Shri Nimesh Hashmukhlal Shah, Ahmedabad V. The Asstt. Commissioner of Income Tax, Central Circle-2(4), Ahmedabad

ITA 3347/AHD/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5680 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-07-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 13-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAGDISH
• Assessee Lawyers: ANKIT TALSANIA
• Section: 142(1); 153A; 132; 15

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER , .., SN ITA NO. AY APPELLANT RESPONDENT 1-7 3344 TO 3350/AHD/2016 2007-08 TO 2013-14 SHRI NIMESH H. SHAH, M/18, SANSKRUT APARTMENT, NR. ALKAPURI SOCIETY, GHATLODIYA, AHMEDABAD PAN : AHZPS 0504 M ACIT, CENTRAL CIRCLE-2(4), AHMEDABAD ASSESSEE BY : SHRI ANKIT TALSANIA, AR REVENUE BY : SHRI JAGDISH, CIT-DR / DATE OF HEARING : 13/07/2017 # % / DATE OF PRONOUNCEMENT: 28/07/2017 / O R D E R PER BENCH : THE PRESENT SEVEN APPEALS ARE DIRECTED AT THE INSTA NCE OF THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A)-13, AH MEDABAD DATED 07.09.2016 PASSED FOR ASSESSMENT YEARS 2007-08 TO 2 013-14. THESE APPEALS HAVE ARISEN OUT AGAINST ASSESSMENT PROCEEDINGS UNDE RTAKEN UNDER SECTION 143(3)/144 R.WS. 153A OF THE INCOME-TAX ACT, 1961 ( HEREINAFTER REFERRED TO AS THE ACT). 2. IT IS PERTINENT TO OBSERVE THAT A SEARCH UNDER S ECTION 132 OF THE ACT WAS CARRIED OUT IN THE GROUP CASES OF INDIA GREEN R EALITY PVT. LTD. ON 15.03.2013. THE ASSESSEE WAS ALSO COVERED UNDER TH E SEARCH ALONG WITH OTHER CASES OF THE GROUP. NOTICES UNDER SECTION 15 3A OF THE ACT WERE ISSUED ON 28.10.2013, REQUIRING THE ASSESSEE TO FIL E THE RETURNS OF INCOMES ITA NOS. 3344 TO 3350/AHD/2016 SHRI NIMESH HASHMUKHLAL SHAH VS. ACIT AYS : 2007-08 TO 2013-14 - 2 FOR ASSESSMENT YEARS 2007-08 TO 2012-13. ACCORDING TO ASSESSING OFFICER, THE ASSESSEE DID NOT FILE THE RETURNS. IN ASSESSME NT YEAR 2013-14, THE ASSESSMENT PROCEEDINGS WERE INITIATED WITH THE ISSU ANCE OF NOTICES UNDER SECTION 142(1) OF THE ACT. SINCE THE ASSESSEE FAIL ED TO COMPLY WITH THE NOTICES, LD. ASSESSING OFFICER HAS PASSED EX-PARTE ASSESSMENT ORDERS AND THE APPEALS WERE ALSO DISMISSED FOR WANT OF PROSECU TION. 3. ALONG WITH THESE QUANTUM APPEALS, WE HAVE HEARD THE APPEALS OF THE ASSESSEE BEARING ITA NO.2535 TO 2541/AHD/2017 A ND 3530 TO 3536/AHD/2016. UNDER THESE APPEALS, THE ASSESSEE H AS CHALLENGED THE LEVY OF PENALTY UNDER SECTION 271(1)(B) OF THE ACT FOR NON-COMPLIANCE OF THE NOTICES. WE HAVE CONFIRMED THE PENALTY WITH REG ARD TO NON- COMPLIANCE OF NOTICE ISSUED UNDER SECTION 271(1)(B) OF THE ACT DATED 14.10.2014, I.E., ITA NO. 2535 TO 2541/AHD/2016 ST ANDS DISMISSED. TAKING INTO CONSIDERATION THE EX-PARTE PROCEEDINGS AGAINST THE ASSESSEE AND THE ULTIMATE PUNISHMENT IN THE SHAPE OF TAX LIA BILITY VIS--VIS THE NEGLIGENCE CONDUCTED BY THE ASSESSEE, WE ARE OF THE VIEW THAT THE PUNISHMENT IN THE SHAPE OF TAX LIABILITY IS DISPROP ORTIONATE TO THE NEGLIGENCE SHOWN BY THE ASSESSEE. IT IS ALSO PERTI NENT TO OBSERVE THAT SHRI SHANKARBHAI PATEL, ONE OF THE MAIN PERSONS OF THE G ROUP, WAS HANDLING ALL THESE MATTERS. HE WAS NOT KEEPING GOOD HEALTH AND PASSED AWAY ON 03.11.2014. WE ALSO FIND THAT IN SOME OF THE YEAR S, THE ASSESSING OFFICER HAS MADE THE ADDITION WITHOUT SUPPORT OF ANY MATERI AL FOUND DURING THE COURSE OF SEARCH, WHICH, IN VIEW OF THE LATEST DECI SION OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF PR. CIT VS. SAUMY A CONSTRUCTIONS P. LTD., REPORTED IN [2017] 81 TAXMANN.COM 292 (GUJARA T), IS NOT SUSTAINABLE. CONSIDERING THE CUMULATIVE SETTING OF ALL THESE FAC TORS, WE DEEM IT PROPER TO SET ASIDE THE IMPUGNED ORDER AND RESTORE ALL THE SE ISSUES TO THE FILE OF ITA NOS. 3344 TO 3350/AHD/2016 SHRI NIMESH HASHMUKHLAL SHAH VS. ACIT AYS : 2007-08 TO 2013-14 - 3 THE ASSESSING OFFICER FOR FRESH ASSESSMENT ORDERS I N THESE ASSESSMENT YEARS. THE ASSESSEE WILL BE AT LIBERTY TO SUBMIT T HE DETAILS, IF ANY, IN SUPPORT OF HIS EXPLANATION AND THEREAFTER THE LD. A SSESSING OFFICER SHALL DETERMINE THE TAXABLE INCOME OF THE ASSESSEE IN ACC ORDANCE WITH LAW. THE ASSESSEE SHALL CO-OPERATE WITH THE ASSESSING OFFICE R AND ATTEND THE NOTICE ISSUED BY THE ASSESSING OFFICER. 4. IN THE RESULT, ALL THE APPEALS FILED BY THE ASSE SSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 28 TH JULY, 2017 AT AHMEDABAD. SD/- SD/- N.K. BILLAIYA (ACCOUNTANT MEMBER) (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED, 28/07/2017 **BT / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #' / THE RESPONDENT. 3. % ' / CONCERNED CIT 4. ' ) ( / THE CIT(A)- 5. % , % , /DR,ITAT, AHMEDABAD, 6. 1 / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) % ITAT, AHMEDABAD