Smt. Zabuben Prabhatbhai Desai, Ahmedabad V. The Income Tax Officer, Ward-5(2)(4), Ahmedabad

ITA 410/AHD/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5597 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 11-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALIT P JAIN
• Keywords: Capital Gains
• Section: 271(1)(c); 143(3); 274; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI WASEEM AHMED, ACCOUNTANT MEMBER) ) ITA. NOS: 410 & 411/AHD/2019 (ASSESSMENT YEAR: 2007-08) SMT. ZABUBEN DESAI AND SMT. RINABEN NISHITBHAI DESAI, 2, KAILASH SOCIETY, B/H. H.K. HOUSE, ASHRAM ROAD, AHMEDABAD V/S INCOME TAX OFFICER, WARD- 5 (2)(4), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AAPPD 7928M APPELLANT BY : SHRI SAKAR SHARMA, AR RESPONDENT BY : SHRI LALIT P. JAIN, SR. D.R. ( )/ ORDER DATE OF HEARING : 21 -08-201 9 DATE OF PRONOUNCEMENT : 11-09-2019 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. THESE TWO APPEALS FILED BY THE ASSESSEE ARE DIRECTE D AGAINST THE ORDER OF THE LD. CIT(A)-5, AHMEDABAD DATED 28.01.2019 ARISING OU T OF PENALTY ORDER DATED ITA NOS. 410 & 411/AHD/2019 . A.Y. 2007-0 8 2 05.03.2018. SINCE ISSUES AND ASSESSMENT YEARS ARE C OMMON, THEREFORE, FOR THE SAKE OF CONVENIENCE, WE WOULD LIKE TO DISPOSE OF BO TH THE APPEALS BY WAY OF A COMMON ORDER. 2. IN BOTH THE APPEAL, ASSESSEE HAS CHALLENGED THAT TH E LD. CIT(A) ERRED ON FACTS AND IN LAW IN CONFIRMING THE PENALTY U/S. 271(1)(C) AMOUNTING TO RS. 31,25,210/-. 3. FACTS OF THE CASE ARE THAT APPELLANTS ARE INDIVIDUA L DERIVING INCOME FROM LONG TERM CAPITAL GAINS AS WELL AS INCOME FROM OTHER SOU RCES. APPELLANTS FURNISHED RETURN OF INCOME ON 25.03.2008 DECLARING TOTAL INCO ME OF RS. 70 AND 60 RESPECTIVELY. THEREAFTER ASSESSMENT U/S. 143(3) R.W .S. 147 WAS COMPLETED ON 31.03.2015 RESULTING INTO ADDITION OF RS. 1,40,69,3 76/- AND 1,40,69,436/- RESPECTIVELY. THE LD. ASSESSING OFFICER ALSO INITIA TED PENALTY PROCEEDING U/S. 271(1)(C) READ WITH SECTION 274 OF THE ACT. 4. THEREAFTER IN APPEAL BEFORE THE LD. CIT(A) HE CONFI RMED THE ACTION OF THE ASSESSING OFFICER AND CONFIRMED PENALTY. 5. AT THE OUTSET, LD. A.R. SHRI SAKAR SHARMA FILED AN ORDER OF CO-ORDINATE BENCH IN ASSESSEES OWN CASE WHEREIN IN QUANTUM PROCEEDIN G RELIEF WAS GRANTED BY THE CO-ORDINATE BENCH AND RELEVANT PARA OF THE CO-O RDINATE BENCH ORDER IS REPRODUCED: FURTHER THAT ON THE BASIS OF THE ABOVE DISCUSSION A ND OBSERVATION WE FIND THE ENTIRE PROCEEDING IS VOID AB INITIO I.E. INVALID FR OM THE VERY OUTSET AND THEREFORE IS LIABLE TO BE QUASHED AND HENCE THE ENTIRE PROCEEDIN G UNDER SECTION 148 OF THE ACT AS INITIATED BY THE REVENUE AGAINST THE ASSESSE E IS HEREBY QUASHED. THUS, ASSESSEE'S APPEAL IS ALLOWED. ITA NOS. 410 & 411/AHD/2019 . A.Y. 2007-0 8 3 6. SINCE THE PRELIMINARY PART HAS BEEN ALLOWE D IN FAVOUR OF THE ASSESSEE REST OF THE GROUNDS BECOME ACADEMIC AND NO ORDER NEED BE PASSED. 7. THE ISSUE INVOLVED IN REST OF THE APPEALS IS IDE NTICAL TO THAT OF THE ISSUE ALREADY BEEN DEALT WITH BY US IN ITA NO.L407/AHD/2017 FOR A .Y. 2007-08 AND IN THE ABSENCE OF ANY CHANGED CIRCUMSTANCES THE SAME SHALL APPLY MUTATIS MUTANDIS. HENCE, THE REST OF THE APPEALS PREFERRED BY THE ASS ESSEE ARE ALSO ALLOWED. 8. IN THE COMBINED RESULT, ALL THE ASSESSEE'S APPEA LS ARE ALLOWED. 6. SINCE RELIEF HAS BEEN GRANTED BY THE CO-ORDINATE BE NCH IN QUANTUM PROCEEDING TO THE ASSESSEE/ APPELLANT, THUS, THERE IS NO RES I NTEGRA. IN VIEW OF THE ABOVE, WE ALLOW THE APPEAL OF THE ASSESSEE AND DIRECT A.O. TO DELETE THE PENALTY. 7. IN THE RESULT, APPEALS FILED BY THE ASSESSEES ARE A LLOWED. ORDER PRONOUNCED IN OPEN COURT ON 11 - 09- 2019 SD/- SD/- (WASEEM AHMED) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 11 /09/2019 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD