Bijal P. Shah, Surat V. The Income tax Officer-Ward-3(3), Surat

ITA 787/AHD/2013

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 2413 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 09-02-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 18-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J P JANGID
• Keywords: Gift; Opportunity of being heard
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH AHMEDABAD BEFORE S/SHRI KUL BHARAT, JM, & MANISH BORAD, AM . ITA NO.787/AHD/2013 ASST. YEAR: 2005-06 SMT. BIJAL P. SHAH, 803,SHIVANJALI APARTMENT, HOTEL CENTRE COURT LANE, ATHWALINES, SURAT. VS. INCOME-TAX OFFICER, WARD 3(3), SURAT. APPELLANT RESPONDENT PAN ACQPS 9790K APPELLANT BY NONE RESPONDENT BY SHRI J. P. JANGID, SR.DR DATE OF HEARING: 9/2/2016 DATE OF PRONOUNCEMENT: 01/03/2016 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER. THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A)-IV, SURAT DATED 31.01.2013 PASSED FOR ASST. YEAR 2005-06 AGAINST THE ORDER U/S 271(1)(C) OF THE I.T. ACT, 19 61 (IN SHORT THE ACT) PASSED BY ITO, WARD -3(3), SURAT ON 30.03.2010. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED CIT(A) HAS ERRED IN CONFIR MING THE ITA NO. 787/AHD/2013 ASST. YEAR2005-06 2 ACTION OF THE ASSESSING OFFICER IN LEVYING PENALTY OF RS.20,80,524/- U/S 271(1)(C) ON THE ADDITION OF RS. 70,00,000/- MADE U/S 68 OF THE ACT ON ACCOUNT OF GIFTS RECEIVED BY THE ASSESSEE. 2. IT IS THEREFORE PRAYED THAT THE ABOVE PENALTY LE VIED BY ASSESSING OFFICER AND CONFIRMED BY CIT(A) MAY PLEAS E BE DELETED. 3. APPELLANT CRAVES LEAVE TO ADD, ALTER OR DELETE A NY GROUNDS EITHER BEFORE OR IN THE COURSE OF HEARING OF THE AP PEAL. 2. BRIEFLY STATED FACTS AS CULLED OUT FROM THE AVAI LABLE RECORDS ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND IS ENGAGED I N THE OF RETAIL TRADING OF SAREES. SHE FILED HER RETURN OF INCOME O N 4.7.2005 SHOWING TOTAL INCOME AT RS.55,080/- FOR ASST. YEAR 2005-06. THE CASE WAS SELECTED FOR SCRUTINY ASSESSMENT AND NOTICE U/S 143 (2) OF THE ACT WAS ISSUED AND SERVED ON THE ASSESSEE. 3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT W AS OBSERVED BY THE ASSESSING OFFICER THAT ASSESSEE HAS RECEIVED GIVTS OF RS.70,00,000/- FROM THE FOLLOWING PERSONS :- SMT. DIVYABEN A. PATEL RS.45,00,000 SMT. LALITABEN A. SHAH RS.12,00,000 SMT. FALGUNI RATILAL SHAH RS. 5,00,000 SHRI CHANDRAVADAN I. PAREKH RS. 8,00,000 ITA NO. 787/AHD/2013 ASST. YEAR2005-06 3 ASSESSING OFFICER WAS NOT SATISFIED WITH THE SUBMIS SIONS OF ASSESSEE AND TREATED THE GIFTS AS UNEXPLAINED AND MADE ADDIT ION U/S 68 OF THE ACT AS UNDISCLOSED INCOME AND MAKING ADDITION OF RS .70,00,000/- TO THE INCOME OF ASSESSEE ASSESSED THE INCOME AT RS.70 ,55,080/- AND ALSO INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT. SUBSEQUENTLY, THE ASSESSING OFFICER IMPOSED PENALTY OF RS.20,90,524/-. 4. IN QUANTUM PROCEEDINGS, AGGRIEVED, ASSESSEE WENT IN APPEAL BEFORE LD. CIT(A) WHICH DID NOT BRING ANY RELIEF TO THE ASSESSEE. LD. CIT(A) CONFIRMED THE ADDITION VIDE HIS ORDER DATED 27.02.2009. THEREAFTER ASSESSEE WENT IN APPEAL BEFORE THE TRIB UNAL WHICH VIDE ITS ORDER IN ITA NO.1653/AHD/2009 FOR ASST. YEAR 20 05-06 DATED 13..11.2013 SET ASIDE THE MATTER TO THE FILE OF LD. CIT(A). MEANWHILE THE LD. CIT(A) CONFIRMED THE PENALTY OF RS.20,90,52 4/- VIDE HIS ORDER DATED 31.01.2013. 5. AGGRIEVED, ASSESSEE WENT IN APPEAL BEFORE LD. CI T(A) AGAINST THE ORDER U/S 271(1)(C) PASSED BY ASSESSING OFFICER . BUT THE PENALTY WAS CONFIRMED BY LD. CIT(A). ITA NO. 787/AHD/2013 ASST. YEAR2005-06 4 6. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNA L AGAINST THE ORDER OF LD. CIT(A) DATED 31.1.2013. 7. NONE APPEARED ON BEHALF OF THE ASSESSEE. SO WE P ROCEED TO DECIDE THE APPEAL ON THE BASIS OF WRITTEN SUBMISSIO NS MADE BY THE ASSESSEE AND AFTER HEARING THE LD. DR. 8. WE HAVE CONSIDERED THE CONTENTIONS OF LD. DR AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE AS AVAILABLE ON RECORD. WE FIND THAT THIS APPEAL IS AGAINST THE IMP OSITION OF PENALTY OF RS.20,90,524/- U/S 271(1)(C) OF THE ACT ON ACCOUNT OF ADDITION MADE U/S 68 OF THE ACT AT RS.70 LACS. WE FURTHER FIND TH AT THE MATTER RELATING TO QUANTUM ADDITION OF RS.70 LACS HAS TRAVELLED UPT O THE TRIBUNAL AND THE SAME HAS BEEN SET ASIDE TO THE FILE OF LD. CIT( A) VIDE ITS ORDER DATED 13.11.2013 IN ITA NO. 1653/AHD/2009 FOR ASST. YEAR 2005-06 WHEREIN THE TRIBUNAL HAS OBSERVED AS UNDER :- 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. LD. CIT(A) FORWARDED THE COPY OF THE STATEM ENTS TO THE AR FOR HIS COMMENT. IT APPEARS THAT ASSESSEE DID NOT SEEK CROS S-EXAMINATION OF THE DONOR BEFORE LD. CIT(A) AND THE LD. CIT(A) HAS TAKE N DECISION ON THE BASIS OF THE STATEMENT RECORDED DURING THE APPELLATE PROC EEDINGS AND FACTS OF EACH DONOR. THEREFORE, IN THE INTEREST OF JUSTICE T HE ASSESSEE SHOULD BE ALLOWED CROSS-EXAMINATION OF THE DONOR. ACCORDINGLY WE SET ASIDE THE ORDER OF LD. CIT(A) AS PER ABOVE FINDINGS AND PROVI DE A REASONABLE OPPORTUNITY OF BEING HEARD TO THE APPELLANT. ITA NO. 787/AHD/2013 ASST. YEAR2005-06 5 9. WE FIND THAT THE ORDER WAS PRONOUNCED ON 13.11.2 013 WHEREAS THE LD. CIT(A) HAS PASSED HIS ORDER CONFIRMING THE PENALTY ON 31.1.2013 AND AS APPRAISED BY LD. AR THROUGH HIS WR ITTEN SUBMISSION THAT THE FRESH ORDER GIVING EFFECT TO THE ORDER OF CO-ORDINATE BENCH HAS NOT BEEN PASSED BY THE LD. CIT(A) IN RELATION TO TH E QUANTUM ADDITION AND, THEREFORE, AS REQUESTED THAT THE ISSUE RELATIN G TO PENALTY MAY ALSO BE SET ASIDE TO THE FILE OF LD. CIT(A). LD. DR HAS NO OBJECTION TO THE SAME. IN THESE CIRCUMSTANCES, WE ARE OF THE VIE W THAT THE ISSUE RELATING TO IMPOSITION OF PENALTY U/S 271(1)(C) OF THE ACT MAY BE SET ASIDE TO THE FILE OF LD. CIT(A) AND WE DO SO. THE G ROUND RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 10. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 01 MARCH, 20 16 SD/- SD/- (KUL BHARAT) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER DATED 01/03/2016 MAHATA/- ITA NO. 787/AHD/2013 ASST. YEAR2005-06 6 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: 9/02/2016 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 15/02/2016 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 1/3/16 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: