Shri Jagdish C. Sachdev, Ahmedabad V. The Income tax Officer, Ward-10(2), Ahmedabad

ITA 485/AHD/2011

• Counselvise Citation: 48520514 RSA 2011
• Duration Of Justice: 4 year(s) 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 04-08-2015
• Assessment Year: 1995-1996
• Appeal Filed On: 18-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA SINGH
• Assessee Lawyers: K H SHAH
• Keywords: Reopening of assessment; Principle of natural justice; Tangible material
• Section: 143(3); 148; 144

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ ITA NOS. 484 & 485/AHD/2011 / ASSESSMENT YEARS: 1994-95 & 1995-96 JAGDISH C. SACHDEV, C/O. KETAN H. SHAH, ADVOCATE 903, SAPPHIRE COMPLEX, C.G. ROAD, NAVRANGPURA, AHMEDABAD PAN : ALUPS 8870 P VS INCOME TAX OFFICER, WARD 10(2) AHMEDABAD / (APPELLANT) / (RESPONDENT) ASSESSEE(S) BY : SHRI K.H. SHAH, AR REVENUE BY : SHRI NARENDRA SINGH, SR. DR. / DATE OF HEARING : 04/08/2015 / DATE OF PRONOUNCEMENT: 10/09/2015 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER:- THESE TWO APPEALS BY THE ASSESSEE PERTAINING TO AS SESSMENT YEARS 1994-95 & 1995-96 ARE DIRECTED AGAINST THE CO MMON ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-XVI (CIT(A) I N SHORT), AHMEDABAD DATED 25.01.2011, THEREBY THE LD. CIT(A) CONFIRMED THE PENALTY IMPOSED BY THE ASSESSING OFFICER. SINCE FACTS AND GROUNDS ARE IDENTICAL, BOTH THESE APPEALS WERE TAKEN UP TOGETHER FOR HEARI NG AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. FOR THE PURPOSE OF FACTS, ITA NO.484/AHD/2011 FOR ASSESSMEN T YEAR 1994-95 IS BEING TAKEN AS LEAD CASE. ITA NO. 484/AHD/2011 : AY 1994-95 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL:- ITA NOS. 484 & 485/AHD/2011 JAGDISH C SACHDEV VS. ITO FOR AYS 1994-95 & 1995-96 2 1. THE LEARNED CIT (APPEALS) HAS ERRED IN FACTS AND IN LAW IN NOT APPRECIATING THE WRITTEN SUBMISSION DATED 21.01.201 1 CONTAINING PAGES 1 TO 68 WHEREIN THE ASSESSEE HAS EXPLAINED THE SO CAL LED DELAY IN FILING THE APPEAL FOR THE YEAR IN DISPUTE. IT IS RESPECTFULLY SUBMITTED THAT HE OUGHT TO HAVE CONDONE THE SO CALLED DELAY BY FOLLOWING TH E RULE OF NATURAL JUSTICE, AND AS SUCH, IT IS PRAYED THAT THE SAID DE LAY MAY PLEASE BE CONDONED AND THIS APPEAL MAY PLEASED BE DECIDED ON THE MERITS OF THE CASE. 2. THE LEARNED CIT (APPEALS) HAS ALSO ERRED IN NOT APPR ECIATING THE FACTS AND SUBMISSION AS PER OUR LETTER DATED 21.01.2011 I NTER ALIA PAPER BOOK PAGE 1 TO 68. IT IS RESPECTFULLY SUBMITTED THAT TH E LEARNED CIT (APPEALS) OUGHT NOT TO HAVE MAINLY RELIED ON THE FINDING GIVE N BY HIM IN THE ORDER PASSED BY HIM AGAINST 143(3) OF THE ACT. 3. THE CIT(APPEALS) HAS ERRED IN NOT APPRECIATING THE FACTS AND / OR IN LAW THAT THERE MAY BE JUSTIFICATION FOR MAKING THE ADDI TION AND THERE MAY BE SOME FAILURE ON PART OF THE ASSESSEE TO EXPLAIN THE CASH CREDIT BUT PENALTY UNDER SEC. 271(1)(C) IS NOT AUTOMATIC/CONSEQUENTIAL I N NATURE, AND AS SUCH, BOTH THE LOWER AUTHORITIES HAVE TOTALLY ERRED IN LEVYING PENALTY INTER ALIA CONFIRMING THE PENALTY BY CIT (APPEALS) A S PER HIS ORDER IN DISPUTE PAGE 43 TO 45 PARA 5.2 TO 5.3 AND IT IS PRA YED THAT THE PENALTY MAY PLEASE BE DELETED. 3. BRIEFLY STATED FACTS ARE THAT IN QUANTUM PROCEED INGS THE ADDITIONS MADE BY THE ASSESSING OFFICER IN RESPECT OF CASH CR EDITS TRAVELLED UPTO THE STAGE OF TRIBUNAL WHICH WAS SET ASIDE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER AND THE SAME ADDITIONS WERE AGAIN MADE BY T HE ASSESSING OFFICER VIDE HIS ORDER DATED 26.12.2008. WHILE DOING SO, T HE ASSESSING OFFICER ALSO INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT AND SUBSEQUENTLY, THE ASSESSING OFFICER IMPOSED PENALTY OF RS. 4,09,342/- VIDE ORDER DATED 29.06.2009. THIS ORDER WAS CHALLENGED BEFORE THE L D. CIT(A) WHO CONFIRMED THE PENALTY AND DISMISSED THE APPEAL ON DELAY AS WE LL AS ON MERITS. THE ASSESSEE FEELING AGGRIEVED BY THE ORDER OF THE LD. CIT(A) IS IN PRESENT APPEAL. ITA NOS. 484 & 485/AHD/2011 JAGDISH C SACHDEV VS. ITO FOR AYS 1994-95 & 1995-96 3 4. THE LD. COUNSEL FOR THE ASSESSEE VEHEMENTLY ARGU ED THAT THE AUTHORITIES BELOW WERE NOT JUSTIFIED IN IMPOSING TH E PENALTY AND CONFIRMING THE SAME. THE LD. COUNSEL FOR THE ASSESSEE SUBMITT ED THAT THE ADDITIONS WERE MADE ON ACCOUNT OF CASH CREDITS. HE SUBMITTED THAT THE DETAILS OF THE CREDITORS WERE DULY GIVEN; HOWEVER, THE ASSESSING O FFICER DISREGARDED THE EVIDENCES. HE FURTHER SUBMITTED THAT THE LD. CIT(A ) HAS DISREGARDED THE EVIDENCES AS SUBMITTED BEFORE HIM ON FLIMSY GROUNDS . HE FURTHER SUBMITTED THAT UNDER THE FACTS OF THE PRESENT CASE THE ASSESSING OFFICER OUGHT NOT TO HAVE IMPOSED THE PENALTY. HE SUBMITTE D THAT THE ORDER IMPOSING PENALTY WAS PASSED ON THE BACK OF THE ASSE SSEE; THEREFORE, HE HAD NO REPRESENTATION BEFORE THE ASSESSING OFFICER. HE SUBMITTED THAT THERE IS GROSS VIOLATION OF THE PRINCIPLES OF NATURAL JUSTIC E. HE FURTHER SUBMITTED THAT THE QUANTUM PROCEEDINGS AND THE PENALTY PROCEEDINGS ARE TWO DIFFERENT AND DISTINCT PROCEEDINGS; AND MERELY BECAUSE THE QUANTU M ADDITION HAS BEEN CONFIRMED BY THE HIGHER AUTHORITY IT DOES NOT NECES SARILY MEAN THAT PENALTY IS ALSO LEVIABLE U/S. 271(1)(C) OF THE INCO ME-TAX ACT. HE ALSO SUBMITTED THAT EVEN IN QUANTUM PROCEEDINGS ALSO, TH E ORDER WAS PASSED AT THE BACK OF THE ASSESSEE. HE SUBMITTED THAT IN BOT H THE QUANTUM AS WELL AS PENALTY PROCEEDINGS, THE ASSESSEE WAS NOT REPRESENT ED HIMSELF AND COULD NOT GIVE EFFECTIVE DEFENSE TO THE PROPOSED ADDITION S. UNDER THESE FACTS, HE SUBMITTED THAT PENALTY SHOULD NOT HAVE BEEN CONFIRM ED BY THE LD. CIT(A). THE ASSESSEE HAS FILED A PAPER-BOOK THOUGH NOT CERT IFIED; AND FROM PAGE NOS. 211 TO 213 OF THE PAPER-BOOK, THE CONTENTION O F THE ASSESSEE IS THAT THE ASSESSEE HAD FILED ALL EVIDENCES IN SUPPORT OF CASH CREDITS BEFORE THE ASSESSING OFFICER. HOWEVER, THE AUTHORITIES BELOW HAVE NOT APPRECIATED THE EVIDENCES IN RIGHT PERSPECTIVE. THE ASSESSEE WAS NO T AFFORDED SUFFICIENT OPPORTUNITY TO REPRESENT HIS CASE. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT GROSS MISCARRIAGE OF JUSTICE HAS BEEN CAUSED T O THE ASSESSEE; THEREFORE, HE SUBMITTED THAT THE ORDERS OF THE AUTHORITIES BEL OW BE SET ASIDE. ITA NOS. 484 & 485/AHD/2011 JAGDISH C SACHDEV VS. ITO FOR AYS 1994-95 & 1995-96 4 5. THE LD. SR. DEPARTMENTAL REPRESENTATIVE, ON THE CONTRARY, OPPOSED THE SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE AND SUBMITTED THAT THE ASSESSEE WAS NOT REPRESENTING HIS CASE DESPITE HAVI NG BEEN GIVEN SUFFICIENT OPPORTUNITY. EVEN IN THE QUANTUM PROCEEDINGS, THE TRIBUNAL HAS SET ASIDE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER AND AN UNDERTAKING WAS GIVEN BY THE LD. COUNSEL FOR THE ASSESSEE BEFORE THE TRIB UNAL THAT THE ASSESSEE WOULD COOPERATE BEFORE THE ASSESSING OFFICER. THE LD. SR. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE ASSESSING OFFICER HAS RECORDED A FINDING THAT THE ASSESSEE HAD FILED AN AFFIDAVIT EXECUTED O N 08.11.2004 BEFORE THE TRIBUNAL STATING THAT HE WOULD ATTEND AND FACILITAT E TO COMPLETE THE ASSESSMENT PROCEEDINGS. HE SUBMITTED THAT UNDER TH ESE FACTS THE ASSESSEE DOES NOT DESERVE ANY LENIENCY AND THE PENALTY HAS B EEN RIGHTLY LEVIED BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(A). 6. WE HAVE HEARD THE RIVAL CONTENTION AND PERUSED T HE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THERE IS NO DISPUTE WITH REGARD TO THE FACT THAT IN THE QUANTUM PROCEEDINGS THE ASSESSEE WAS GIVEN SUFFICIENT OPPORTUNITY AS IS EVIDENT FROM THE RECORDS. THE CO-ORDINATE BENCH OF THE TRIBUNAL IN ITA NOS. 5 74 & 575/AHD/2007 DATED 04.05.2007 HAD RESTORED THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR DECISION AFRESH. THE ASSESSEE HAD GIVEN AN UND ERTAKING TO APPEAR BEFORE THE ASSESSING OFFICER AND WOULD COOPERATE WITH THE ASSESSMENT PROCEEDINGS. THE ASSESSEE DID NOT SHOW HIS APPEARA NCE BEFORE THE ASSESSING OFFICER; THEREFORE, SO FAR AS THE ISSUE O F QUANTUM IS CONCERNED, WHICH HAS BEEN TRAVELLED UP TO THE STAGE OF TRIBUNA L; IN THE THIRD ROUND OF LITIGATION, IN ITA NOS. 307 AND 308/AHD/2011, THE C O-ORDINATE BENCH OF THE TRIBUNAL IN PARAGRAPH 12 OF ITS ORDER HAS OBSERVED AS UNDER:- ITA NOS. 484 & 485/AHD/2011 JAGDISH C SACHDEV VS. ITO FOR AYS 1994-95 & 1995-96 5 12. THIS LEAVES US TO THE ONLY ISSUE ON THE MERITS OF THE ADDITIONS MADE BY THE AO FOR BOTH ASSTT.YEARS 1994-95 AND 1995-1996. W E FIND THAT THE LEARNED COUNSEL FOR THE ASSESSEE AT THE OUTSET SUBM ITTED THAT HE HAS NOT PREPARED ON THE MERITS OF THE ADDITIONS MADE BY THE AO AND CONFIRMED BY THE CIT(A). IN REPLY TO THE QUERY FROM THE BENCH THAT WH Y HE WAS NOT SUBMITTING ANY ARGUMENTS ON THE MERITS OF THE CASE OR WHY HE HAS NOT PREPARED, THE LEARNED COUNSEL FOR THE ASSESSEE COUL D NOT GIVE ANY REASONS WHATSOEVER. WE FIND THAT IT IS THIRD ROUND OF LITIG ATION BEFORE THE TRIBUNAL, AND SINCE NO REASON COULD BE SUBMITTED ON BEHALF OF THE ASSESSEE, FOR NOT ADDRESSING ANY ARGUMENTS ON MERITS OF THE CASE, WE ARE OF THE VIEW THAT THERE SHOULD BE AN END TO THE LITIGATION IN THIS CASE. WE FIND THAT IT IS NOT A CASE WHERE THE ASSESSEE WAS NOT GIVEN OPPORTUNITY TO PRO VE THE SOURCE OF CREDIT ENTRIES BY THE AO AND THE CIT(A). THE ASSESSEE HAS N OT EVEN FILED CONFIRMATION LETTERS FROM MOST OF THE CREDITORS. IN THE MATTER OF CREDIT ENTRIES, IT WELL SETTLED THAT THE ONUS IS ON THE ASSESSEE TO PROVE THE IDENTITY AND CREDIT- WORTHINESS OF THE CREDITORS AND ALSO GENUINENESS OF THE TRANSACTIONS. IN THIS CASE, THE ASSESSEE HAS MISERABLY FAILED TO DISCHARG E ITS ONUS CAST ON IT UNDER THE STATUTE AND COULD NOT ESTABLISH THE IDENTITY AN D CREDIT WORTHINESS OF CREDITORS AND GENUINENESS OF THE TRANSACTION, IN SP ITE OF AMBLE OPPORTUNITY GIVEN BY THE AO AND THE CIT(A) IN THIRD ROUND OF LITI GATION. WE FIND THAT ON MERITS OF THE CASE THE CIT(A) HAS PASSED A WELL REAS ONED SPEAKING ORDER ON THE MERITS OF THE CASE, AND THE ASSESSEE COULD NOT CONTROVERT EVEN A SINGLE LINE THEREOF. WE FIND THAT FROM PARA 6.6.1 OF THE IMPUGN ED ORDER, THE CIT(A) HAS CONSIDERED EACH AND EVERY CREDIT ENTRY AND THE FACT S OF THE CASE FOR BOTH ASSTT. YEARS 1994-95 AND 1995-1996 FROM PAGE NO.79 TO 103 OF THE APPELLATE ORDER, AND SINCE THE ASSESSEE COULD NOT CONTROVERT A SINGL E LINE RECORDED BY THE CIT(A) ON THE MERITS OF THE CASE, WE ARE OF THE VIEW THAT NO INTERFERENCE IN THE ORDER OF THE CIT(A) ON THIS ISSUE IS CALLED FOR, AND ACCORDINGLY, THE ORDER OF THE CIT(A) CONFIRMING THE ADDITIONS ON ITS MERITS IS CONFIRMED FOR BOTH THE ASSTT. YEARS 1994-95 AND 1995-96 AND ALL THE GROUNDS OF APPEAL OF THE ASSESSEE ARE DISMISSED FOR THE BOTH RELEVANT ASSESS MENT YEARS 1994-95 AND 1995-96. 7. THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESS EE IS THAT AGAINST THE ORDER OF THE TRIBUNAL IN QUANTUM PROCEEDINGS, THE T AX APPEALS FILED BEFORE THE HONBLE JURISDICTIONAL HIGH COURT HAS BEEN ADMI TTED VIDE TAX APPEAL NOS. 1062 OF 2014 AND 1063 OF 2014. LD. COUNSEL F OR THE ASSESSEE HAS PLACED RELIANCE ON FOLLOWING CASE LAWS IN SUPPORT OF HIS S UBMISSIONS. I. 278 ITR 354 (ALL), CIT VS. MATA PRASAD II. 265 ITR 25 (CAL), DURGA KAMAL RICE MILLS VS. CIT ITA NOS. 484 & 485/AHD/2011 JAGDISH C SACHDEV VS. ITO FOR AYS 1994-95 & 1995-96 6 III. 322 ITR 158 (SC), CIT VS. RELIANCE PETROPRODUCTS IV. 282 ITR 642 (GUJ.), NEW SORATHIA ENGG VS. CIT V. 221 ITR 661 (GUJ.), CIT VS. BARODA TIN WORKS VI. 249 ITR 125 (GUJ), NATIONAL TEXTILES VS. CIT VII. ACIT VS. MANISH ORGANICS (INDIA) DATED 30.11.2011, ITAT, AHMEDABAD BENCHES VIII. 17 ITR 478 (BOM), CIT VS. MYSORE IRON AND STEEL WRO KS IX. 212 CTR 42 (DELHI), CIT VS. ATUL JAIN X. 40 SOT 163 (MUM), CHEMPURE VS. ITO XI. 347 ITR 639 (ALL), MEHSONS EXPORTS VS. ITO XII. 47 DTR 178 (CHENNAI) (TRIB.), A. RAJENDRAN VS. ACIT XIII. 48 DTR 298 (AHD), ITO VS. COMPUTER FORCE XIV. 24 SOT 393 (DELHI), SHRI VARDHAMAN OVERSEAS VS. ACI T 8. IT IS TRANSPIRED FROM THE RECORDS THAT IN THE QU ANTUM PROCEEDINGS AS WELL AS IN THE PENALTY PROCEEDINGS THE ASSESSEE DID NOT AVAIL THE OPPORTUNITY TO REPRESENT HIS CASE DESPITE HAVING BEEN GIVEN OPP ORTUNITY. EVEN THE CO- ORDINATE BENCH OF THE TRIBUNAL IN THE QUANTUM PROCE EDINGS HAS RECORDED THE FINDING THAT THE LD. COUNSEL FOR THE ASSESSEE D ID NOT PREPARE THE CASE ON THE MERITS OF THE ADDITIONS MADE BY THE ASSESSING O FFICER. THE LD. COUNSEL FOR THE ASSESSEE FAILED TO ADDRESS THE ARGUMENTS ON MERIT OF THE CASE. THEREFORE, THE CO-ORDINATE BENCH OF THE TRIBUNAL DE CIDED THE ISSUE AGAINST THE ASSESSEE. THE APPEAL PREFERRED AGAINST THE ORD ER OF THE TRIBUNAL HAS BEEN ADMITTED BY THE HONBLE GUJARAT HIGH COURT IN TAX APPEAL NOS. 1062 OF 2014 AND 1063 OF 2014. WE FIND THAT THE ASSESSI NG OFFICER HAS RECORDED THAT FRESH NOTICE U/S 143(2) DATED 20.10.2008 SOUGHT TO F INALISE THE PROCEEDINGS INITIATED AFTER ISSUING NOTICES ON VARIOUS DATES AN D SHOW-CAUSE NOTICE TO FINALISE ASSESSMENT U/S 144 OF THE ACT AND A LETTER TO NEW AR OF THE ASSESSEE SHRI KETAN H SHAH AND AFTER MAKING TELEPHONIC CONVERSATION ON HI S MOBILE PHONE [phone] ON 22.12.2008, WHO IN TURN INFORMED THAT THE ASSESSEE IS NOT IN INDIA AND HAS EVEN NOT PAID OF HIS FEES DUE SO HE IS NOT ATTENDING THE WOR K OF THE ASSESSEE. HENCE, THE ASSESSMENT ORDER WAS FINALIZED U/S 144 R.W.S. 143(3 ) & 250 OF IT ACT. FURTHER THE ASSESSING OFFICER RECORDED THAT THE PENALTY NOTICE ISSUED U/S 271(1)(C) HAD ITA NOS. 484 & 485/AHD/2011 JAGDISH C SACHDEV VS. ITO FOR AYS 1994-95 & 1995-96 7 COME BACK UNSERVED. UNDER THESE FACTS, THE ASSESSI NG OFFICER LEVIED PENALTY OF RS.4,09,342/- ON THE PRESUMPTION THAT TH E ASSESSEE CONCEALED THE PARTICULARS OF INCOME WITHIN THE MEANING OF SECTION 271(1)(C) OF THE ACT. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO THE TOTA LITY OF THE FACTS. BEFORE THE ASSESSING OFFICER, NO ONE REMAINED PRESENT ON B EHALF OF THE ASSESSEE; HOWEVER, BEFORE THE LD. CIT(A), SHRI KETAN H. SHAH, ADVOCATE ATTENDED THE PROCEEDINGS. THE LD. CIT(A) HAS DECIDED THE APPEAL AGAINST THE ASSESSEE, BOTH ON THE ISSUE OF DELAY AND ON MERITS. THE LD. COUNSEL FOR THE ASSESSEE HAS RELIED UPON VARIOUS CASE LAWS TO REBUT THE ARGU MENTS MAINLY THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF RE LIANCE PETROPRODUCTS PRIVATE LTD, 322 ITR 158. THE JUDGMENT OF THE HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF MITSU INDUSTRIES LTD VS. DCIT, THE HONBLE HIGH COURT HELD THAT E VEN ON THE ASSUMPTION THAT THE INITIAL ONUS LIES ON THE APPELLANT, THE APPELLANT SUFFICIENTLY DISCHARGED ITS BURDEN BY PLA CING EXPLANATION AND EVIDENCE FROM TIME TO TIME BEFORE THE LOWER AUTHORITIES. IT APPEARS THAT NO INQUIRY WAS MADE IN CASE OF LENDERS. IN VIEW OF THE AFORESAID DECISI ON, WE ARE OF THE OPINION THAT THE TRIBUNAL COMMITTED AN ERROR IN IMPOSING PENALTY U/S 271(1)(C ) OF THE ACT AND FOR THE REASONS STATED HEREINABOVE WE ANSWER THE QUESTI ON IN THE NEGATIVE I.E. IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. IN THE CASE IN HAND, THE ASSESSEE WAS GIVEN SUFFICIENT OPPORTUNITY BY THE AUTHORITIES BEL OW; THEREFORE, THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT WOULD NOT HELP THE ASSESSEE. THE TRIBUNAL IN QUANTUM PROCEEDINGS HAS OBSERVED TH AT THE COUNSEL FOR THE ASSESSEE COULD NOT EVEN CONTROVERT ON THE MERIT OF THE ADDITIONS. WE ARE CONCERNED WITH CONFIRMATION OF PENALTY. THE ADDITI ONS HAVE BEEN CONFIRMED UPTO TO THE STAGE OF THE TRIBUNAL; HOWEVE R, THE APPEALS AGAINST THE QUANTUM ARE PENDING FOR ADJUDICATION BEFORE THE HONBLE HIGH COURT OF GUJARAT. THERE IS NO DISPUTE WITH REGARD TO THE FA CT THAT AT BOTH STAGES, I.E., QUANTUM AS WELL AS PENALTY PROCEEDINGS, THE ASSESSE E REMAINED ABSENT. HOWEVER, BEFORE THE CIT(A), IN PENALTY PROCEEDINGS, THE ASSESSEE HAD FILED ITA NOS. 484 & 485/AHD/2011 JAGDISH C SACHDEV VS. ITO FOR AYS 1994-95 & 1995-96 8 THE EVIDENCES WHICH HAVE BEEN CONSIDERED AT LENGTH IN HIS ORDER AT PAGE NOS. 19 TO 42 AND HAS GIVEN A FINDING THAT THE APPE LLANT HAS FAILED TO DISCHARGE ITS ONUS OF PROVING THE IDENTITY OF THESE PERSONS, GENUINENESS OF TRANSACTIONS AND CREDITWORTHINESS; THEREFORE, ON ME RIT NONE OF THE CREDITORS ARE ALLOWABLE. WE HAVE GIVEN OUR THOUGHTFUL CONSI DERATION TO THE FACTS OF THE CASE. ONE OF THE GROUNDS ADMITTED BY THE HONB LE JURISDICTIONAL HIGH COURT IS WITH REGARD TO THE SERVICE OF NOTICE U/S 1 48 WHICH GOES TO THE VERY ROOT OF THE REOPENING OF ASSESSMENT PROCEEDINGS. TH E HONBLE JURISDICTIONAL HIGH COURT HAD ADMITTED THE ISSUE IN TAX APPEAL NOS . 1062 & 1063 OF 2014 TO CONSIDER THE FOLLOWING SUBSTANTIAL QUESTIONS OF LAW:- Q.1. WHETHER ON THE FACTS AND IN LAW TRIBUNAL IS JUSTIFIED IN UPHOLDING CIT(A) ORDER OF DISMISSED OF APPEAL OF ASSESSEE ON G ROUND OF DELAY WHEN IN SUBSTANCE THERE IS ABSENCE OF ANY DELAY? (3) WHETHER ON FACTS AND IN LAW TRIBUNALS FINDING & CONCLUSIONS WHICH ARE SIMULTANEOUS ON DELAY & MERITS IS TENABLE IN ABSENCE OF GROUND-WISE DISPOSAL OF APPEAL. (4) WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CA SE, LEARNED ITAT HAS ERRED IN LAW IN NOT APPRECIATING THE FACT THAT, ADM ITTEDLY NOTICE U/S 148 DATED 29.05.2001 WAS SERVED ON DIFFERENT ADDRESS THAN SHO WN IN THE RETURN AND IS NOT VALID SERVICE? (6) WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CA SE, LEARNED ITAT HAS ERRED IN LAW IN NOT APPRECIATING THE FACTS THAT, TH ERE IS NO TANGIBLE MATERIAL FOR AY 1994-95 VIDE NOTICE DATED 29.05.2001 WHICH IS BEYOND 4 YEARS FROM END OF THE RELEVANT AY AND THE SAID NOTICE IS BAD IN LAW? (7) WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CA SE, LEARNED ITAT HAS ERRED IN LAW IN NOT APPRECIATING THE FACT THAT, THE HIGHER AUTHORITY HAS NOT APPLIED HIS MIND BEFORE GRANTING THE APPROVAL FOR AY 1994-95, CONTRARY TO RATIO OF APEX COURT DECISION IN THE CASE OF CHHUGAN MAL RAJPUT REPORTED IN 79 ITR 603 (SC)? (8) WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CA SE, LEARNED ITAT HAS ERRED IN LAW IN NOT APPRECIATING THE FACTS THAT, TH E ASSESSEE HAD DISCHARGE THE ITA NOS. 484 & 485/AHD/2011 JAGDISH C SACHDEV VS. ITO FOR AYS 1994-95 & 1995-96 9 INITIATED ONUS U/S 68 BY FURNISHING ADDRESS, PAN NO. ETC. OF CREDITORS AND ALSO REQUESTED TO ISSUE THE SUMMONS WHEREAS THERE I S ABSENCE OF DISCHARGE OF ONUS OF REBUTTAL? (9) WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CA SE, LEARNED ITAT HAS ERRED IN LAW IN NOT APPRECIATING THE FACTS THAT THE LATEST FINDING THE ITAT IS IN ITA NO.574 & 575 DATED 04.05.2007 AND THEREFORE L EARNED ITAT HAS ERRED IN MAKING RELIANCE UPON THE OLD ORDER OF ITAT IN IT A NO.2418 & 2419 DATED 10.12.2004 WHICH FACT ITSELF RENDERS THE FINDING & CONCLUSION VITIATED ON FACTS & IN LAW? THEREFORE, UNDER THESE FACTS, WE HEREBY SET ASIDE T HE ORDERS OF THE AUTHORITIES BELOW ON THE ISSUE OF LEVYING PENALTY. THE ASSESSING OFFICER IS DIRECTED TO DECIDE THE ISSUE AFRESH AFTER THE OUTCO ME OF THE QUESTION NOS. 4 & 6 ADMITTED BY THE HONBLE JURISDICTIONAL HIGH COU RT IN TAX APPEAL NOS. 1062 OF 2014 AND 2063 OF 2014. THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 485/AHD/2011 : AY 1995-96 9. IN THIS APPEAL BY THE ASSESSEE FOR ASSESSMENT YE AR 1995-96, IDENTICAL GROUNDS ARE RAISED. THEREFORE, FOR THE DETAILED DIS CUSSION IN ITA NO.484/AHD/2011 FOR ASSESSMENT YEAR 1994-95, THIS A PPEAL OF THE ASSESSEE IS ALSO ALLOWED FOR STATISTICAL PURPOSES. 10. IN THE RESULT, BOTH THE APPEALS FILED BY THE AS SESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 10 TH SEPTEMBER, 2015 AT AHMEDABAD SD/- SD/- ( PRAMOD KUMAR) ACCOUNTANT MEMBER (KUL BHARAT) JUDICIAL MEMBER AHMEDABAD; DATED 10/09/2015 BIJU T., PS ITA NOS. 484 & 485/AHD/2011 JAGDISH C SACHDEV VS. ITO FOR AYS 1994-95 & 1995-96 10 !'#$%$&' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! ' ' # / CONCERNED CIT 4. ' ' # ( ) / THE CIT(A) 5. &'( ! , ' ! , / DR, ITAT, AHMEDABAD 6. (- . / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD