Vasant R.Chheda, Valsad V. The ACIT.,Valsad Circle, Valsad

ITA 386/AHD/2008

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 9793 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-09-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 20-09-2010
• Assessment Year: 1998-1999
• Appeal Filed On: 01-02-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K M MAHESH
• Keywords: Difference of opinion; Change of opinion
• Section: 205

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI N.S. SAINI, ACCOUNTANT MEMBER DATE OF HEARING : 20/09/2010 DRAFTED ON: 21 /09/2010 ITA NO.386/AHD/2008 ASSESSMENT YEAR : 1998-99 SHRI VASANT R. CHHEDA PROP.M/S.JUPITER ENTERPRISES 302, BINA PARK, THITHAL ROAD VALSAD 396 001 VS. THE ASSTT.CIT VALSAD CIRCLE VALSAD PAN/GIR NO. : AANPC 9683 L ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : MS. URVASHI SHODHAN RESPONDENT BY: SHRI K.M. MAHESH, SR. D.R. O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL AT THE BEHEST OF THE ASSESSEE WH ICH HAS EMANATED FROM THE ORDER OF LEARNED CIT(APPEALS)-VAL SAD DATED 25/10/2007 PASSED FOR ASSESSMENT YEAR 1998-99 CONFIRMING THE L EVY OF PENALTY U/S.271(1)(C) OF THE I.T. ACT, 1961. 2. AS PER THE CORRESPONDING PENALTY ORDER PASSED U/ S.271(1)(C) OF THE I.T. ACT, 1961 DATED 10/05/2007 AND THE ASSESSMENT ORDER PASSED U/S.143(3) R.W.S. 147 OF THE I.T. ACT, 1961 DATED 2 9/03/2006 FOR ASSESSMENT YEAR 1998-99, IT HAS BEEN BROUGHT TO OUR NOTICE THAT THE PENALTY IN QUESTION HAS EMERGED FROM THE IMPUGNED O RDER THROUGH WHICH THE PROCEEDINGS HAVE BEEN REOPENED, REFERRED HEREIN ABOVE. NOW BEFORE US, AN ORDER OF THE ITAT AHMEDABAD B BENCH BEARIN G ITA ITA NO.386/AHD/ 2008 SHRI VASANT R. CHHEDA VS. ASST.CIT ASST.YEAR - 1998-99 - 2 - NOS.1964/AHD/2003 AND ITA NO.2352/AHD/2006, DATED 0 5/02/2010 FOR ASSESSMENT YEAR 1998-99 IN ASSESSEES OWN CASE IS P LACED. IT HAS BEEN CLARIFIED BY THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE THAT ITA NO.2352/AHD/2006 (FOR A.Y. 1998-99) WAS THE APP EAL AGAINST THE RE-OPENING OF THE ASSESSMENT. THE RESPECTED CO-ORD INATE BENCH VIDE PARAGRAPH NO.11 HAS BEEN QUASHED THE REOPENED ASSES SMENT; FOR READY REFERENCE REPRODUCED BELOW:- 11. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND P ERUSED THE MATERIAL ON RECORD. IN OUR CONSIDERED VIEW THERE IS NO JUSTIFICATION FOR REOPENING OF THE ASSESSMENT. IT IS BECAUSE ALL THE FACTS ARE AVAILABLE ON THE RECORD. THERE IS NO ALLEGATION AS TO WHAT ASSESSEE HAS NOT DISCLOSED. THE AO HAD ALREADY APPLIED HIS M IND DURING THE ORIGINAL ASSESSMENT PROCEEDINGS. HE HAD ORIGINALLY TAKEN THE VALUE AT RS.12,56,771/- AS HAVING BEEN RECEIVED FRO M M/S PILOT PLASTICS BUT LATER CHANGED TO RS.9,31,974/- AND HEN CE HE HAD CONSIDERED THE DETAILS AND CAME TO THE CONCLUSION T HAT M/S PILOT PLASTICS HAD SENT GOODS WORTH RS.9,31,974/-. WHAT T HE AO NOW AFTER FOUR YEARS DOING IS ONLY CHANGE OF OPINION ON THE SAME SET OF FACTS. ONCE THERE IS NO ALLEGATION THAT THERE IS AN Y OMISSION OR FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE ANY MATERIAL FACT NECESSARY FOR THE ASSESSMENT WHICH WAS ORIGINALLY D ISCLOSED BY THE ASSESSEE, THEN REOPENING AFTER FOUR YEARS CANNOT BE JUSTIFIED. OUR VIEW IS SUPPORTED BY FOLLOWING DECISIONS:- (1) M/S BHAVESH DEVELOPERS, MANSAROVAR BUILDING, KA NDIVELI, MUMBAI VS. CIT WRIT PETITION NO.2508 OF 2009 PRONO UNCED ON 12 TH JANUARY, 2010, BOMBAY HIGH COURT. (2) CIT VS. JAY MICA SUPPLY CO. (P) LTD. (1994) 205 ITR 387 (CAL). (3) ITO VS. LAKHMANI MEWALDAS (1976) 103 ITR 437 (S C). (4) DHANRAJ SINGH AND CO. VS. CIT (1996) 218 ITR 3 12 (PATNA). (5) CIT VS. CHANDBALL RICE MILL (P) LTD. (1993) 203 ITR 368 (CAL). ITA NO.386/AHD/ 2008 SHRI VASANT R. CHHEDA VS. ASST.CIT ASST.YEAR - 1998-99 - 3 - 3. ONCE THE SAID ASSESSMENT FROM WHICH THE PENALTY IN QUESTION HAS EMANATED IS NO MORE IN EXISTENCE AND THE ENTIRE RE- OPENED PROCEEDINGS HAVE BEEN QUASHED, THEREFORE, IN CONSEQUENCE THEREO F THE PRESENT CONCEALMENT PENALTY SHALL NOT SURVIVE. WE ORDER A CCORDINGLY. THE PENALTY IS, THEREFORE, CANCELLED. THUS, GROUNDS R AISED BY THE ASSESSEE ARE ALLOWED. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 24/ 09 /2010. SD/- SD/- ( N.S. SAINI ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEM BER AHMEDABAD; DATED 24 / 09 /2010 T.C. NAIR, SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE DEPARTMENT. 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-VALSAD 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD ITA NO.386/AHD/ 2008 SHRI VASANT R. CHHEDA VS. ASST.CIT ASST.YEAR - 1998-99 - 4 - 1. DATE OF DICTATION.. 20/.09/2010 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 21/09/2010 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 22/09/10 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 24/09/10 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