The Udhna Udhyognagar Sahakari Sangh Ltd., Surat V. The ACIT.,Circle-2, Surat

ITA 746/AHD/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 63100 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 26-10-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 10-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K SINGH
• Assessee Lawyers: DIVYAKANT PARIKH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, AHMEDABAD BEFORE SHRI G. C. GUPTA, HONBLE VICE PRESIDENT AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO.746 / AHD/2010 (ASSESSMENT YEAR 2005-06) THE UDHNA UDYOGNAGAR SAHKARI SANGH LTD., CENTRAL ROAD NO.10, POST BOX NO.1224, UDYOGNAGAR, UDHNA, SURAT -394210 VS. ACIT, CIRCLE 2, SURAT PAN/GIR NO. : AAAAT2932K (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI DIVYAKANT PARIKH, AR RESPONDENT BY: SHRI D K SINGH, SR. DR DATE OF HEARING: 26.10.2012 DATE OF PRONOUNCEMENT: 30.11.2012 O R D E R PER SHRI A. K. GARODIA, AM:- THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORD ER OF LD. CIT(A) 2 SURAT DATED 20.01.2010 FOR THE ASSESSMENT YEAR 2005 -06. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1. THAT THE CIT(A) ERRED IN CONFIRMING PENALTY U/S 271(1)(C) OF RS.1,65,838/-. 2. THAT THE CIT(A) ERRED IN HOLDING THAT THE CLAIM OF ASSESSEE IS FALSE AND THE SAME IS ACCEPTED BY ASSESSEE. THERE W AS NO QUESTION OF ACCEPTING DEBATABLE CLAIM. 3. THE CIT(A) ERRED IN NOT REDUCING THE PENALTY LEV IED AS A CALCULATION MISTAKE. 3.A THAT THE A.O. ERRED IN ISSUING DEFECTIVE NOTICE U/S 156 NOT SPECIFYING DEMAND PAYABLE. I.T.A.NO. 746 /AHD/2010 2 4. THAT THE PENALTY LEVIED OF RS.1,65,838/- MAY KIN DLY BE CANCELLED. 2. AT THE VERY OUTSET, IT WAS SUBMITTED BY THE LD. A.R. THAT IN QUANTUM PROCEEDINGS, THE ADDITION MADE BY THE A.O. ON WHICH PENALTY WAS LEVIED, HAS BEEN SET ASIDE TO THE FILE OF LD. C IT(A) FOR A FRESH DECISION IN I.T.A.NO. 1215 AND 2021/AHD/2008 DATED 24.09.2010. HE SUBMITTED THAT UNDER THEE FACTS, THE PENALTY ISSUE MAY ALSO BE RESTORED BACK TO HIS FILE FOR A FRESH DECISION SIMULTANEOUSL Y. 3. LD. D.R. SUPPORTED THE ORDERS OF AUTHORITIES BEL OW. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT Y BELOW. WE FIND THAT THE PENALTY WAS IMPOSED BY THE A.O. IN RESPECT OF C ONCEALMENT OF INCOME TO THE EXTENT OF 5,26,472/- WHICH WAS TREATED BY TH E A.O. AS INCOME FORM BUSINESS AS AGAINST THE INCOME FORM HOUSE PROPERTY DECLARED BY THE ASSESSEE. AS PER THE TRIBUNAL ORDER IN QUANTUM PRO CEEDINGS THIS ISSUE WAS SET ASIDE BY THE TRIBUNAL TO THE FILE OF LD. CIT(A) FOR A FRESH DECISION AS PER PARA 5.4 OF THE TRIBUNAL ORDER. UNDER THESE FA CTS, WE FEEL THAT THE PENALTY ISSUE SHOULD ALSO BE RESTORED BACK TO THE F ILE OF LD. CIT(A) FOR A FRESH DECISION SIMULTANEOUSLY WITH HIS ORDER IN QUA NTUM PROCEEDINGS AND IF THE QUANTUM PROCEEDINGS HAS ALREADY BEEN DECIDED BY HIM THEN IN THE LIGHT OF HIS FRESH ORDER IN QUANTUM PROCEEDINGS. W E, THEREFORE, SET ASIDE THE ORDER OF LD. CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE FOR AFRESH DECISION. HE SHOULD PASS ORDER IN PENALTY PROCEEDI NGS SIMULTANEOUSLY WITH HIS ORDER PASSED IN QUANTUM PROCEEDINGS AND IN CASE HE HAS ALREADY PASSED FRESH ORDER IN QUANTUM PROCEEDINGS, HE SHOUL D DECIDE THIS PENALTY ISSUE AFRESH IN THE LIGHT OF HIS FRESH DECISION IN QUANTUM PROCEEDINGS. I.T.A.NO. 746 /AHD/2010 3 NEEDLESS TO SAY, HE SHOULD PROVIDE ADEQUATE OPPORTU NITY OF BEING HEARD TO BOTH THE SIDES. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. 6. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (G. C. GUPTA) (A. K. GARODIA) VICE PRESIDENT ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 22/11/2012 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 23/11/2012.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 30/11/2012 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.30/11 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 30/11/2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .