Shri Dilipsinh Laxmansinh Rathod, Ahmedabad V. The Income tax Officer,Ward-2, Godhra

ITA 2287/AHD/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0984 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 10 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 21-07-2016
• Assessment Year: 2003-2004
• Appeal Filed On: 12-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P MEENA
• Keywords: Unexplained investment

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER ./ ITA.NO.2285 TO 2288/AHD/2013 / ASSTT. YEAR: 2001-2002 TO 2004-2005 SHRI DILIPSINH LAXMANSINH RATHOD C/O. MAHIPALSINH D. RATHOD 12/94-F, COLONY SHAALAM TOLL NAKA AHMEDABAD 380 028. PAN : ACEPR 2785 D VS ITO, WARD - 2 GODHRA. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE BY : SHRI JIMI PATEL, AR REVENUE BY : SHRI O.P. MEENA, SR.DR / DATE OF HEARING : 21/07/2016 / DATE OF PRONOUNCEMENT: 01/08/2016 $%/ O R D E R PRESENT FOUR APPEALS ARE DIRECTED AT THE INSTANCE O F THE ASSESSEE AGAINST SEPARATE ORDERS OF THE LD.CIT(A)-II, BARODA DATED 2 3.5.2013 ON THE APPEALS OF THE ASSESSEE FOR THE ASSTT.YEARS 2001-02 TO 2004-05 . 2. SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT THELD .CIT(A) HAS ERRED IN CONFIRMING THE PENALTY UNDER SECTION 271(1)(C) OF T HE INCOME TAX ACT. 3. THE LD.COUNSEL FOR THE ASSESSEE, AT THE VERY OUT SET SUBMITTED THAT THE ADDITIONS MADE TO THE INCOME OF THE ASSESSEE TRAVEL LED UPTO THE TRIBUNAL IN ITA NOS.2768-2772/AHD/2008 FOR THE ASSTT.YEARS 2001 -02 TO 2005-06. THE TRIBUNAL HAS SET ASIDE THE IMPUGNED ORDERS OF THE R EVENUE AUTHORITIES AND REMITTED THE ISSUE TO THE FILE OF THE AO. THUS, TH E DETERMINATION OF THE TOTAL INCOME OF THE ASSESSEE IN THESE ASSESSMENT YEARS HA S BEEN RELEGATED TO THE AO ITA NO.2285 TO 2288/AHD/2013 2 BY THE TRIBUNAL. UNLESS THE INCOME IS DETERMINED, PENALTY CANNOT BE IMPOSED UPON THE ASSESSEE. HE PRAYED THAT THESE ORDERS BE SET ASIDE TO THE FILE OF THE AO. THE LD.DR WAS UNABLE TO CONTROVERT THE CONTENT IONS OF THE LD.COUNSEL FOR THE ASSESSEE. 4. I HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GON E THROUGH THE RECORD CAREFULLY. THE FINDING OF THE TRIBUNAL IN THE QUAN TUM APPEALS READS AS UNDER: 8. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AN D GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT PROCEEDI NGS UNDER THE PREVENTION OF CORRUPT ACT, 1988 WERE INITIATED AGAI NST THE ASSESSEE FOR HAVING DISPROPORTIONATE ASSETS WORTH RS.50,49,590/- IN HIS POSSESSION. IT WAS THE CASE OF THE PROSECUTING AGENCY THAT DURI NG THE COURSE OF INVESTIGATION, IT CAME TO THE NOTICE OF THE DEPARTM ENT THAT ASSESSEE HAS MADE INVESTMENTS IN HIS NAME AS WELL AS IN THE NAME S OF HIS DEPENDENTS AND THE EVIDENCES DEMONSTRATING THE DISPROPORTIONAT E ASSETS HAD COME TO THE LIGHT. THE LD. SPECIAL JUDGE HAS CONSIDERED THESE ALLEGATIONS AND ACQUITTED THE ASSESSEE. ON DUE CONSIDERATION OF THE JUDGMENT OF SPECIAL JUDGE, ACB, PARTICULARLY PARAGRAPH, 57 & 74, WE ARE OF THE VIEW THAT BEFORE THE COURT OF SPECIAL JUDGE, ACB, ASSESSEE HA S PRODUCED EVIDENCES DEMONSTRATING HIS POSITION ABOUT ALLEGED UNACCOUNTED ASSETS. IN ALL ASSESSMENT YEARS, THE INCOME HAS BEEN COMPUT ED ON THE BASIS OF PANCHNAMA AND OTHER DETAILS COLLECTED FROM THE A.C. B. CONSIDERING THE JUDGMENT OF SPECIAL COURT OF A.C.B. WHICH HAS A NALYZED THE EVIDENCES, WE DEEM IT APPROPRIATE THAT ALL THESE AD DITIONS DESERVE TO BE SET ASIDE TO THE FILE OF ASSESSING OFFICER FOR RE-A DJUDICATION BECAUSE AT THE TIME OF ASSESSMENT PROCEEDINGS NEITHER THE ASSE SSING OFFICER WAS POSSESSING THE CLINCHING EVIDENCES WHICH COULD EXHI BIT THE UNEXPLAINED INVESTMENTS EXCLUSIVELY IN THE HANDS OF ASSESSEE NO R THE ASSESSEE COULD FILE HIS EXPLANATION WITH REGARD TO THE ALLEGATIONS POSED BEFORE HIM ON THE STRENGTH OF PANCHNAMA OF ACB. IT IS PERTINENT T O OBSERVE THAT PROSECUTION IN THE CRIMINAL CASE FAILED TO ESTABLIS H THE POSSESSION OF DISPROPORTIONATE ASSETS BY THE ASSESSEE, MEANING TH EREBY THE EVIDENCE COLLECTED BY THE PROSECUTION WAS NOT OF THAT NATURE WHICH COULD SATISFY THE COURT ABOUT UNEXPLAINED INVESTMENT BY THE ACCUS ED. BEARING THIS FACT IN MIND, WHEN WE PERUSED THE ASSESSMENT ORDERS THEN IT REVEALED THAT AO HAS RELIED UPON THE PANCHNAMA/CHARGE SHEET PREPARED BY PROSECUTION. ON DUE CONSIDERATION OF THESE FACTS WE ARE OF THE VIEW THAT IT IS FOR THE LD. AO TO FIRST LAY HIS HANDS ON AN E VIDENCE WHICH SHOWS UNEXPLAINED INVESTMENT BY THE ASSESSEE. THE LD. AO THEREAFTER SUPPOSED ITA NO.2285 TO 2288/AHD/2013 3 TO CALL UPON THE EXPLANATION OF THE ASSESSEE QUA TH AT INVESTMENT OR ANY ASSETS POSSESSED BY HIM. IF THE AO IS NOT SATISFIED WITH THE EXPLANATION OF THE ASSESSEE THEN ADDITION IN THE HANDS OF ASSES SEE CAN BE MADE. THE LD. ASSESSING OFFICER SHALL DECIDE THE ISSUES IN AC CORDANCE WITH LAW KEEPING IN VIEW THE DECISION OF THE SPECIAL JUDGE, ACB. 9. THE OBSERVATION MADE BY US WILL NOT IMPAIR OR IN JURE THE CASE OF REVENUE AND WILL NOT CAUSE ANY PREJUDICE TO THE DEF ENCE/ EXPLANATION OF THE ASSESSEE. THESE ARE SPECIFICALLY TO BE CONFINED FOR BRINGING THE POINTS TO SET ASIDE THE ISSUES TO THE FILE OF ASSES SING OFFICER. THE LD. ASSESSING OFFICER SHALL PROVIDE DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. 10. THE APPEALS OF ASSESSEE AND THE APPEAL OF REVEN UE ARE ALLOWED FOR STATISTICAL PURPOSES. 5. PENALTY UNDER SECTION 271(1)(C) OF THE ACT CAN B E IMPOSED UPON AN ASSESSEE WHO HAS EVADED THE TAX ON THE ADDITION WHI CH HAS BEEN MADE TO THE TOTAL INCOME OF THE ASSESSEE. UNLESS THE TOTAL INC OME IS DETERMINED NO PENALTY CAN BE IMPOSED UPON THE ASSESSEE UNDER SECTION 271( 1)(C) OF THE ACT. THEREFORE, I ALLOW ALL THESE APPEALS AND REMIT THIS ISSUE TO THE FILE OF THE AO. IT IS FOR THE AO TO INITIATE OR NOT TO INITIATE PEN ALTY AFTER DETERMINATION OF TOTAL INCOME OF THE ASSESSEE IN ALL THESE YEARS. IN VIEW OF THE ABOVE DISCUSSION, APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. 6. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 1 ST AUGUST, 2016 AT AHMEDABAD. SD/- (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 01/08/2016