Shri Nilesh Balvant Mahatma, Surat V. The Income tax Officer,Ward-2(4), Surat

ITA 2490/AHD/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0986 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 9 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 23-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P MEENA
• Assessee Lawyers: M K PATEL
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER ./ ITA.NO.2490/AHD/2013 / ASSTT. YEAR: 2007-2008 NILESH BALVANT MAHATMA PLOT NO.547, SACHIN GIDC ROAD NO.5, SACHIN SURAT 394 230. VS ITO, WARD - 2(4) SURAT. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE BY : SHRI M.K. PATEL, AR REVENUE BY : SHRI O.P. MEENA, SR.DR / DATE OF HEARING : 20/07/2016 / DATE OF PRONOUNCEMENT: 01/08/2016 $%/ O R D E R ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST T HE ORDER OF THE LD.CIT(A) DATED 2.8.2013 FOR THE ASSTT.YEAR 2007-08 . 2. GRIEVANCE OF THE ASSESSEE IS THAT THE LD.CIT(A) HAS ERRED IN CONFIRMING THE PENALTY OF RS.3,76,163/- UNDER SECTION 271(1)(C ) OF THE INCOME TAX ACT. 3. THE LD.COUNSEL FOR THE ASSESSEE AT THE VERY OUTS ET SUBMITTED THAT THE ASSESSEE HAS CHALLENGED THE ADDITION MADE BY THE AO IN ITA NO.419/AHD/2011. THE ITAT HAS ALLOWED THE APPEAL O F THE ASSESSEE VIDE ORDER DATED 12.9.2013 AND REMITTED THE ISSUE TO THE FILE OF THE LD.CIT(A) BY OBSERVING AS UNDER: 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIAL ON RECORD. WE FIND THAT BEFORE US LD. A.R. HAS CHALLEN GED THE ASSESSMENT ORDER PASSED BY THE A.O U/S. 143(3) TO BE NULLITY IN THE EYES OF LAW AS THE SAME IS UNSIGNED AND WITHOUT THE SEAL OF THE A.O. WE ALSO F IND THAT THIS GROUND WAS NOT RAISED BEFORE THE CIT(A) AND IS RAISED BEFORE U S FOR THE FIRST TIME. WE ARE OF THE VIEW THAT THE FACTUAL ASPECT RAISED BY ASSES SEE NEEDS REEXAMINATION . WE THEREFORE REMIT THE ISSUE TO THE FILE OF CIT(A) TO DECIDE THE ISSUE IN ITA NO.2490/AHD/2013 2 ACCORDANCE WITH LAW. SINCE THE FIRST GROUND IS REMI TTED BACK TO CIT(A), THE OTHER GROUNDS RAISED BEFORE US ARE ALSO NOT ADJUDIC ATED AND THEY ARE ALSO REMITTED BACK TO THE FILE OF CIT(A) TO DECIDE IT AF RESH IN ACCORDANCE WITH LAW AND AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESS EE. NEEDLESS TO STATE THAT CIT(A) SHALL GRANT ADEQUATE OPPORTUNITY OF HEARING TO THE BOTH THE PARTIES. THUS ALL THE GROUNDS ARE ALLOWED FOR STATISTICAL PU RPOSES. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. 4. ON STRENGTH OF THIS ORDER, HE CONTENDED THAT ONC E INCOME OF THE ASSESSEE HAS NOT BEEN DETERMINED, THERE COULD NOT B E ANY PENALTY UPON THE ASSESSEE. HE PRAYED THAT IMPUGNED ORDER BE SET ASI DE AND THIS ISSUE MAY ALSO BE RESTORED TO THE FILE OF THE LD.CIT(A). THE LD.D R, ON THE OTHER HAND, RELIED UPON THE ORDER OF THE REVENUE AUTHORITIES. 5. I HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GON E THROUGH THE RECORD CAREFULLY. THE QUANTIFICATION OF PENALTY IS DEPEN DED UPON THE ADDITIONS. UPTO AND UNTIL INCOME OF THE ASSESSEE IS NOT DETERM INED, IT CANNOT BE HELD THAT THE ASSESSEE HAS EVADED TAX QUA ADDITIONS MADE TO HIS INCOME. THEREFORE, I ALLOW THIS GROUND OF APPEAL AND SET ASIDE IMPUGNED ORDER AND RESTORE THE ISSUE REGARDING LEVY OF PENALTY TO THE FILE OF THE LD.CIT (A) FOR RE-CONSIDERATION. THE LD.CIT(A) SHALL DISPOSE OF THE ISSUE OF IMPOSIT ION OF PENALTY AFTER ADJUDICATION OF THE QUANTUM APPEAL. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 1 ST AUGUST, 2016 AT AHMEDABAD. SD/- (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 01/08/2016