAKE UP THE ASSESSEES APPEAL IN ITA NO .1022/AHD/2009 FOR A.Y.1995-96. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. LD. CIT(A) ERRED ON FACTS AND IN LAW IN NOT CON DONING THE DELAY IN FILING OF APPEAL ON THE GROUND THAT THE APPELLANT D ID NOT APPEARED IN SET ASIDE PROCEEDINGS AND ALSO IN APPELLATE PROCEEDINGS AGAINST ORDER PASSED U/S. 271(1)(C) OF THE ACT. THE FACTUAL POSI TION IS THAT APPELLANT HAS COME TO KNOW OF ADJUDICATION OF PENALTY APPEAL ONLY FROM THE APPELLATE ORDER SO RECEIVED. 2. THE LD. CIT(A) ERRED ON FACTS AND IN LAW IN NOT ADJUDICATING GROUND RELATING TO ADDITION OFRS.2,74,912/- ON ACCOUNT OF PURCHASE OF SILVER BARS THOUGH DETAILED EXPLANATION WAS GIVEN IN THE COURSE OF APPELLATE PROCEEDINGS ON THE SAME. 3. THE LD. CIT(A) ERRED ON FACTS AND IN LAW IN NOT ADJUDICATING GROUND RELATING TO ADDITION OF RS.8,21,000/- ON ACCOUNT OF ALLEGED INVESTMENT IN PURCHASE OF HOUSE PROPERTY THOUGH DETAILED EXPLANAT ION WAS GIVEN IN THE COURSE OF APPELLATE PROCEEDINGS ON THE SAME. 4. THE LD. CIT(A) ERRED ON FACTS AND IN LAW IN NOT ADJUDICATING GROUND RELATING TO ADDITION OF RS.1,68,250/- ON ACCOUNT OF UNEXPLAINED CASH CREDITS THOUGH DETAILED EXPLANATION WAS GIVEN IN TH E COURSE OF APPELLATE PROCEEDINGS ON THE SAME. 5. THE LD. CIT(A) ERRED ON FACTS AND IN LAW IN NOT ADJUDICATING GROUND RELATING TO ADDITION OF RS.53,400/- ON ALLEGED SALE S OF RS.5,34,000/- B ESTIMATING REASONABLE PROFIT THOUGH DETAILED EXPLAN ATION WAS GIVEN IN THE COURSE OF APPELLATE PROCEEDINGS ON THE SAME. 14. A SURVEY ACTION WAS CONDUCTED AT ASSESSEES SHO P DURING THE A.Y. 1995-96 U/S. 144 OF THE INCOME-TAX ACT, 1961 (HEREI NAFTER REFERRED TO AS THE ACT) PASSED ON 24-02-2006 BY ASSESSING OFFICER. AG AINST THIS ORDER, ASSESSEE FILED APPEAL AFTER DELAY OF 14 MONTHS AND 17 DAYS I.E., 443 DAYS BEFORE LD. CIT(A), WHO CONSIDERING THE EXPLANATION EXPLAINED BY THE ASSESSEE DISMISSED THE APPEAL OF ASSESSEE ON THE BASIS OF DE LAY IN FILING OF APPEAL. ITA NO.1022, 1030 & 1023/AHD/2009 A.YS. 95-96 & 96-97 KANTILAL S KODIA V. ITO WD-1 DOD PAGE 8 15. NOW, BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A ) ASSESSEE PREFERRED SECOND APPEAL BEFORE US. 16. LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE S UBMITTED THAT THE ASSESSEE HAS BEEN PASSING THROUGH A LOT OF PERSONAL PROBLEMS AND HIS WIFE WAS ALSO SICK DURING THAT PERIOD, FOR WHICH HE COUL D NOT FILE APPEAL IN TIME. LD. AR FURTHER SUBMITTED THAT ORDER OF LD. CIT(A) MAY B E REVERSED AND ALLOW THE APPEAL OF ASSESSEE. 17. ON THE OTHER HAND, LD. DR OF THE REVENUE SUBMIT TED THAT ORDER PASSED BY LD. CIT(A) IS JUSTIFIED AND STATED THAT ASSESSEE HIMSELF WAS NEGLIGENT NOT TO PURSUE OF HIS CASE. 18. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT LD. CIT(A) DISMIS SED THE APPEAL ONLY ON THE GROUND OF DELAY BUT LD. CIT(A) HAS NOT GIVEN ANY DE CISION ON MERIT OF THE CASE. AFTER CONSIDERING ALL ASPECTS OF THE MATER, W E FEEL THAT IN THE INTEREST OF JUSTICE, THIS APPEAL IS RESTORED BACK TO THE FILE O F LD. CIT(A) TO DECIDE AFRESH AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO ASSESSEE. THE ASSESSEE IS DIRECTED TO CO-OPERATE IN APPEAL PROCEEDINGS. 19. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 20. NOW WE TAKE UP ASSESSEES APPEAL IN ITA NO.1330 /AHD/2009 FOR A.Y. 1995-96. THE ASSESSEE HAS RAISED THE FOLLOWING GROU ND OF APPEAL:- 1. LD. CIT(A) ERRED ON FACTS AND IN LAW IN CONFIRM ING LEVY OF PENALTY U/S. 271(1)(C) OF RS.5,26,110/- BY DISMISSING THE APPEA L EX-PARTE. 21. IN THIS CASE, ASSESSEE HAS CHALLENGE THE CONFIR MATION OF LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT BY DISMISSING THE APPEAL EX PARTE. THE PENALTY UNDER DISPUTE WAS LEVIED BY THE INCOME TAX OFFICER, WARD- 1, DAHOD U/S. 271(1)(C) VIDE HIS ORDER DATED 09-06-2006. SINCE THE QUANTUM APPEAL HAS BEEN RESTORED ITA NO.1022, 1030 & 1023/AHD/2009 A.YS. 95-96 & 96-97 KANTILAL S KODIA V. ITO WD-1 DOD PAGE 9 BACK TO THE FILE OF LD. CIT(A), HENCE, THIS APPEAL IS ALSO REMITTED BACK TO THE FILE OF LD. CIT(A) FOR FRESH DECISION AFTER PROVIDI NG REASONABLE OPPORTUNITY OF BEING HEARD TO ASSESSEE. THIS GROUND OF ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 22. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 23. IN THE COMBINED RESULT, ASSESSEES APPEAL IN ITA NO .1023/AHD/2009 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES AND THAT OF OTHER APPEALS OF ASSESSEE ITA NO.1022 AND 1330/AHD/2009 ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- (A.K.GARODIA) (KUL BHARAT) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, *DKP - 20/07/2012 !'# $ % & & & & '(()*+ '(()*+ '(()*+ '(()*+ !,* !,* !,* !,* / COPY OF ORDER FORWARDED TO:- 1. !+.) /0 / APPELLANT 2. '12/0 / RESPONDENT 3. $(4 2 25 / CONCERNED CIT 4. 2 25- !+.) / CIT (A) 5. *8 9.2 '(((4, 2 !+.).2 !(4, !'# $ / DR, ITAT, AHMEDABAD 6. 9 <= > ?) / GUARD FILE. BY ORDER/ & , /TRUE COPY/ @+/' 2 + . 2 !+.).2 !(4, !'# $ % STRENGTHEN PREPARATION & DELIVERY O F ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 16/07 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE NO 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 16/07 4) DATE OF CORRECTION 17/07 ITA NO.1022, 1030 & 1023/AHD/2009 A.YS. 95-96 & 96-97 KANTILAL S KODIA V. ITO WD-1 DOD PAGE 10 5) DATE OF FURTHER CORRECTION 6) DATE OF INITIAL SIGN BY MEMBERS 18/07 7) ORDER UPLOADED ON 20/07 8) ORIGINAL DICTATION PAD-PART HAS BEEN ENCLOSED IN THE FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 20/07