Shri Harshit P.Acharya-HUF, Ahmedabad V. The Income tax Officer,Ward-9(3), Ahmedabad

ITA 2590/AHD/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6576 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 8 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 02-05-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 15-09-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G M CHAUHAN
• Assessee Lawyers: S N DIVATIA
• Keywords: Gift

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C BEFORE SHRI G.D. AGARWAL, VICE-PRESIDENT (AZ) AND SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER DATE OF HEARING : 2/5/11 DRAFTED ON:2/5/11 ITA NO.2590/AHD/2009 ASSESSMENT YEAR : 2004-05 HARSHIT P ACHARYA HUF 36/37,HARSHIDDH CHAMBERS ASHRAM ROAD AHMEDABAD VS. THE INCOME TAX OFFICER WRD-9(3) AHMEDABAD PAN/GIR NO. : AACHH 1646 F (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI S.N. DIVATIA RESPONDENT BY: SHRI G.M. CHAUHAN, D.R. O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL AT THE BEHEST OF THE ASSESSEE WHICH HAS EMANATED FROM THE ORDER OF LEARNED CIT(APPEALS)-XV, AHMEDABAD DATED 23/07/2009 AGAINST THE CONFIRMATION OF PENALT Y LEVIED U/S.271(1)(C) OF THE I.T.ACT OF RS.5,39,100/-. 2. AT THE OUTSET, PARTIES APPEARING BEFORE US HAVE INFORMED THAT IN THE QUANTUM APPEAL OF THE ASSESSEE BEARING ITA NO.701/A HD/2008 (A.Y. 2004-05) ORDER DATED 01/10/2010 TITLED AS HARSHIT P.ACHARYA (HUF) VS. ITO, THE MATTER WAS RESTORED BACK TO THE FILE OF A SSESSING OFFICER TO DECIDE DE NOVO AS PER THE DIRECTIONS; RELEVANT PARAGRAPH REPRODUCE D BELOW:- ITA NO 2590/AHD/2009 HARSHIT P.ACHARYA (HUF) VS. ITO ASST.YEAR 2004-05 - 2 - 6. HAVING HEARD BOTH THE SIDES, WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IT IS PERTINENT T O NOTE THAT THE DONOR, NAMELY DR. SHOBHANA ALIAS DR. SONIYA PATEL, AT THE RELEVANT TIME WAS PRACTICING AS AYURVEDIC DOCTOR SE TTLED IN USA. NOW SHE HAS SHIFTED TO INDIA. IT APPEARS THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE IN PROCURING REQUIRED INFORMATION FROM THE DONOR, NAMELY DR.SHOBHANA ALIA DR. SONIYA PATEL SETTLED IN USA AND NOW THE LD. COUNSEL OF THE ASSESSEE ASSU RED THAT NOT ONLY ALL THE INFORMATION SHALL BE FURNISHED BUT THE DONOR WILL ALSO BE PRODUCED FOR CROSS EXAMINATION. IN VIEW OF THIS , WE ARE OF THE VIEW THAT IT WILL MEET THE END OF JUSTICE IF THE IM PUGNED ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS SET ASIDE AND THE ASSESSING OFFICER IS DIRECTED TO RE-ADJUDICATE THE ACTION OF RS.16,38,001/- AFRESH IN ACCORDANCE WITH LAW. BEFO RE PARTING WITH THIS, THE ASSESSEE SHALL FURNISH ALL THE REQUIRED D ETAILS AND ALSO PRODUCE THE DONOR NAMELY DR.SHOBHANA ALIAS DR. SONI YA PATEL FOR CROSS EXAMINATION. IN CASE, THE ASSESSEE FAILED TO PRODUCE THE REQUIRED DETAILS OR THE DONOR, THE ASSESSING OFFICE R IS ALSO AT LIBERTY TO TAKE ADVERSE VIEW AS HE MAY DEEM FIT IN ACCORDANCE WITH LAW. 3. SINCE THE QUESTION OF ASSESSABILITY OF GIFT IN T HE HANDS OF THE ASSESSEE HAS NOW BEEN RESTORED BACK TO THE FILE OF ASSESSING OFFICER, THEREFORE IN CONSEQUENCE THEREOF THE IMPUGNED PENAL TY AT PRESENT DO NOT SURVIVE BECAUSE THE QUANTUM ADDITION IS YET TO BE A SCERTAINED. ONCE THE QUANTUM APPEAL HAS BEEN RESTORED BY THE RESPECTED T RIBUNAL FOR DE NOVO CONSIDERATION SPECIALLY CONSIDERING THE FACT THAT T HE IMPUGNED ASSESSMENT ORDER OF THE ASSESSING OFFICER REQUIRE REINVESTIGAT ION, THEREFORE, IN THE MEANTIME, THE QUESTION OF LEVY OF PENALTY NEED NOT TO BE ADJUDICATED AND TO BE DECIDED ON THE LINES OF THE OUTCOME OF THE AS SESSMENT YET TO BE FRAMED AS PER THE DIRECTIONS OF THE TRIBUNAL SUPRA. FOR THIS LEGAL PROPOSITION THAT THE QUANTUM IS YET TO BE DECIDED A ND THEN IT IS JUDICIOUS TO DECIDE THE QUESTION OF LEVY OF PENALTY, WE HEREB Y PLACE RELIANCE ON THE DECISION OF HON'BLE ALLAHABAD HIGH COURT IN THE CAS E OF RADHEY SHYAM ITA NO 2590/AHD/2009 HARSHIT P.ACHARYA (HUF) VS. ITO ASST.YEAR 2004-05 - 3 - JAISWAL VS. INCOME TAX APPELLATE TRIBUNAL & ANR. REPORTED AT [1992] 198 ITR 623 (ALL.), IN THE CASE OF ADDL.CIT VS. BADRI PRASAD KASHI PRASAD REPORTED AT [1993] 200 ITR 206 (ALL.) AND DE CISION OF HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VS. R.HARIKRIS HNA NADAR REPORTED AT [1995]216 ITR 65 (MAD.), WHERE ADDITION IS ITSEL F DOUBTFUL REQUIRING REMAND FOR FURTHER ENQUIRY AS REGARDS THE MERITS OF THE CASE. IT IS APPROPRIATE NOT TO PRE-JUDGE THE ISSUE OF LEVY OF P ENALTY AND IT IS JUSTIFIABLE TO REMIT FOR RE-CONSIDERATION. FOR THI S PROPOSITION, WE REFER THE DECISION OF HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VS. COROMANDAL INDAG PRODUCTS (P) LTD. REPORTED AT [200 3] 260 ITR 289 (MAD.). THEREFORE, THE ENTIRE ISSUE EN BLOC IS RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER TO BE DECIDED DE NOVO AS PER LAW. AD INTERIM THE PENALTY IS HEREBY QUASHED BUT THE ASSESSING OFF ICER IS AT LIBERTY TO DECIDE EX MERO MOTU AS PER LAW. GROUND OF THE ASSESSEE MAY BE TREATE D AS ALLOWED BUT FOR STATISTICAL PURPOSES. 4. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES AS PER THE DIRECTIONS PRO TANTO. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 20/ 05 /2011. SD/- SD/- ( G.D. AGARWAL ) ( MUKUL KR. SHRAWAT ) VICE PRESIDENT (AZ) JUDICIAL ME MBER AHMEDABAD; DATED 20 / 05 /2011 T.C. NAIR, SR. PS ITA NO 2590/AHD/2009 HARSHIT P.ACHARYA (HUF) VS. ITO ASST.YEAR 2004-05 - 4 - COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE DEPARTMENT. 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-XV, AHMEDABAD 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD 1. DATE OF DICTATION..2/5/11 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 2/5/11 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S 20/05/11 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 20/05/11 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER