Shri Laxmandas Sujandas Dalpat, Ahmedabad V. The Income tax Officer,Ward-9(2), Ahmedabad

ITA 746/AHD/2009

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9217 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 21-07-2009
• Assessment Year: 2002-2003
• Appeal Filed On: 06-03-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M C
• Assessee Lawyers: S N DIVETIA
• Keywords: Gift; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI A.N.PHAUJA, ACCOUNTANT MEMBER ITA NO.746/AHD/2009 ASSESSMENT YEAR:2002-03 DATE OF HEARING: 21.7.09 DRAFTED: 22.7.09 LAXMANDAS SUJANDAS DALPAT, C-28, C.32, STERLING CO-OP. HOUSING SOCIETY, OPP. DENA BANK, BOPAL, AHMEDABAD PAN NO.ABERD5940K V/S. INCOME TAX OFFICER, WARD-9(2), AHMEDABAD (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI S.N.DIVETIA, AR RESPONDENT BY:- SHRI M.C. PANDIT, SR. DR O R D E R PER MAHAVIR SINGH, JUDICIAL MEMBER:- THIS APPEAL BY THE ASSESSEE IS ARISING OUT OF THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-XV, AHMEDABAD IN APPEAL NO. CI T(A)-XV/WD.9(1)/104/2008 DATED 07-01-2009. THE ASSESSMENT WAS FRAMED BY THE ITO WARD-9(2), AHMEDABAD U/S.143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 15-03-2005 FOR THE ASSESSMENT YEAR 2002 -03. THE PENALTY UNDER DISPUTE WAS LEVIED BY THE ITO, WARD-9(2), AHMEDABAD U/S.271(1)(C) OF THE ACT VIDE HIS ORDER DATED 12-12-2007. 2. THIS APPEAL OF THE ASSESSEE IS AGAINST THE ORDER OF CIT(A) IN CONFIRMING THE PENALTY LEVIED BY THE ASSESSING OFFICER U/S.271(1)( C) OF THE ACT ON UNEXPLAINED GIFTS. 3. AT THE OUTSET, IT IS NOTICED FROM THE ORDER OF C IT(A) THAT HE CONFIRMED THE PENALTY ORDER JUST ON THE BASIS OF TRIBUNALS DECIS ION IN QUANTUM APPEAL, WHICH IS CONFIRMED BY THE TRIBUNAL. THE CIT(A) JUST ON THE BASIS OF FINDINGS IN THE QUANTUM ITA NO.746/AHD/2009 A. Y. 2002-03 LAXMANDAS S DALPAT V. ITO WD-9(2) ABD PAGE 2 APPEAL, WHICH IS DISMISSED BY THE TRIBUNAL BY STATI NG IN PARA-4 OF HIS APPELLATE ORDER AS UNDER:- 4. AFTER GOING THROUGH RIVAL SUBMISSIONS IT IS SEE N THAT HONBLE ITAT AHMEDABAD D BENCH VIDE ORDER DATED 2.3.2007 HAS D ISCUSSED IN GREAT DETAIL THE GIFTS RECEIVED BY THE APPELLATE AND CONFIRMED T HE ADDITION MADE BY THE AO U/S.68. HONBLE ITAT WAS NOT CONVINCED ABOUT THE CR EDIT WORTHINESS OF THE DONORS. ORDER OF ITAT IS ENCLOSED AS ANNEXURE 1 OF THIS ORDER FOR READY REFERE4NCE. THIS ORDER PROVES BEYOND DOUBT THAT THE APPELLATE DID CONCEAL PARTICULARS OF INCOME AND FURNISHED INACCURATE PART ICULARS. FURTHER, THE CASES CITED BY THE AUTHORIZED REPRESENTATIVE ARE NOT APPL ICABLE IN THE PRESENT CASE BECAUSE THEIR FACTS AND CIRCUMSTANCES ARE DIFFERENT FORM THOSE OF THE PRESENT CASE. RELYING ON THE FINDING GIVEN BY THE HIGHEST F ACT FINDING AUTHORITY IN THE APPELLANTS OWN CASE (ANNEXURE 1 OF THIS ORDER) THE PENALTY LEVIED BY THE A.O IS CONFIRMED. WE FIND THAT THE ASSESSEES EXPLANATION HAD NOT BEE N CONSIDERED, AS THE ASSESSEE HAS FILED THE EXPLANATION BEFORE THE ASSESSING OFFI CER VIDE LETTER DATED 23-07-2007 DURING THE PENALTY PROCEEDINGS. THE QUANTUM ADDITIO N MIGHT HAVE BEEN CONFIRMED BY THE TRIBUNAL BUT ASSESSEES EXPLANATION SHOULD HAVE BEEN CONSIDERED WHETHER THE SAME IS BONA FIDE OR NOT. ACCORDINGLY, THE CIT(A) IS DIRECTED TO PA SS A SPEAKING ORDER IN RESPECT OF LEVY OF PENALTY AND THE EXPLANA TION SUBMITTED BY THE ASSESSEE. ACCORDINGLY, THIS PENALTY APPEAL IS SET ASIDE TO TH E FILE OF THE CIT(A) TO ADJUDICATE AFRESH AFTER BEING HEARD A REASONABLE OPPORTUNITY O F THE ASSESSEE. 4. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 04/09/2009 SD/- SD/- (A.N.PHAUJA) (MAHAVIR SINGH) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, DATED : 04/09/2009 *DKP COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)-XV, AHMEDABAD 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, /TRUE COPY/ ITA NO.746/AHD/2009 A. Y. 2002-03 LAXMANDAS S DALPAT V. ITO WD-9(2) ABD PAGE 3 DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD