Nirma Specific Trust, Ahmedabad V. The ACIT., Cent.Circle-1(1), Ahmedabad

ITA 1397/AHD/2006

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 8921 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-09-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 15-09-2009
• Assessment Year: 1992-1993
• Appeal Filed On: 29-05-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BEFORE SHRI T.K.SHARMA, JUDICIAL MEMBER AND SHRI D.C.AGRAWAL, ACCOUNTANT MEMBER DATE OF HEARING : 15.09.09 DRAFTED ON:22.09.09 APPEAL(S) BY SL. NO(S). ITA NO(S) ASSESSMENT YEAR(S) APPELLANT RESPONDENT 1. 1397/AHD/2006 1992-93 NIRMA SPECIFIC FAMILY TRUST, NIRMA HOUSE ASHRAM ROAD AHMEDABAD PAN : - THE ITO WARD-10(3) AHMEDABAD 2. 1398/AHD/2006 1992-93 -DO- -DO- 3. 1399/AHD/2006 1992-93 K.KACHARADAS PATEL SPECIFIC FAMILY TRUST, NIRMA HOUSE AHMEDABAD -DO- 4. 1400/AHD/2006 1992-93 -DO- -DO- ASSESSEES BY: SHRI S.N.SOPARKAR, ADV. REVENUE BY: SHRI GOVIND SINGHAL, DR O R D E R PER D.C.AGRAWAL , ACCOUNTANT MEMBER :- THESE TWO APPEALS ARE BY TWO DIFFERENT ASSESSEES OF THE SAME GROUP AGAINST THE ORDER OF THE LEARNED CIT(APPEALS) -XVI DATED 13/03/2006 AND 14/03/2006 PASSED FOR ASSESSMENT YEA R 1992-93. SINCE ITA NOS.1397, 1398, 1399 & 1400/AHD/2006 NIRMA SPECIFIC FAMILY TRUST VS. ITO & K.KACHARDAS PATEL VS. ITO ASST.YEAR - 1992-93 - 2 - COMMON ISSUES ARE INVOLVED IN THE SAME ASSESSMENT Y EAR, WE, FOR THE SAKE OF CONVENIENCE, DISPOSE THEM BY THIS COMMON/C ONSOLIDATED ORDER. 2. FIRST, WE TAKE UP THE ASSESSEES APPEAL, ITA NO. 1397/AHD/2006 FOR ASSESSMENT YEAR 1992-93. THE FOLLOWING GROUNDS HA VE BEEN RAISED BY THE ASSESSEE IN ITS APPEAL:- 1. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE C ASE, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS GR OSSLY ERRED IN POINTS OF LAW AND FACTS. 2. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE AP PELLANTS CASE, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEA LS) HAS GROSSLY ERRED IN CONFIRMING THE ACTION OF THE LEARN ED A.O. REGARDING ISSUE OF NOTICE U/S.148 OF I.T.ACT. 3. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE AP PELLANTS CASE, THE LEARNED COMMISSIONER OF INCOME-TAX(APPEAL S0 HAS GROSSLY ERRED IN NOT DEALING WITH OTHER GROUNDS OF APPEAL, WHICH ARE REPRODUCED HEREUNDER. GROUND NO.3 : IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE A PPELLANTS CASE, THE LEARNED A.O. HAS GROSSLY ERRED IN PASSING ORDER U/S.143(3) RWS 147 IN THE STATUS OF A.O.P. HE OUGHT TO HAVE HELD THAT THE CORRECT STATUS OF THE TRUST WAS THAT OF INDIVIDUAL. GROUND NO.4 : IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE A PPELLANTS CASE, THE ASSESSMENT ORDER PASSED U/S.143(3) RWS 147 IN T HE STATUS OF A.O.P. IS NULL AND VOID. ITA NOS.1397, 1398, 1399 & 1400/AHD/2006 NIRMA SPECIFIC FAMILY TRUST VS. ITO & K.KACHARDAS PATEL VS. ITO ASST.YEAR - 1992-93 - 3 - GROUND NO.5 : IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE A PPELLANTS CASE, THE LEARNED A.O. HAS GROSSLY ERRED IN PASSING ORDER U/S.143(3) RWS 147 OF I.T. ACT. GROUND NO.6 : IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE A PPELLANTS CASE, THE LEARNED A.O. HAS GROSSLY ERRED IN MAKING ADDITI ON ON ACCOUNT OF CUSTOM DUTY REFUND RS.33,48,670. GROUND NO.7 : IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE A PPELLANTS CASE, THE LEARNED A.O. HAS GROSSLY ERRED IN CHARGING INTE REST U/S.234B FOR RS.13,12,640. GROUND NO.8 : IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE A PPELLANTS CASE, THE LEARNED A.O. HAS GROSSLY ERRED IN INITIATING PE NALTY PROCEEDING U/S.271(1)(C) OF I.T. ACT FOR CONCEALMENT OF INCOME AND FURNISHING INACCURATE PARTICULARS OF INCOME. ADDITIONAL GROUND : IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE A PPELLANTS CASE, THE LEARNED A.O. HAS GROSSLY ERRED IN NOT GIVING CR EDIT OF RS.31,87,905. 4. YOUR APPELLANT RESERVES THE RIGHT TO ADD, ALTER, AMEND ALL OR ANY OF THE ABOVE GROUNDS OF APPEAL AS MAY BE ADVISE D FROM TIME TO TIME. ITA NOS.1397, 1398, 1399 & 1400/AHD/2006 NIRMA SPECIFIC FAMILY TRUST VS. ITO & K.KACHARDAS PATEL VS. ITO ASST.YEAR - 1992-93 - 4 - 2. THE BRIEF FACTS OF THE CASE ARE THAT NIRMA SPEC IFIC FAMILY TRUST WAS SETTLED ON 13/10/1982. IT CARRIED ON BUSINESS OF MANUFACTURING AND SELLING DETERGENTS IN THE NAME AND STYLE OF NOBLE INDUSTRIES. THIS TRUST WAS DISSOLVED ON 20/12/1987. IN ORDER TO TAX CREDIT NOTE ISSUED BY GUJARAT DETERGENTS MANUFACTURING ASSOCIATION (GDMA) , BEING SHARE IN CUSTOM DUTY REFUND IN RESPECT OF PURCHASE OF RAW-MA TERIAL IN EARLIER YEARS, THE ASSESSING OFFICER ISSUED NOTICE U/S.148 OF THE I.T. ACT, 1961 DATED 20/12/1994 IN THE NAME OF NIRMA SPECIFIC FAM ILY TRUST. FOR DOING SO, THE LEARNED ASSESSING OFFICER HELD THAT THE TRUST CAN BE ASSESSED AS SUCH EVEN AFTER ITS DISSOLUTION. 3. THE ASSESSING OFFICER ASSESSED A SUM OF RS.33, 48,670/- IN THE ORDER DATED 28/02/1995 PASSED U/S.143(3) RWS 147 OF THE I.T. ACT, 1961. THE ASSESSEE CHALLENGED THIS ORDER OF THE ASSESSIN G OFFICER IN RESPECT OF RE-OPENING U/S.148 OF THE I.T. ACT, 1961 AS WELL AS ON MERITS. THE LEARNED CIT(APPEALS) VIDE HIS ORDER DATED 20/07/199 5 ALLOWED THE CLAIM OF THE ASSESSEE ON MERITS BY HOLDING THAT CUSTOM DU TY IS NOT TAXABLE U/S.41(1) RWS. 176(3A) / 177. THE LEARNED CIT(APP EALS), HOWEVER, DID NOT ADJUDICATE THE ISSUE RELATING TO RE-OPENING OF THE ASSESSMENT BY ITA NOS.1397, 1398, 1399 & 1400/AHD/2006 NIRMA SPECIFIC FAMILY TRUST VS. ITO & K.KACHARDAS PATEL VS. ITO ASST.YEAR - 1992-93 - 5 - HOLDING THAT, AS ADDITION HAS BEEN DELETED ON MERIT S, THE ISSUE OF RE- OPENING HAS BECOME REDUNDANT. THE ASSESSEE HAD RAI SED THE ISSUE OF REOPENING BEFORE THE LEARNED CIT(APPEALS) IN GROUN D NO.2 WHICH WAS ACCORDINGLY DECLARED REDUNDANT. THE DEPARTMENT PRE FERRED APPEAL BEFORE THE TRIBUNAL WHICH VIDE ITS ORDER DATED 28/0 2/2003, ALLOWED DEPARTMENTS APPEAL BUT ALSO ALLOWED THE CROSS OBJE CTIONS OF THE ASSESSEE IN RESPECT OF THE ISSUE RELATING TO REOPENING OF AS SESSMENT BY SETTING ASIDE THE SAME TO THE FILE OF LEARNED CIT(APPEALS). THU S, THE TRIBUNAL RESTORED THE ISSUE OF RE-OPENING OF THE ASSESSMENT U/S.148(1) OF THE I.T. ACT, 1961 TO THE FILE OF LEARNED CIT(APPEALS) AND, AT THE SAME TIME, ALLOWED THE APPEAL OF THE REVENUE ON MERITS. 4. AGAINST THIS ORDER OF THE TRIBUNAL, THE ASSESSEE PREFERRED TAX APPEAL BEFORE THE HON'BLE GUJARAT HIGH COURT WHICH PASSED AN ORDER ON 14/12/2004, WHEREBY ORDER OF THE TRIBUNAL WAS PARTI ALLY QUASHED. THE HON'BLE GUJARAT HIGH COURT QUASHED THAT PART OF TH E ORDER OF THE TRIBUNAL, WHEREBY APPEAL OF THE REVENUE WAS ALLOWED BUT UPHELD THAT PART WHEREBY APPEAL WAS RESTORED TO THE FILE OF THE LEARNED CIT(APPEALS) FOR DECIDING THE ISSUE REGARDING RE-OPENING OF THE ASSESSMENT. FINALLY, ITA NOS.1397, 1398, 1399 & 1400/AHD/2006 NIRMA SPECIFIC FAMILY TRUST VS. ITO & K.KACHARDAS PATEL VS. ITO ASST.YEAR - 1992-93 - 6 - THE HON'BLE JURISDICTIONAL HIGH COURT DIRECTED THE LEARNED CIT(APPEALS) TO FIRST DECIDE THE ISSUE REGARDING RE-OPENING OF T HE ASSESSMENT AND IF REQUIRED, THEN DECIDE THE ISSUE ON MERITS. IN TH IS REGARD, WE WOULD LIKE TO REFER THE FOLLOWING PART OF THE ORDER OF THE HON 'BLE GUJARAT HIGH COURT:- 11. IT IS MADE CLEAR THAT IN LIGHT OF THE AFORESAI D FACT SITUATION THE COURT HAS NOT ENTERED INTO MERITS OF THE MATTER NOR HAVE PARTIES BEEN PERMITTED TO ADDRESS THE COURT ON THE SAID ISS UES. THE ORDER OF THE TRIBUNAL TO THE EXTENT IT DECIDES ON MERITS OF THE MATTER IS HEREBY QUASHED AND SET ASIDE AND THE DIRECTION TO T HE CIT(APPEALS) MADE BY THE TRIBUNAL TO DECIDE THE ISS UE RAISED BY THE ASSESSEE REGARDING VALIDITY OF THE NOTICE U/S.1 48 OF THE ACT IS UPHELD. SIMULTANEOUSLY THE ORDER OF CIT(APPEALS) WHICH HAS DECIDE THE MERITS OF THE CONTROVERSY IS ALSO QUASHE D AND SET ASIDE. THE LEARNED CIT(APPEALS) SHALL, AFTER GIVING OPPORT UNITY TO BOTH THE PARTIES OF BEING HEARD AND PLACING ON RECORD AN Y EVIDENCE IN SUPPORT OF THEIR RESPECTIVE STANDS DECIDE IN THE FI RST INSTANCE THE ISSUE REGARDING VALIDITY OF REOPENING AND THEREAFTE R, IF NECESSARY, DECIDE THE MERITS OF THE MATTER. 12. ACCORDINGLY THE QUESTION AS FORMULATED IS ANS WERED IN LIGHT OF THE AFORESAID REASONS AND DIRECTIONS. THE TRIBUNA L COULD NOT HAVE DECIDED THE MERITS OF THE CONTROVERSY WITHOUT ADJUDICATING ON THE VALIDITY OF THE NOTICE ISSUED U/S.148 OF THE AC T AND THE TRIBUNAL COULD NOT HAVE UPHELD THE ORDER OF LEARNED CIT(APPE ALS) ADOPTING SUCH A COURSE OF ACTION. 5. FOR GIVING EFFECT TO THE ORDER OF THE HON'BLE G UJARAT HIGH COURT, THE LEARNED CIT(APPEALS) PROCEEDED TO DECIDE THE IS SUE REGARDING ITA NOS.1397, 1398, 1399 & 1400/AHD/2006 NIRMA SPECIFIC FAMILY TRUST VS. ITO & K.KACHARDAS PATEL VS. ITO ASST.YEAR - 1992-93 - 7 - RE-OPENING OF THE ASSESSMENT. THE LEARNED CIT(APP EALS) AFTER UPHOLDING THE RE-OPENING, OBSERVED AS UNDER:- FOR THE REASONS MENTIONED ABOVE, IT IS QUITE MANIF EST AND EVIDENT THAT THE ASSESSING OFFICER HAD RIGHTLY EXERCISE HIS JURISDICTION IN ISSUANCE OF NOTICE U/S.148 OF THE I.T. ACT, 1961 TO THE APPELLANT. THE REOPENING OF THE ASSESSMENT IN THE FIRST INSTAN CE WAS VALIDLY DONE BY THE ASSESSING OFFICER AND IN THIS REGARD I NEED NOT DECIDE THE MERITS OF THE MATTER IN THIS APPEAL, AS IT WOUL D NOT BE NECESSARY AS THE LEGITIMACY OF THE REOPENING OF THIS ASSESSME NT, PROPRIO VIGORE, CONFIRMS THE ACTION OF THE ASSESSING OFFICE R ON MERITS ALSO. IN OTHER WORDS, IF THE FOUNDATION OF THE REOPENING OF THE ASSESSMENT IS LEGALLY CORRECT, THEN THE SUPERSTRUCT URE OF THE MERITS OF THE ISSUES IS ALSO TENABLE AND VINDICABLE AS THE Y FOLLOW AS A LOGICAL COROLLARY OF THE REOPENING ASPECT OF THIS I NVOCATION. 6. THUS, THE LEARNED CIT(APPEALS) DID NOT PROCEED T HE ISSUE ON MERITS. 7. BEFORE US, LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE CHALLENGED THE ORDER OF THE LEARNED CIT(APPEALS) ON BOTH THE COUNTS; FIRST THE ISSUE OF RE-OPENING OF THE ASSESSMENT AS WELL AS ON NOT DECIDING THE ISSUE ON MERITS AS DIRECTED BY THE HON'BLE GUJ ARAT HIGH COURT. HE SUBMITTED THAT LEARNED CIT(APPEALS) OUGHT TO HAVE D ECIDED BOTH THE ISSUES TOGETHER AND SHOULD NOT HAVE LEFT THE ISSUE ON MERIT IN LIMBO. 8. ON THE OTHER HAND, LD.DR SOUGHT TO ARGUE THE ISS UE ON MERITS ONLY. ITA NOS.1397, 1398, 1399 & 1400/AHD/2006 NIRMA SPECIFIC FAMILY TRUST VS. ITO & K.KACHARDAS PATEL VS. ITO ASST.YEAR - 1992-93 - 8 - 9. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE ARE OF THE CONSIDERED VIEW THAT LEARNED CIT(APPEALS) OUGHT TO HAVE DECIDE D BOTH THE ISSUES TOGETHER. IT SEEMS THAT HE DID NOT CONSIDER IT NE CESSARY TO DECIDE THE MERITS OF THE MATTER. THE DIRECTIONS OF HON'BLE GU JARAT HIGH COURT WAS NOT THAT THE LEARNED CIT(APPEALS) MAY NOT DECIDE TH E ISSUE ON MERIT, BUT WERE THAT, IN CASE, ISSUE OF RE-OPENING OF THE AS SESSMENT IS UPHELD IN FAVOUR OF THE REVENUE, THEN THE ISSUE ON MERITS SHO ULD BE DECIDED, SO THAT IF THE ASSESSEE GETS RELIEF ON MERIT IT SHOULD BE G IVEN NOTWITHSTANDING THAT THE ASSESSEE DOES NOT GET RELIEF ON THE ISSUE OF R E-OPENING OF THE ASSESSMENT. IN OUR CONSIDERED VIEW, THE INTERPRE TATION TAKEN BY THE LEARNED CIT(APPEALS) WAS NOT CORRECT. ONCE THERE IS A MANDATE OF HON'BLE GUJARAT HIGH COURT TO DECIDE THE ISSUE ON M ERITS ALSO, IN CASE, ISSUE OF RE-OPENING GOES AGAINST THE ASSESSEE, THEN LEARNED CIT(APPEALS) SHOULD NOT HAVE LEFT THE ISSUE UNDECIDED. WE, AC CORDINGLY, RESTORE THE MATTER TO THE FILE OF LEARNED CIT(APPEALS) TO DISPO SE OF GROUND NOS.3 TO 8 AND ADDITIONAL GROUND RAISED BY THE ASSESSEE BEFO RE HIM SO AS TO MAKE THE COMPLIANCE IN ACCORDANCE WITH THE DIRECTIONS OF HON'BLE GUJARAT HIGH ITA NOS.1397, 1398, 1399 & 1400/AHD/2006 NIRMA SPECIFIC FAMILY TRUST VS. ITO & K.KACHARDAS PATEL VS. ITO ASST.YEAR - 1992-93 - 9 - COURT. THE ISSUE OF RE-OPENING OF THE ASSESSMENT M AY BE CONSIDERED BY THE LEARNED CIT(APPEALS) AFRESH IF DEEMED NECESSARY . 10. AS A RESULT, APPEAL OF THE ASSESSEE, I.E. ITA N O.1397/AHD/2006 IS ALLOWED FOR STATISTICAL PURPOSES. ASSESSEES APPEAL IN ITA NO.1399/AHD/2006 - FOR ASS ESSMENT YEAR 1992-93 (IN THE CASE OF K.KACHARADAS PATEL) 11. SINCE THE FACTS AND CIRCUMSTANCES OF THE CASE ARE SAME AS WERE IN THE CASE OF NIRMA SPECIFIC FAMILY TRUST, AHMEDABAD (ITA NO.1397/AHD/2006) FOR ASSESSMENT YEAR 1992-93 AND T HE ORDER OF THE HON'BLE GUJARAT HIGH COURT IS ALSO A COMBINED ORDER FOR BOTH THE ASSESSEES, WE RESTORE THE MATTER TO THE FILE OF THE LEARNED CIT(APPEALS) TO DECIDE THE ISSUE OF REOPENING AS WELL. 12. AS A RESULT, ASSESSEES APPEAL IN ITA NO.1399/A HD/2006 IS ALSO ALLOWED FOR STATISTICAL PURPOSES. ITA NOS.1398/AHD/2006 & 1400/AHD/2006 FOR ASSESSMEN T YEAR 1992- 93 IN THE CASE OF NIRMA SPECIFIC FAMILY TRUST AND K .KACHARADAS PATEL RESPECTIVELY. ITA NOS.1397, 1398, 1399 & 1400/AHD/2006 NIRMA SPECIFIC FAMILY TRUST VS. ITO & K.KACHARDAS PATEL VS. ITO ASST.YEAR - 1992-93 - 10 - 13. THESE ARE THE APPEALS FILED BY THE TWO ASSESSEE S FOR THE ASSESSMENT YEAR 1992-93. SINCE COMMON ISSUES ARE I NVOLVED, THEY ARE BEING DISPOSED OF TOGETHER FOR THE SAKE OF CONVENIE NCE. ITA NO.1398/AHD/2006 14. THE ONLY GROUND RAISED BY THE ASSESSEE BEFORE US IS ABOUT CONFIRMING THE LEVY OF PENALTY OF RS.18,76,000/- U/ S.271(1)(C) OF THE I.T. ACT, 1961 IN THE CASE OF NIRMA SPECIFIC FAMILY TRUS T. 15. THE ASSESSING OFFICER PASSED THE PENALTY ORDER U/S.271(1)(C) OF THE I.T. ACT, 1961 ON 30/12/2003 FOR THE ASSESSMENT YE AR 1992-93 ON THE BASIS OF THE ASSESSMENT ORDER PASSED BY HIM ON 28/ 02/1995. THUS, THIS ORDER ON QUANTUM HAD TRAVELED TO THE ITAT AHMEDABAD BENCH A AND THE TRIBUNAL VIDE ITS ORDER DATED 28/02/2003 CONFIR MED THE ADDITION ON MERIT, BUT HAD RESTORED THE ISSUE REGARDING RE-OPEN ING OF THE ASSESSMENT TO THE FILE OF LEARNED CIT(APPEALS). THE ASSESSIN G OFFICER LEVIED A PENALTY U/S.271(1)(C) OF THE I.T. ACT, 1961, ON TH E BASIS OF THE ORDER OF THE TRIBUNAL. THE LEARNED CIT(APPEALS) VIDE HIS I MPUGNED ORDER DATED 14/03/2006 CONFIRMED THE LEVY OF PENALTY. THE ASSE SSEE IS IN APPEAL BEFORE US AGAINST THIS ORDER. ITA NOS.1397, 1398, 1399 & 1400/AHD/2006 NIRMA SPECIFIC FAMILY TRUST VS. ITO & K.KACHARDAS PATEL VS. ITO ASST.YEAR - 1992-93 - 11 - 16. IT WAS CONTENDED BY THE LEARNED AUTHORISED REPR ESENTATIVE OF THE ASSESSEE THAT THE ORDER OF THE TRIBUNAL WHICH HAD B ECOME THE BASIS FOR LEVYING THE PENALTY BY THE ASSESSING OFFICER AND IT S CONFIRMATION BY THE LEARNED CIT(APPEALS) HAS BEEN QUASHED BY THE HON'BL E GUJARAT HIGH COURT. THEREFORE, THE BASIS AS SUCH DOES NOT SURV IVE. FURTHER, LEARNED CIT(APPEALS) HAS TO DECIDE THE ISSUE ON MERIT ALSO IN VIEW OF THE ORDER OF THE HON'BLE GUJARAT HIGH COURT VIDE PARAGRAPH NOS.1 1 & 12 OF THEIR ORDER DATED 14/12/2004 (WHICH WE HAVE ALREADY REPRO DUCED IN PARAGRAPH NO.4 OF THIS ORDER). 17. THE LEARNED AUTHORISED REPRESENTATIVE OF THE AS SESSEE SUBMITTED THAT ONCE THE ISSUE ON MERIT STILL REMAIN UNDECIDED , THE QUESTION OF LEVY OF PENALTY SHOULD NOT ARISE. 18. ON THE OTHER HAND, LD.DR RELIED ON THE ORDERS O F THE AUTHORITIES BELOW. 19. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED T HE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RE CORD. VIDE OUR ORDER OF ITA NOS.1397, 1398, 1399 & 1400/AHD/2006 NIRMA SPECIFIC FAMILY TRUST VS. ITO & K.KACHARDAS PATEL VS. ITO ASST.YEAR - 1992-93 - 12 - EVEN DATE IN ITA NOS.1397/AHD/2006 AND 1399/AHD/200 6 WE HAVE RESTORED THE ISSUE REGARDING THE QUANTUM TO THE FIL E OF LEARNED CIT(APPEALS) FOR DECIDING AFRESH IN ACCORDANCE WITH THE DIRECTIONS OF HON'BLE GUJARAT HIGH COURT IN PARAGRAPH NOS.11 & 12 OF THEIR ORDER DATED 14/12/2004. 20. SINCE THE ISSUE REGARDING MERIT IS PENDING, IT WOULD BE APPROPRIATE TO DECIDE THE ISSUE OF LEVY OF PENALTY THEREAFTER. WE, ACCORDINGLY, RESTORE THE ISSUE TO THE FILE OF ASSESSING OFFICER TO CONSIDER THE LEVY OF PENALTY AFTER THE ORDER OF THE APPELLATE AUTHORITIE S ON MERITS, IN ACCORDANCE WITH LAW AND AFTER PROVIDING AN OPPORTUN ITY OF BEING HEARD TO THE ASSESSEE. 21. AS A RESULT, ASSESSEES APPEAL IN ITA NO.1398/A HD/2006 IS TREATED AS ALLOWED BUT FOR STATISTICAL PURPOSES. ASSESSEES APPEAL, ITA NO.1400/AHD/2006 FOR ASSESS MENT YEAR 1992- 93 (IN THE CASE OF K.KACHARADAS PATEL) 22. SINCE THE FACTS AND CIRCUMSTANCES IN THIS CAS E ARE THE SAME AS ARE IN THE CASE OF NIRMA SPECIFIC FAMILY TRUST (ITA NO.1398/AHD/2006)[SUPRA], WE RESTORE THIS ISSUE OF PENALTY TO THE FILE OF ITA NOS.1397, 1398, 1399 & 1400/AHD/2006 NIRMA SPECIFIC FAMILY TRUST VS. ITO & K.KACHARDAS PATEL VS. ITO ASST.YEAR - 1992-93 - 13 - ASSESSING OFFICER FOR DECIDING AFRESH AFTER THE DEC ISION OF APPELLATE AUTHORITIES ON MERITS/REOPENING OF THE ASSESSMENT, ALSO AFTER PROVIDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE IN ACCORDANCE WITH LAW. AS A RESULT, THIS APPEAL OF THE ASSESSEE IS ALSO TREATED AS ALLOWED BUT FOR STATISTICAL PURPOSES. 23. ALL THE APPEALS ARE ALLOWED FOR STATISTICAL PUR POSES. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 25/09/2009. SD/- SD/- ( T.K.SHARMA ) ( D.C.AGRAWAL ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 25/ 09 /2009 T.C. NAIR COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-XVI, AHMEDABAD 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD