Shri Kiritkumar R.Mehta, Sabarkantha V. The Dy.CIT.,S.K.Circle, Himatnagar

ITA 4154/AHD/2008

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1909 (ITAT-AHMEDABAD)
• Duration Of Justice: 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-12-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 03-12-2009
• Assessment Year: 2005-2006
• Appeal Filed On: 30-12-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJEEV AGARWAL
• Assessee Lawyers: S N DIVETIA
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH, JUDICIAL MEMBER DATE OF HEARING: 3/12/2009 DRAFTED ON:3.12.200 9 ITA NO.4154/AHD/2008 & 4155/AHD/2008 ASSESSMENT YEAR : 2005-2006 & 2006-2007 SHRI KIRITKUMAR R. MEHTA SIR PRATAP HIGH SCHOOL, IDAR. VS. D.C.I.T., SABARKANTHA CIRCLE, HIMATNAGAR (DIST.S.K.) PAN/GIR NO. : ABLPM 3044 N (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI S.N.DIVETIA A.R. RESPONDENT BY: SHRI RAJEEV AGARWAL, D.R. O R D E R PER N.S.SAINI , ACCOUNTANT MEMBER :- THESE ARE THE APPEALS FILED BY THE ASSESSEE AGAINS T THE CONSOLIDATED ORDER OF THE LD.CIT(APPEALS)-X, AHMEDABAD, DATED 30.10.2 008 IN APPEAL NO.CIT(A)- X/17&18/DCIT-S.K.CIR/08-09. 2. THE SOLE ISSUE INVOLVED IN THE GROUNDS OF APPEAL TAKEN IN BOTH THE APPEALS BY THE ASSESSEE IS THAT THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) ERRED IN CONFIRMING THE LEVY OF PENALTY OF RS.3,41,600/- IN THE ASSESSMENT YEAR 2005- 06 AND PENALTY OF RS.6,97,762/- IN THE ASSESSMENT Y EAR 2006-07 BY THE LEARNED ASSESSING OFFICER. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE, LEARNED ASSESSING OFFICER LEVIED PENALTY OF RS.3,41,600/- I N THE ASSESSMENT YEAR 2005- 06 AND PENALTY OF RS.6,97,762/- IN THE ASSESSMENT Y EAR 2006-07 UNDER SECTION 271(1)(C) OF THE ACT ON THE GROUND THAT INCOME OF R S.10,24,950/- IN THE ASSESSMENT YEAR 2005-06 AND INCOME OF RS.23,21,030/ - IN THE ASSESSMENT YEAR ITA NO S.4154 & 4155/AHD/2008 M/S.KIRITKUMAR RASIKLAL MEHTA ASST.YEAR -2005-06 & 2006-07 - 2 - 2006-07 WAS NOT DISCLOSED BY THE ASSESSEE IN ITS OR IGINAL RETURN FILED FOR THESE YEARS BUT WAS ADMITTED AND DISCLOSED ONLY AFTER CER TAIN INCRIMINATING DOCUMENTS WERE FOUND DURING THE COURSE OF THE SURVEY ON 12.01 .2007. IN APPEAL, LEARNED COMMISSIONER OF INCOME TAX(APPEALS) CONFIRMED THE A BOVE LEVY OF PENALTY. ASSESSEE BEFORE US EXPLAINED THAT INCOME IN QUESTIO N WERE VOLUNTARILY DISCLOSED BY HIM TO BUY PEACE OF MIND. THE SIMILAR EXPLANATIO N WAS ALSO FURNISHED BEFORE THE LEARNED ASSESSING OFFICER AND BEFORE THE LEARNE D COMMISSIONER OF INCOME TAX(APPEALS). BOTH THE LOWER AUTHORITIES REJECTED T HE EXPLANATION ON THE GROUND THAT THE DISCLOSURE WAS NOT VOLUNTARY BUT ONLY AFTE R INCRIMINATING DOCUMENTS EVIDENCING THE ABOVE INCOME WAS FOUND THE COURSE O F THE SURVEY. WE FIND THAT THERE IS NO DISCUSSION ABOUT THE PAPERS WHICH WERE FOUND DURING THE COURSE OF THE SURVEY AND WERE IMPOUNDED BY THE INCOME TAX AUTHORI TIES EITHER IN THE PENALTY ORDER OR IN THE RELEVANT ASSESSMENT ORDER. FROM THE MATERIALS AVAILABLE ON RECORD, IT COULD NOT BE FOUND HOW THE DOCUMENTS FOUND DURIN G THE COURSE OF THE SURVEY SHOWS THAT INCOME OF RS. RS.10,24,950/- AND RS.23,2 1,030/- WERE EARNED BY THE ASSESSEE DURING THE PREVIOUS YEARS RELEVANT TO THE ASSESSMENT YEAR 2005-06 AND 2006-07. THE ASSESSEE FILED BEFORE US A COPY OF THE STATEMENT RECORDED DURING THE COURSE OF THE SURVEY AND ON PERUSAL OF THE SAME ALS O WE FIND NO MATERIAL ON THE BASIS OF WHICH IT CAN BE HELD THAT MATERIALS FOUND DURING THE COURSE OF THE SURVEY REFLECTED THE ABOVE EARNING OF INCOME BY THE ASSESS EE. IN FACT THERE IS NO DISCUSSION ABOUT THE CONTENTS OF THE DOCUMENTS FOUN D DURING THE COURSE OF THE SURVEY. THE ASSESSEE HAS ALSO NOT FILED BEFORE US C OPIES OF DOCUMENTS WHICH WERE FOUND DURING THE COURSE OF THE SURVEY. IN ABSENCE O F THE SAID DOCUMENT AND IN ABSENCE OF ANY DISCUSSION MADE BY THE EITHER OF THE LOWER AUTHORITIES IN THE RELEVANT ORDERS ABOUT THE CONTENTS OF THE SEIZED DO CUMENTS, WE ARE NOT IN A POSITION TO ADJUDICATE WHETHER DOCUMENTS FOUNDS DUR ING THE COURSE OF THE SURVEY INDICATED EARNING OF INCOME IN QUESTION BY THE ASSE SSEE OR NOT AND WHETHER THE DEPARTMENT HAD ANY OTHER MATERIAL ALSO TO SUPPORT T HE ASSESSMENT EXCEPT DISCLOSURE MADE BY THE ASSESSEE. THE LEARNED AUTHO RISED REPRESENTATIVE OF THE ASSESSEE ALSO SUBMITTED BEFORE US THAT THE ASSESSEE IS IN A POSITION TO LEAD THE EVIDENCES TO SHOW THAT THE MONEY RECEIVED ON SALE O F LAND WERE ACTUALLY HANDED OVER TO THE OWNER OF THE LAND. IN THE ABOVE FACTS A ND CIRCUMSTANCES OF THE CASE, IN ITA NO S.4154 & 4155/AHD/2008 M/S.KIRITKUMAR RASIKLAL MEHTA ASST.YEAR -2005-06 & 2006-07 - 3 - OUR CONSIDERED OPINION, IT SHALL BE JUST AND FAIR T O RESTORE THE ISSUE BACK TO THE FILE OF THE LEARNED ASSESSING OFFICER FOR ADJUDICATION A FRESH BY PASSING A SPEAKING ORDER IN LIGHT OF THE DISCUSSIONS MADE HEREINABOVE. THE LEARNED ASSESSING OFFICER SHALL ALLOW A REASONABLE OPPORTUNITY OF HEA RING TO THE ASSESSEE BEFORE ADJUDICATION AFRESH AND THE ASSESSEE IS ALSO DIRECT ED TO PRODUCE ALL THE EVIDENCES WHICH HE WANTS TO RELY UPON BEFORE THE LEARNED ASSE SSING OFFICER AT THE TIME WHEN HIS CASE IS FIXED FOR HEARING BY THE LEARNED A SSESSING OFFICER. WE ORDER ACCORDINGLY. THUS, BOTH THE APPEALS OF THE ASSESSE E ARE ALLOWED FOR STATISTICAL PURPOSES. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED AT THE CLOSE OF THE HEARING IN THE PRESENCE OF PARTIES IN THE COURT ON 3/12/2009. SD/- SD/- ( MAHAVIR SINGH) ( N.S. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 3/12/2009 PREPARED AND COMPARED BY : PARAS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-X, AHMEDABAD. 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD