Shri Nilesh R.Pandya, Ahmedabad V. The Jt.CIT.,(OSD)Circle-11, Ahmedabad

ITA 2593/AHD/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 85659 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 22-01-2015
• Assessment Year: 2000-2001
• Appeal Filed On: 09-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Assessee Lawyers: S N DIVATIA
• Keywords: Gift

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD , , BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ I.T.A. NO.2593/AHD/2012 ( / ASSESSMENT YEAR : 2000-01) NILESH R.PANDYA 22, DUTT SOCIETY ANAND NAGAR PALDI, AHMEDABAD-380 007 / VS. THE JCIT (OSD) CIRCLE-11 AHMEDABAD ' ./ ./ PAN/GIR NO. : AAYPP 7274 P ( '% / APPELLANT ) .. ( &''% / RESPONDENT ) '%( / APPELLANT BY : SHRI S.N. DIVATIA, AR &''%)( / RESPONDENT BY : SHRI M.K. SINGH, SR.DR *) / DATE OF HEARING 22/01/2015 +,-.) / DATE OF PRONOUNCEMENT 12/02/2015 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-XVI, AHMEDAB AD (CIT(A) IN SHORT) DATED 16/07/2012 PERTAINING TO ASSESSMEN T YEAR (AY) 2000-01. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL:- 1) THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS ERRONEOUS AND BAD IN LAW AND ON THE FACTS OF THE CA SE. ITA NO.2593/AHD /2012 NILESH R. PANDYA VS. JCIT (OSD) ASST.YEAR 2000-01 - 2 - 2) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HA S WRONGLY CONFIRMED PENALTY LEVIED BY THE ASSESSING OFFICER O N ACCOUNT OF ADDITION MADE FOR GIFT RECEIVED BY THE ASSESSEE FRO M NRI OF RS.14,55,772/-, ADDITION ON ACCOUNT OF NOTIONAL REN T ON SELF OCCUPIED PROPERTY OF RS.45,000/- AND DISALLOWANCE O F INTEREST EXP. OF RS.13,50,260/- FROM SHORT TERM CAPITAL GAIN. 3) THE APPELLANT GRAVES TO ADD, ALTER OR MODIFY THE AF ORESAID GROUNDS. 2. THE ASSESSEE HAS ALSO FILED ADDITIONAL GROUNDS OF APPEAL WHICH READ AS UNDER:- 3.1. THE LD.CIT(A) OUGHT TO HAVE APPRECIATED THAT THE ORDER IMPOSING PENALTY U/S.271(1)(C) WAS WHOLLY ILLEGAL AND UNLAWF UL FOR THE REASON THAT THE ORDER GIVING EFFECT TO THE ORDER OF HONBL E TRIBUNAL AND THE PENALTY ORDER ARISING FROM/INITIATED FROM THE SAME ORDER BOTH WERE PASSED SIMULTANEOUSLY ON 30/03/2011. 3.2. THE LD.CIT(A) OUGHT NOT TO HAVE APPRECIATED TH AT IN CASE THE PENALTY PROCEEDINGS AND CONSEQUENTIAL ORDER IMPOSIN G PENALTY ON 31/3- 2011 WERE CONSIDERED AS ARISING OUT OF THE ORIGINAL ORDER OF ASSESSMENT PASSED ON 28.03.2003, THE SAME WERE TIME BARRED U/S .275(1). 3.3. IT IS THEREFORE PRAYED THAT THE PENALTY IMPOS ED BY AO AND CONFIRMED BY CIT(A) MAY PLEASE BE DELETED. 3. BRIEFLY STATED FACTS ARE THAT THE CASE OF THE A SSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMENT U/S.143( 3) OF THE INCOME TAX ACT,1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED VIDE ORDER DATED 28/02/2003, THEREBY THE ASSESSING OFFICER (AO IN SHORT) MADE VARIOUS ADDITIONS AND INITIATED PENALTY PROCEEDINGS U/S.271(1)(C) OF THE ACT. IN THE QUANTUM PROCEEDINGS, THE MATTER TRAVEL LED UPTO THE STAGE OF TRIBUNAL AND THE TRIBUNAL (ITAT A BENCH AHMEDABAD ) IN ITA ITA NO.2593/AHD /2012 NILESH R. PANDYA VS. JCIT (OSD) ASST.YEAR 2000-01 - 3 - NO.894/AHD/2004 FOR AY 2000-01 VIDE ITS ORDER DATED 13/10/2010 PARTLY ALLOWED THE APPEAL FOR STATISTICAL PURPOSES. HOWEV ER, WHILE ALLOWING THE ASSESSEES APPEAL, THE TRIBUNAL CONFIRMED THE ADDIT ION MADE ON ACCOUNT OF GIFTS OF RS.14,55,772/-. IN RESPECT OF THE ADDI TION MADE ON ACCOUNT OF THE INTEREST PAYMENT OF RS.13,76,660/-, THE ISSUE W AS RESTORED TO THE FILE OF AO TO CALCULATE THE INTEREST ON A SUM OF RS.7,54 ,800/-. THE AO PASSED AN ORDER DATED 31/03/2011 IN PURSUANCE TO TH E ORDER OF THE TRIBUNAL IN QUANTUM PROCEEDINGS. SIMULTANEOUSLY, T HE AO ALSO PASSED AN ORDER DATED 31/03/2011 U/S.271(1)(C) OF THE ACT, THEREBY THE AO LEVIED A PENALTY OF RS.13,36,758/- ON THE CONCEALED INCOME OF RS.13,50,260/-. 4. DURING THE COURSE OF HEARING, THE LD.COUNSEL FOR THE ASSESSEE FILED AN ADDITIONAL GROUND AND SUBMITTED THAT IMPOSING PE NALTY IS NOT ONLY BAD IN LAW BUT ALSO BARRED BY TIME. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS GROUND WAS NOT TAKEN BEFORE THE LD.CIT(A) . HE SUBMITTED THAT THIS BEING THE LEGAL GROUND MAY BE ADMITTED FOR ADJ UDICATION. THE LD.COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT THE ORDERS OF THE AUTHORITIES BELOW VITIATED BY ARBITRARYNESS. HE PO INTED OUT THAT THE ASSESSMENT ORDER WAS PASSED ON 28/03/2003 AND ON 16 /01/2004, THE LD.CIT(A) CONFIRMED THE ADDITIONS. ON 13/10/2010 I N QUANTUM PROCEEDINGS, THE TRIBUNAL PASSED AN ORDER IN ASSESS EES APPEAL BEARING ITA NO.894/AHD/2004 FOR AY 2000-01. HE SUBMITTED THAT ON ITA NO.2593/AHD /2012 NILESH R. PANDYA VS. JCIT (OSD) ASST.YEAR 2000-01 - 4 - 31/03/2011, THE AO PASSED AN ORDER GIVING EFFECT TO THE ORDER PASSED BY THE TRIBUNAL. HE SUBMITTED THAT ON 31/03/2011, THE ORDER LEVYING PENALTY WAS PASSED AND THE SAME ORDER WAS CONFIRMED BY LD.C IT(A) ON 16/07/2012. HE SUBMITTED THAT THE PENALTY WERE INI TIATED AND CONCLUDED EVEN BEFORE THE ORDER GIVING EFFECT TO THE ORDER OF THE TRIBUNAL. HE SUBMITTED THAT THE PENALTY PROCEEDINGS WERE INITIAT ED IN RESPECT OF THE ASSESSMENT ORDER DATED 28/03/2003. THIS ORDER WAS CONFIRMED BY CIT(A) ON 16/01/2004. FROM THESE FACTS, LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE PENALTY AS IMPOSED IS NOT ONLY B ARRED BY TIME ALSO VITIATED BY NON-AFFORDING THE OPPORTUNITY TO THE AS SESSEE. HE SUBMITTED THAT IT IS SETTLED PRINCIPLE OF LAW THAT THE PENALT Y PROCEEDINGS AND THE ASSESSMENT PROCEEDINGS ARE TWO DIFFERENT AND DISTIN CT PROCEEDINGS. THE PENALTY CANNOT BE LEVIED IN A MECHANICAL MANNER. 4.1. ON THE CONTRARY, LD.SR.DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND ADOPTED THE ARGUMENTS OF THE AO. HE SUBM ITTED THAT THERE IS NO ILLEGALITY INTO THE ORDERS OF THE AUTHORITIES BE LOW. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. DURING THE COURSE OF HEARING, THE LD.COUNSEL FOR TH E ASSESSEE HAS RAISED ADDITIONAL GROUNDS (REPRODUCED ABOVE). ADMITTEDLY, THE ABOVE ADDITIONAL GROUNDS WERE NOT RAISED BEFORE THE LD.CIT(A). SINC E THE GROUND IS ITA NO.2593/AHD /2012 NILESH R. PANDYA VS. JCIT (OSD) ASST.YEAR 2000-01 - 5 - RELATED TO THE QUESTION OF LIMITATION, THEREFORE TH E SAME BEING LEGAL GROUND IS HEREBY ADMITTED FOR ADJUDICATION. FOR A DJUDICATION OF THIS GROUND, VERIFICATION FROM RECORDS OF REVENUE IS NEE DED. THEREFORE, THE ISSUE IS RESTORED BACK TO THE FILE OF LD.CIT(A). A CCORDINGLY, THE ADDITIONAL GROUND RAISED BY THE ASSESSEE IS RESTORE D TO THE FILE OF LD.CIT(A) FOR DECIDING THE ISSUE AFTER VERIFYING TH E RECORD AND GIVING AN OPPORTUNITY OF HEARING TO CONCERNED PARTIES. THE L D.CIT(A) WOULD DECIDE THE ISSUE OF LIMITATION WITHIN TWO MONTHS FR OM THE RECEIPT OF THIS ORDER. IN CASE, THE ASSESSEE SUCCEEDS ON THIS GROU ND, LD.CIT(A) WOULD DELETE PENALTY BEING TIME-BARRED. IT IS CLARIFIED THAT WE HAVE NOT EXPRESSED OUR OPINION ABOUT THE MERIT OF THE CASE. THEREFORE, OTHER GROUNDS ARE NOT BEING ADJUDICATED. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES AS DISCUSSED ABOVE. ORDER PRONOUNCED IN THE COURT ON THURSDAY, THE 12 TH DAY OF FEBRUARY, 2015 AT AHMEDABAD. SD/- SD/- ( ) ( ) ( ANIL CHATURVEDI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 12/ 02 /2015 2..,.../ T.C. NAIR, SR. PS ITA NO.2593/AHD /2012 NILESH R. PANDYA VS. JCIT (OSD) ASST.YEAR 2000-01 - 6 - !'#$%&' &$ / COPY OF THE ORDER FORWARDED TO : 1. '% / THE APPELLANT 2. &''% / THE RESPONDENT. 3. 345 6 / CONCERNED CIT 4. 6 ( ) / THE CIT(A)-XVI, AHMEDABAD 5. 78& 45 , 45. , 3 / DR, ITAT, AHMEDABAD 6. 8:;<* / GUARD FILE. ! / BY ORDER, '7 & //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 4.2.15 (DICTATION-PAD 10- P AGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 5.2.15 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.12.2.15 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 12.2.15 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER