Pravinaben S.Gandhi, Anand V. The Income tax Officer,Ward-2, Anand

ITA 3119/AHD/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 5985 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 8 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 19-07-2011
• Assessment Year: 1998-1999
• Appeal Filed On: 23-11-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MEENA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BEFORE SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO. 3119/ AHD/2009 (ASSESSMENT YEAR 1998-99) PRAVINABEN S GANDHI, C/O GANDHI PULSE MILLS, PLOT NO.49, VITHAL UDYOG NAGAR, TAL. ANAND VS. ITO, WARD 2, ANAND PA NO. : 31-607-PQ-68432 (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI BANDISH SOPARKAR, AR RESPONDENT BY: SHRI S. K. MEENA, SR. DR O R D E R PER SHRI A. K. GARODIA, AM:- THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORD ER OF LD. CIT(A) IV, BARODA DATED 03.09.2009 FOR THE ASSESSMENT YEAR 199 8-99. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1. LEARNED CIT (A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE PENALTY IMPOSED U/S 271 (1) (C) OF T HE ACT BY AO OF RS. 2,02, 500/- ON ADDITION MADE ON SUBSTANTIVE BAS IS OF NOTIONAL LONG TERM CAPITAL GAINS BY APPLYING PROVISIONS OF S ECTION 45 (3) OF THE ACT. THE ADDITION BEING WITHOUT ANY MERITS AND JUSTIFICATION IS PENDING FOR ADJUDICATION BEFORE THE HON'BLE ITAT. B OTH THE LOWER AUTHORITIES HAVE FAILED TO APPRECIATE THE FACT THAT THE APPELLANT HAS NEITHER FURNISHED INACCURATE PARTICULARS NOR CONCEA LED ANY INCOME. THE PENALTY LEVIED BEING WITHOUT ANY MERITS AND JUS TIFICATION REQUIRES TO BE QUASHED. I.T.A.NO.3119 /AHD/2009 2 THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER, ED IT, DELETE, MODIFY OR CHANGE ALL OR ANY OF THE GROUNDS OF APPEAL AT THE T IME OF OR BEFORE THE HEARING OF THE APPEAL. 2. IT IS SUBMITTED BY THE LD. A.R. THAT IN QUANTUM PROCEEDINGS, THE TRIBUNAL HAS RESTORED BACK THE MATTER TO THE FILE O F LD. CIT(A) FOR A FRESH DECISION AND HE SUBMITTED A COPY OF THE TRIBUNAL OR DER IN I.T.A. NO. 1801/AJHD/2006 DATED 25.03.2010. IT IS SUBMITTED B Y HIM THAT SINCE THE ISSUE REGARDING QUANTUM ADDITION HAS BEEN SET ASIDE BY THE TRIBUNAL AND RESTORED TO THE FILE OF LD. CIT(A), THE PENALTY ISS UE SHOULD ALSO BE RESTORED BACK TO THE FILE OF LD. CIT(A) FOR A FRESH DECISION . 3. LD. D.R. OF THE REVENUE SUPPORTED THE ORDERS OF AUTHORITIES BELOW. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW. WE FIND THAT THE PENALTY HAS BEEN IMPOSED BY THE A.O. ON THE ALL EGED CONCEALED INCOME OF RS.6.75 LACS. IN QUANTUM PROCEEDINGS, THIS VERY ISSUE WAS BEFORE THE TRIBUNAL REGARDING THE ADDITION MADE BY THE A.O. OF RS.6.75 LACS. IN QUANTUM PROCEEDINGS, THE TRIBUNAL HAS RESTORED BACK THE MATER TO THE FILE OF THE CIT(A) FOR A FRESH DECISION IN ACCORDANCE WITH LAW. UNDER THIS FACTUAL POSITION, WE FEEL THAT THE PENALTY MATTER SHOULD AL SO GO BACK TO THE FILE OF LD. CIT(A) FOR A FRESH DECISION EITHER SIMULTANEOUSLY W ITH THE DECISION IN QUANTUM PROCEEDINGS OR IN THE LIGHT OF SUCH DECISIO N IN QUANTUM PROCEEDINGS IF LD. CIT(A) HAS ALREADY DISPOSED OFF THE MATTER I N QUANTUM PROCEEDINGS AS PER THE DIRECTIONS OF THE TRIBUNAL. WE, THEREFORE, SET AIDE THE ORDER OF LD. CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE FOR A FRESH DECISION. IF NO ORDER HAS BEEN PASSED BY LD. CIT(A) IN QUANTUM PRO CEEDINGS, AS PER THE DIRECTIONS OF THE TRIBUNAL IN ITS ORDER DATED 25.03 .2010 THEN HE SHOULD DECIDE BOTH THE ISSUES I.E. QUANTUM ADDITION AND PENALTY T OGETHER AND IF HE HAS ALREADY DECIDED THE ISSUE IN QUANTUM PROCEEDINGS AS PER THE TRIBUNAL I.T.A.NO.3119 /AHD/2009 3 DIRECTION THEN HE SHOULD DECIDE THE PENALTY ISSUE A FRESH IN THE LIGHT OF HIS DECISION IN QUANTUM PROCEEDINGS. NEEDLESS TO SAY, HE SHOULD PASS NECESSARY ORDERS AS PER LAW AFTER PROVIDING ADEQUATE OPPORTUN ITY OF BEING HEARD TO BOTH SIDES. 5. IN THE RESULT, APPEAL OF THE ASSESSEE STANDS ALL OWED FOR STATISTICAL PURPOSES. 6. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH JULY 2011. SD./- SD./- (MUKUL KUMAR SHRAWAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED : 29 TH JULY, 2011 SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD 6. THE GUARD FILE 1. DATE OF DICTATION 21/7 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 25/7 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 27/7 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 29/7 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S. 29/7 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 29/7/11 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. ..