The ITO, Ward-9(1), Ahmedabad V. Shri Navnitbhai C.Patel, Ahmedabad

ITA 679/AHD/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9275 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 09-03-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 08-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L CHANDEL
• Assessee Lawyers: M G PATEL
• Keywords: Additional evidence
• Section: 143(3); 68

Judgement Text

ITA NO. 679 /AHD/201 3 ASSESSMENT YEAR: 20 07 - 08 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD C BENCH, AHMEDABAD [CORAM : PRAMOD KUMAR AM AND S S GODARA JM ] ITA NO . 679 /AHD/ 20 1 3 ASSESSMENT YEAR : 20 07 - 08 INCOME TAX OFFICER .. .APPELLANT WARD 9(1), AHMEDABAD . VS. NAVNITB HAI C. PATEL .. . RESPONDENT 50, HARSIDDHI CHAMBERS ASHRAM ROAD, A HMEDABAD. [PAN: A BBPP 5062 H ] APPEARANCES BY: S.L. CHANDEL , FOR THE APPELLANT M.G. PATEL , FOR THE RESPONDENT D ATE OF CONCLUDING THE HEARING : MARCH 9 TH , 201 6 DATE OF PRONOUNC ING THE ORDER : MARCH 10 TH , 201 6 O R D E R PER PRAMOD KUMAR , AM : 1. BY WAY OF THIS APPEAL, THE ASSESSING OFFICER HAS CHALLENGED CORRECTNESS OF THE ORDER DATED 21 ST DECEMBER, 2012, PASSED BY THE LD. CIT(A), FOR THE ASSESSMENT YEAR 2 00 7 - 08 , ON THE FOLLOWING GROUNDS : - 1) THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - XV, AHMEDABAD HAS ERRED IN LAW AND ON FACT S IN DELETING T HE PENALTY OF RS. 12,41,587 / - LEVIED U/S. 271(1)(C) OF THE ACT. 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, T HE LD. COMMISSIONER OF INCOME TAX (APPEALS) - XV, AHMEDABAD OUGHT TO HAVE UPHELD T HE ORDER OF THE ASSESSING OFFICER. 3) IT IS THEREFORE, PRAYED THAT THE ORDER OF THE L D . COMMISSIONER OF INCOME TAX (APPEALS) - XV, AHMEDABAD MAY BE SET - ASIDE AND THAT OF TH E ASSESSING OFFICER BE RESTORED. ITA NO. 679 /AHD/201 3 ASSESSMENT YEAR: 20 07 - 08 PAGE 2 OF 3 2. WHEN THIS APPEAL WAS CALLED OUT FOR HEARING, LEARNED COUNSEL FOR THE ASSESSEE INVITED OUR ATTENTION TO THE OR D ER DATED 4 TH APRIL, 2014 PASSED BY A CO - ORDINATE BENCH OF THIS TRIBUNAL , SETTING ASIDE TH E ASSESSMENT IN WHIC H RELATED QUANTUM ADDITIONS WERE MADE. HE SUBMITTED THAT ONCE THE MATTER REGARDING QUANTUM ADDITIONS STAND S RESTORED TO THE FILE OF A SSESSING OFFICER, PENALTY MUST S TAND DELETED. I T IS SUBMITTED THAT THE VERY BA S IS OF THE IMPUGNED PENALTY CEASES TO HOLD GOOD IN LAW AND , THEREFORE, PENALTY CANNOT SURVIVE. 3. LEARNED DEPARTMENTAL REPRESENTATIVE DOES NOT DISPUTE THE SUBMISSIONS SO MADE BY THE AS SESSEE. 4. WE FIND THAT , AS THE LEARNED REPRESENTATIVES FAIRLY AGREE , THE CO - ORDINATE BENCH V IDE ORDER 4 TH APRIL, 2014 REMANDED THE QUANTUM ADDITION TO THE FILE OF A SSESSING OFFICER BY , INTER ALIA , OBSERVING AS FOLLOWS: - 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE AO AND THE CIT(A). WE FIND THAT THE ASSESSEE HAS FILED VOLUMINOUS SET OF PAPE RS WITH REQUEST THAT THE SAME BE ADMITTED AS ADDITIONAL EVIDENCE BY THE TRIBUNAL. THE ASSESSEE HAS TRIED TO EXPLAIN CIRCUMSTANCES UNDER WHICH IT WAS PREVENTED FROM FILING THE SAME BEFORE THE AO, AT THE ASSESSMENT STAGE. THE ASSESSEE HAS SUBMITTED THAT WITH REGARD TO SOME CREDITORS, THE AO HAS NOT MADE ANY ADDITION UNDER SECTION 68 OF THE ACT, WHILE FRAMING THE ASSESSMENT IN SCRUTINY ASSESSMENT UNDER SECTION 143(3) FOR THE SUBSEQUENT ASSESSMENT YEAR 2009 - 10. WE ARE OF THE CONSIDERED VIEW THAT THESE FACTS NEE D VERIFICATION AT THE LEVEL OF THE AO AND CONSIDERATION OF THE ADDITIONAL EVIDENCE SOUGHT TO BE FILED BY THE ASSESSEE. IN THESE FACTS, WE HOLD THAT IT SHALL BE IN THE INTEREST OF JUSTICE TO RESTORE THE ISSUE IN THE GROUNDS OF THE APPEAL OF THE ASSESSEE AS WELL AS REVENUE, TO THE FILE OF THE AO WITH DIRECTION TO PASS DE NOVO ASSESSMENT ORDER IN ACCORDANCE WITH LAW, AFTER ALLOWING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE SHALL BE AT LIBERTY TO FILE ANY EVIDENCE IN SUPPORT OF ITS CASE. WE DIREC T ACCORDINGLY. 5. IN VIEW OF THE ABOVE FACT UAL POSITION, AS SHRI M.G. PATEL RIGHTLY CONTEND S , T HE IMPUGNED PENALTY CEASES TO HAVE ANY LEGALLY SUSTAINABLE BASIS. WE, THEREFORE, DELETE THE SAME. 6. WE , HOWEVER, MAKE IT CLEAR THAT THE ASSESSING OFFICER IS A T LIBERTY TO , IF AT ALL CONSIDERED APPROPRIATE, INITIATE THE FRESH QUANTUM PROCEEDINGS IN THE COURSE OF ITA NO. 679 /AHD/201 3 ASSESSMENT YEAR: 20 07 - 08 PAGE 3 OF 3 REMANDED ASSESSMENT I.E. CALL TO BE TAKEN BY THE ASSESSING OFFICER DEPENDING ON , AND IF NECESSARY , FACTS AND CIRCUMSTANCES OF THE REMANDED ASSESSMENT. WITH TH IS OBSERVATION, PENALTY STAND S DELETED. 7. IN THE RESULT, THE APPEAL IS DISMISSED. P RONOUNCED IN THE OPEN COURT ON THIS 10 TH DAY OF FEBRUARY, 2016 . SD/ - SD/ - S.S. GODARA PRAMOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) PBN/* DATED: THE 10 TH DAY OF MARCH, 201 6 . COPIES TO : (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPEL LATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD