Shri Purushottam Somani, Surat V. The Income tax officer,Ward-2(4), Surat

ITA 2220/AHD/2009

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 63031 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 29-08-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 16-07-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAHUL KUMARSR
• Keywords: Retrospective amendment; Validity of assessment; Assessment record
• Section: 143(3); 80HHC; 145; 28

Judgement Text

ITA NO.2220 & 2168/AHD/2009 . ASSESSMENT Y EAR 2003- 04 . 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, A HMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL C HATURVEDI, A.M.) I.T. A. NO. 2220/AHD/2009 (ASSESSMENT YEAR: 2 003-04) PURSHOTTAM SOMANI 303 EMPIRE ESTATE BUILDING, RING ROAD, SURAT. (APPELLANT) VS. INCOME TAX OFFICER, WARD 2(4), AAYAKAR BHAVAN, MAJURA GATE,SURAT. (RESPONDENT) I.T. A. NO. 2168/AHD/2009 (ASSESSMENT YEAR : 2003-04) INCOME TAX OFFICER, WARD 2(4), AAYAKAR BHAVAN, MAJURA GATE, SURAT. (APPELLANT) VS. PURSHOTTAM SOMANI 303 EMPIRE ESTATE BUILDING, RING ROAD, SURAT. (RESPONDENT) PAN: ADOPS 3003J APPELLANT BY : MR.TUSHAR HEMANI RESPONDENT BY : MR.RAHUL KUMAR,SR. D.R. ( )/ ORDER DATE OF HEARING : 29- 8 -2012 DATE OF PRONOUNCEMENT : 31-10-2012 PER: SHRI ANIL CHATURVEDI, A.M. ITA NO.2220 & 2168/AHD/2009 . ASSESSMENT Y EAR 2003- 04 . 2 THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER OF LD. CIT (A)- II, SURAT DATED 30-3-2009 FOR THE ASSESSMENT YEAR 2 003-04. ITA NO.2220/AHD/2009. ASSESSMENT YEAR 2003-04 2. THE ASSESSEE IS AN INDIVIDUAL. HE FILED HIS RETU RN OF INCOME FOR A.Y. 2003-04 ON 29-11-2003 DECLARING TOTAL INCOME AT RS. NIL. THE CASE WAS SELECTED FOR SCRUTINY AND ACCORDINGLY NOTICE U/S. 1 43(2) OF THE ACT WAS ISSUED ON 8-10-2004 AND SERVED ON 16-10-2004. THE A SSESSEE DID NOT COMPLY WITH THE NOTICE. THEREAFTER QUESTIONNAIRE LE TTER DATED 25-2-2005 WAS ISSUED TO THE ASSESSEE ASKING HIM TO FURNISH CE RTAIN DETAILS IN CONNECTION WITH THE RETURN OF INCOME. ASSESSEE VIDE TELEGRAM DATED 14-3- 2005 STATED THAT HIS CASE IS TIME BARRED. SUBSEQUEN TLY LETTERS WERE ISSUED ON VARIOUS OCCASION BUT COULD NOT BE SERVED ON THE ASSESSEE. THE ASSESSEE VIDE HIS LETTER DATED 19-12-2005 FURNISHED PART OF THE INFORMATION. A.O. THUS, ON THE BASIS OF MATERIAL ON RECORD VIDE HIS ORDER DATED 20-3- 2006 COMPLETED THE ASSESSMENT U/S 143(3) AND DETERM INED THE TOTAL INCOME AT RS.1,05,00,130/- BY HOLDING AS UNDER:- 5. IT IS SEEN FROM THE CASE RECORDS THAT THE ASSES SEE IS INVOLVED IN VARIOUS OFFENCES COMMITTED UNDER THE CENTRAL EXCISE ACT AS WELL AS SALES TAX ACT. THE ASSESSEE WAS ALSO DETAINED BY TH E OFFICERS OF THE D.R.I. AND HIS OFFICE PREMISES WERE ALSO SEALED. TH E CASES AGAINST HIM ARE PENDING ADJUDICATION AND THE ASSESSEE IS NO W EVADING HIS ARREST. HE HAS FURNISHED DETAILS BY POST UNDER HIS UNSIGNED LETTERS. THE MAIN ALLEGATION IS THAT THE ASSESSEE HAS CLAIME D BOGUS EXCISE REBATE. VIDE THIS OFFICE NOTICE DATED 20-1-2006 THE ASSESSEE WAS SPECIFICALLY REQUESTED TO ATTEND THIS OFFICE ON 30- 1-2006 ALONG WITH HIS BANK PASS BOOK, CASH BOOK,. LEDGER, SALES AND PURCH ASE REGISTER, VOUCHERS FOR EXPENSES, STOCK RECORDS, COMPLETE ADDR ESS OF THE ITA NO.2220 & 2168/AHD/2009 . ASSESSMENT Y EAR 2003- 04 . 3 PROCESS HOUSE. CONFIRMATION OF UNSECURED LOAN ETC. HOWEVER ASSESSEE COULD NOT PRODUCE THE SAID REQUIREMENTS TI LL DATE. THEREFORE, FOR WANT OF PROPER DETAILS, THE QUESTION OF DEDUCTION UNDER SECTION 80HHC DOES NOT ARISE. THE ASSESSEE FAILS TO COMPLY WITH ALL THE TERMS OF NOTICES ISSUED UNDER SUB-SECTION 1 OF SECTION 142 OF THE INCOME TAX ACT. THE PROVISION OF SECTION 145 IS INV OKED AND BOOK RESULT OF THE ASSESSEE IS REJECTED. 3. AGGRIEVED BY THE ORDER OF THE A.O. THE ASSESSEE PREFERRED APPEAL BEFORE CIT (A). 4. BEFORE CIT (A), THE ASSESSEE ALSO CHALLENGED THE VALIDITY OF THE ASSESSMENT ORDER PASSED U/S.143 (3). CIT (A) DISMIS SED THE CLAIM OF THE ASSESSEE BY HOLDING AS UNDER:- 4.2. I HAVE CAREFULLY CONSIDERED THE FACTS OF T HE CASE AS SUBMITTED BY THE A.R. I HAVE ALSO GONE THROUGH THE ASSESSMENT RECORDS AND HAVE DISCUSSED THE CASE WITH THE PRESENT A.O. THE N OTICE U/S.143(2) DATED 8-10-2004 WAS SERVED ON THE ASSESSEES REPRES ENTATIVE ON 16- 10-2004. IT WAS RECEIVED BY ONE DULAL WHO ALSO PR OVIDED HIS PHONE NO. AS 2312615. A COPY OF THE SAID NOTICE IS ENCL OSED TO THIS ORDER, AT ANNEXURE-A. THEREFORE, THE CHALLENGE TO THE LEGA LITY OF THE ASSESSMENT ORDER ON THE GROUND THAT THE NOTICE U/S. 143(2) WAS NOT SERVED ON THE ASSESSEE, IS NOT SUPPORTED BY THE FAC TS ON RECORD. IT IS ALSO CLEAR THAT THE ASSESSEE HAS BEEN BENT UPON MIS REPRESENTING FACTS, WHICH APPEARS TO BE HIS REGULAR PRACTICE. HE HAS CLAIMED THAT THE A.OS OBSERVATION REGARDING THE LETTER ALLEGEDL Y WRITTEN BY HIM ON 16-10-2004 IN RESPONSE TO THE NOTICE U/S.143(2), WA S NEVER WRITTEN BY HIM. THIS IS BLATANTLY FALSE. A COPY OF THE SAID LE TTER IS ENCLOSED TO THIS ORDER, IN ANNEXURE-B. IN THIS LETTER, THE ASSESSEE HAS ACKNOWLEDGED THE RECEIPT THE NOTICE DATED 8-10-2004 WHICH WAS TH E NOTICE U/S.143(2). THEREFORE, THE CLAIM MADE BY THE ASSESS EE NOT ONLY IN THE GROUNDS OF APPEAL BUT ALSO IN THE UNDATED AND BACK- DATED LETTER OF18- 11-2008, IS BLATANTLY FALSE AND MISLEADING. ITA NO.2220 & 2168/AHD/2009 . ASSESSMENT Y EAR 2003- 04 . 4 4.3. COMING TO THE SERVICE OF THE ASSESSMENT ORDER U/S.143(3) DATED 20-3-2006, IT HAS BEEN CLAIMED THAT THE ORDER WAS N OT SERVED ON THE ASSESSEE WITHIN THE STIPULATED TIME. FIRST OF ALL, THERE IS NO TIME LIMIT STIPULATED IN THE ACT FOR THE SERVICE OF ASSESSMENT ORDER. SECONDLY, SINCE THE ASSESSEE AND OTHER MEMBERS OF HIS GROUP H AVE ALWAYS BEEN NON-COOPERATIVE AND GENERALLY ABSCONDING TO KE EP AWAY FROM THE REACHES OF LAW AND GOVERNMENT AGENCIES, HIS REP RESENTATIVE (S) AT HIS OFFICE PREMISES AT 303, EMPIRE STATE BUILDIN G, RING ROAD, SURAT HAVE ALWAYS REFUSED TO ACCEPT ANY COMMUNICATION FRO M THE I.T. DEPARTMENT. THEREFORE, THE ASSESSMENT ORDER WAS SER VED BY AFFIXTURE. THIS IS EVIDENCED BY A LETTER WRITTEN BY THE ASSESSEE ON 10- 9-2008, ADDRESSED TO THE A.O., WHICH IS AVAILABLE O N RECORD. THIS LETTER OF THE ASSESSEE WAS APPARENTLY IN RESPONSE T O A RECOVERY NOTICE ISSUED TO HIM, AND IT STATES, PLEASE NOTE T HAT OUR RECTIFICATION APPLICATION IS PENDING WITH YOUR OFFICE AND WE HAVE REPRESENTED OUR GRIEF WITH GOVERNMENT OF INDIA, NEW DELHI. EVEN TH OUGH, THE SO CALLED RECTIFICATION APPLICATION IS NOT AVAILABLE O N RECORD YET, IT IS ABSOLUTELY CLEAR THAT THE ASSESSMENT ORDER DATED 20 -3-2006 WAS DULY SERVED ON THE ASSESSEE. THE RECTIFICATION APPLICATI ON U/S.154 WAS DATED 11-4-2006, AS CLAIMED BY THE ASSESSEE IN ANOT HER LETTER DATED 8-9-2007 WHICH WAS IN RESPONSE TO THE SUMMONS DATED 3-9-2007 ISSUED AGAINST HIM. THE ASSESSEE COULD NOT HAVE FI LED THE RECTIFICATION APPLICATION UNLESS AND UNTIL HE HAD R ECEIVED THE ASSESSMENT ORDER. THE CLAIM OF THE ASSESSEE IS THUS ONCE AGAIN PROVED TO BE BOGUS, AND CONSEQUENTLY, BOTH THE GROU NDS TAKEN BY THE ASSESSEE CHALLENGING THE LEGALITY OF THE ASSESSMENT ORDER, ARE DISMISSED. 5. AGAINST THE ORDER OF CIT (A), THE ASSESSEE IS NO W IN APPEAL BEFORE US. GROUND NO.1 AND 2 ARE CONNECTED AND ARE WITH RESPEC T TO VALIDITY OF ASSESSMENT FRAMED U/S. 143(3). 6. BEFORE US, THE LD. A.R. SUBMITTED THAT THE NOTIC E U/S. 143(2) WAS NOT SERVED WITHIN ONE YEAR FROM THE END OF THE MONTH IN WHICH THE RETURN WAS FURNISHED. IN THIS CASE SINCE THE RETURN OF INCOME WAS FILED ON 29-11-2003 ITA NO.2220 & 2168/AHD/2009 . ASSESSMENT Y EAR 2003- 04 . 5 NOTICE U/S. 143 (2) SHOULD HAVE BEEN SERVED ON OR B EFORE 30-11-2004. SINCE THE NOTICE HAS NOT BEEN SERVED BEFORE THE DUE DATE THE ASSESSMENT FRAMED IS BAD IN LAW. HE ALSO RELIED ON THE DECISIO N IN THE CASE OF DCIT VS. MAHI VALLEY HOTELS & RESORTS 287 ITR 360. 7. LD. D.R. ON THE OTHER HAND SUBMITTED THAT THE NO TICE DATED 8-10-2004 WAS SERVED ON THE ASSESSEES REPRESENTATIVE ON 16-1 0-2004 A COPY OF THE SAID NOTICE IS ALSO ANNEXED AS ANNEXURE-1 TO THE OR DER OF CIT (A).IT WAS FURTHER SUBMITTED THAT THE ASSESSEE HAS ACKNOWLEDGE D THE RECEIPT OF NOTICE DATED 8-10-2004 VIDE ITS LETTER DATED 16-10-2004 AN D IT IS ALSO ANNEXED AS ANNEXURE B TO CIT (A)S ORDER. THE LD. D.R. THEREFO RE, SUBMITTED THAT THE NOTICE HAS BEEN SERVED WITHIN THE PRESCRIBED TIME A ND THEREFORE THE ASSESSMENT ORDER IS VALID. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THE NOTICE U/S. 143(2) DATED 8-10-2 004 WAS SERVED ON ASSESSEES REPRESENTATIVE ON 16-10-2004. WE ALSO FI ND THAT THE ASSESSEE VIDE ITS LETTER DATED 16-10-2004 HAS ACKNOWLEDGED T HE RECEIPT OF NOTICE DATED 8-10-2004 AND WHICH IS ATTACHED AS ANNEXURE B OF CIT (A)S ORDER. THE ASSESSEES LETTER DATED 16-10-2004 WAS SUBMITTE D TO THE OFFICE OF INCOME TAX AND BEARS THE STAMP ACKNOWLEDGING ITS RE CEIPT ON 26-10-2004. WE FIND THAT THE LD. A. R, HAS NOT BEEN IN A POSITI ON TO FURNISH ANY CONCRETE MATERIAL OR EVIDENCE TO PROVE THAT IT HAS NOT BEEN SERVED WITH THE NOTICE. CIT (A) IN HIS ORDER HAS GIVEN A FINDING THAT THE A SSESSEE HAD ACKNOWLEDGED THE RECEIPT OF NOTICE DATED 8-10-2004 WHICH WAS NOTICE U/S. 143 (2). CIT (A) HAS FURTHER STATED THAT THE ASSESS EES CLAIM THAT THE LETTER DATED 16-10-2004 HAS NOT BEEN WRITTEN BY HIM IS BLA TANTLY FALSE AND ITA NO.2220 & 2168/AHD/2009 . ASSESSMENT Y EAR 2003- 04 . 6 MISLEADING. THE DECISION ON WHICH RELIANCE WAS PLAC ED BY THE LD. A.R. ARE DISTINGUISHABLE ON FACTS. IN VIEW OF THE TOTALITY O F FACTS WE ARE OF THE VIEW THAT THE NOTICE U/S. 143(2) WAS ISSUED WELL IN TIME AND THE ASSESSMENT FRAMED U/S. 143(3) IS IN ORDER. THUS GROUND NOS.1 A ND 2 OF THE ASSESSEE ARE REJECTED. GROUND NOS.3 & 4 ARE WITH RESPECT TO DEDUCTION U/S. 80HHC IT READS AS UNDER:- GROUND NO.3 THAT THE LD. CIT (A) HAS FURTHER ERRE D IN CONFIRMING THE DISALLOWANCE OF DEDUCTION U/S.80HHC. GROUND NO.4 WITHOUT PREJUDICE TO THE ABOVE, THE LD . CIT (A) HAS ERRED IN CHARGING INCOME TAX ON THE AMOUNT OF ANY PROFIT ON TRANSFER OF DEPB. AS DEFINED UNDER SECTION 28(IIID), WHER EAS THE SUM SPECIFIED UNDER SECTION 28(IIID) SHOULD HAVE BEEN E XCLUDED FROM THE TOTAL INCOME, AS THE SAME IS NOT COVERED WITHIN THE DEFINITION OF INCOME U/S. 2(24) OF THE INCOME TAX ACT.. 9. DURING THE COURSE OF ASSESSMENT, SINCE THE ASSES SEE DID NOT FURNISH ANY DETAILS WITH RESPECT TO HIS CLAIM OF DEDUCTION U/S. 80HHC, THE A.O. DID NOT GRANT ANY DEDUCTION. 10. AGGRIEVED BY THE ORDER OF A.O., ASSESSEE CARRIE D THE MATTER BEFORE CIT (A). CIT (A) DISMISSED THE APPEAL OF ASSESSEE B Y HOLDING AS UNDER:- 5.3. THE CONTENTIONS OF THE ASSESSEE ARE SIMPLY NO T ACCEPTABLE. FIRSTLY, EVEN THOUGH THE ASSESSEE MAY HAVE FURNISHE D THE AUDIT REPORT IN FORM NO.10CCAC YET, THE CONTENTS OF SUCH REPORT WERE TO BE VERIFIED, ESPECIALLY THE METHOD OF COMPUTATION. THIS WAS IMPORTANT ITA NO.2220 & 2168/AHD/2009 . ASSESSMENT Y EAR 2003- 04 . 7 SINCE, SEC. 80HHC HAS UNDERGONE SUBSTANTIAL CHANGES BY VIRTUE OF THE AMENDMENTS BROUGHT IN BY THE TAXATION LAWS (AME NDMENT) ACT OF 2005, WITH RETROSPECTIVE EFFECT FROM 1-4-1992. S INCE, NO EXPLANATION WAS FURNISHED BY THE ASSESSEE IN COURSE OF THE ASSESSMENT PROCEEDINGS; THE A.O. WAS FULLY JUSTIFIE D IN REJECTING THE ASSESSEES CLAIM OF DEDUCTION UNDER THE SAID SECTIO N. COMING TO THE MORE SPECIFIC ISSUE OF SEC. 28 (IIID) R.W. THE THIR D PROVISO TO SECTION 80HHC, IT IS APPARENT THAT THE ASSESSEE HAS ACCEPTE D THE FACT THAT THE PROFITS ARISING FROM THE TRANSFER OF DEPB ENTIT LEMENTS WERE TO BE BROUGHT TO TAX BY INCREASING THE PROFIT OF BUSINESS AS COMPUTED UNDER CLAUSES (A), (B) AND (C) OF SECTION 80HHC(3) BY 90% OF SUCH PROFIT IN THE RATIO OF THE EXPORT TURNOVER TO THE TOTAL TURNO VER. THIS IS PROVIDED IN THE THIRD PROVISO TO THE SAID SECTION. THE ASSES SEE HAS ARGUED THAT SEC. 28(IIID) BEING A DEEMING PROVISION, CANNOT OVE RRIDE THE DEFINITION OF INCOME IN SEC. 2(24). THIS IS NOT A VALID ARGUME NT, SINCE SUB- SECTION (IIID) TO SECTION 28 IS NOT A DEEMING PROVI SION. SEC28 BEGINS WITH THE WORDS: THE FOLLOWING INCOME, SHALL BE CHARGEABLE TO INCOM E TAX UNDER THE HEADS PROFITS AND GAINS OF BUSINESS AND PROFESS ION ---- (EMPHASIS PROVIDED) SEC. 2(24) PROVIDES AN INCLUSIVE DEFINITION OF INC OME AND THE FIRST ITEM UNDER CLAUSE (I) IS PROFITS AND GAINS. ON THE OTHER HAND, SUB-SECTION (IIID) TO SEC. 28 BEGINS WITH THE WORDS - ANY PROFIT ON THE TRANSFER OF ----- THE DEFINITION OF INCOME U/S. 2(24) THEREFORE COVER S THE PROFIT EARNED FROM THE TRANSFER OF DEPB. THE ASSESSEES ARGUMENT THEREFORE IS WITHOUT ANY BASIS. CONSEQUENTLY, BOTH THE GROUNDS O F APPEAL CHALLENGING THE DENIAL OF DEDUCTION U/S. 80HHC OF T HE I.T. ACT AND THE TREATMENT OF THE PROFIT EARNED ON THE TRANSFER OF D EPB, ARE DISMISSED. INTERESTINGLY, THE MATTER CONCERNING DEPB AND THE T AXABILITY THEREOF WAS NOT BROUGHT INTO THE PICTURE BY THE A.O. SEPARA TELY. HE ONLY REJECTED THE ADMISSIBILITY OF DEDUCTION U/S. 80HHC OF THE I.T. ACT ITA NO.2220 & 2168/AHD/2009 . ASSESSMENT Y EAR 2003- 04 . 8 11. AGGRIEVED BY THE ORDER OF CIT (A), THE ASSESSEE IS NOW IN APPEAL BEFORE US. 12. BEFORE US, THE LD. A.R. SUBMITTED THAT ITS CLAI M FOR DEDUCTION U/S. 80HHC ALSO INCLUDE PROFITS ARISING FROM TRANSFER OF DEPB ENTITLEMENTS. HE SUBMITTED THAT AT THE TIME OF PASSING OF ORDER BY C IT (A), THE DECISION BY HONBLE APEX COURT IN THE CASE OF TOPMAN EXPORTS 34 2 ITR 49 (SC) WAS NOT RENDERED AND THEREFORE NOT AVAILABLE TO HIM. HE THEREFORE URGED THAT THE MATTER OF DETERMINATION OF DEDUCTION U/S. 80HHC BE REMITTED BACK TO THE FILE OF A.O. FOR FRESH DETERMINATION IN VIEW OF THE DECISION IN CASE OF TOPMAN EXPORTS (SUPRA) AND AVANI EXPORTS (23 TAXM AN 62). 13. THE LD. D.R. ON THE OTHER HAND SUBMITTED THAT S INCE NO DETAILS WERE FURNISHED BY THE ASSESSEE THE A.O. WAS FULLY JUSTIF IED IN REJECTING THE CLAIM OF ASSESSEE. HE THUS SUPPORTED THE ORDER OF A.O. 14. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT ASSESSEE HAD NOT SUBMITTED ANY DETAILS WITH RESPECT TO ITS CLAIM OF DEDUCTION U/S. 80HHC BEFORE THE A.O. O R CIT (A). IN THE CASE OF TOPMAN EXPORTS (SUPRA) THE HONBLE APEX COURT HAS H ELD THAT WHEN DEPB IS SOLD, THE PROFIT ON ITS TRANSFER WOULD BE THE SA LE VALUE OF DEPB LESS ITS FACE VALUE WHICH REPRESENTS THE COST OF DEPB AND NO T THE ENTIRE SUM RECEIVED ON SUCH TRANSFER. IN THE CASE OF AVANI EXP ORTS VS. CIT HONBLE GUJARAT HIGH COURT HAS QUASHED THE RETROSPECTIVE EF FECT GIVEN TO THIRD AND FOURTH PROVISO TO SEC.80HHC BY TAXATION LAWS (SECON D AMENDMENT) ACT, 2005. BEFORE US IT WAS SUBMITTED THAT THE PROFITS O NWHICH ASSESSEE HAS ITA NO.2220 & 2168/AHD/2009 . ASSESSMENT Y EAR 2003- 04 . 9 CLAIMED DEDUCTION U/S. 80HHC ALSO INCLUDES PROFIT O N SALE OF DEPB. WE FEEL THAT TO MEET THE ENDS OF JUSTICE ONE LAST OPPO RTUNITY BE GRANTED TO ASSESSEE TO SUBSTANTIATE HIS CLAIM OF DEDUCTION U/S . 80HHC. IN THE LIGHT OF AFORESAID DECISION OF HONBLE APEX COURT, WE FEEL T HAT THE MATTER SHOULD GO BACK TO THE FILE OF A.O. WE THUS REMIT THE MATTER T O THE FILE OF A.O. WITH A DIRECTION TO HIM TO DETERMINE THE DEDUCTION U/S. 80 HHC IN VIEW OF THE AFORESAID DECISION OF HONBLE APEX COURT & GUJARAT HIGH COURT AFTER GIVING A REASONABLE OPPORTUNITY OF HEARING TO ASSESSEE. WE ALSO DIRECT THE ASSESSEE TO PROMPTLY FURNISH THE NECESSARY DETAILS CALLED FOR BY THE A.O. WITHOUT SEEKING UNNECESSARY ADJOURNMENTS. THUS THIS GROUND OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO.2168AHD/2009 ASSESSMENT YEAR 2003-04 . 15. THE ONLY EFFECTIVE GROUND RAISED BY THE REVENUE READS AS UNDER:- ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) HAS ERRED IN DELETING THE PENALTY OF RS.32,80,2 40/- LEVIED BY THE A.O. U/S. 271(1)(C). 16. FROM THE PENALTY ORDER IT IS SEEN THAT THE PENA LTY HAS BEEN LEVIED U/S. 271(1) (C) BY A.O. ON DENIAL OF DEDUCTION U/S.80HHC . 17. SINCE WE HAVE REMITTED THE MATTER BACK TO THE F ILE OF THE A.O. FOR DECIDING THE ISSUE RELATING TO DEPB DEDUCTION CLAIM ED U/S. 80HHC IN APPEAL NO.ITA 2220 /AHD/2009 VIDE PARAGRAPH -14 AND SINCE THE PENALTY HAS BEEN LEVIED ON DEDUCTION CLAIMED U/S. 80HHC THE LEVY OF PENALTY DOES ITA NO.2220 & 2168/AHD/2009 . ASSESSMENT Y EAR 2003- 04 . 10 NOT SURVIVE AT PRESENT. IN VIEW OF THESE FACTS WE THEREFORE DELETE THE PENALTY LEVIED U/S. 271(1) (C) OF THE ACT. 18. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED WHEREAS PENALTY APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 31 - 10- 2012. SD/- SD /- (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. S.A.PATKI COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) II, SURAT. 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD ITA NO.2220 & 2168/AHD/2009 . ASSESSMENT Y EAR 2003- 04 . 11 1.DATE OF DICTATION 18 - 10 -2012 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 19,22 /10 / 2012 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S 26 -10-2012. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 31 - 10 -2012 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 31 -10 - 2012 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 3 1 -10 -2012. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER