Shri Ashok L Dave, Ahmedabad V. Income Tax Officer, Ahmedabad

ITA 791/AHD/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8707 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-08-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 07-04-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: T P HEMANI
• Section: 6

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ./ ITA NO. 791/AHD/2015 / ASSESSMENT YEAR: 2009-10 SHRI ASHOK L. DAVE, SURVEY NO.13, S.G. HIGHWAY, NR. GOTA CROSS ROADS, AHMEDABAD PAN : ALCPD 7505 Q VS. THE ITO, WARD 11(3), AHMEDABAD / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI T. P. HEMANI, AR REVENUE BY : SHRI PRASOON KABRA, SR DR ! / DATE OF HEARING : 25/07/2017 / DATE OF PRONOUNCEMENT: 01/08/2017 / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS), AHMED ABAD-5, AHMEDABAD DATED 30.01.2015 PASSED FOR ASSESSMENT YE AR 2009-10. 2. THOUGH THE ASSESSEE HAS TAKEN SEVEN GROUNDS OF A PPEAL, HIS MAIN GRIEVANCE REVOLVES AROUND THE ISSUE AS TO WHETHER T HE CIT(A) IS JUSTIFIED IN CONFIRMING THE LEVY OF PENALTY OF RS.31,47,068/- U/ S 271(1)(C) OF THE INCOME- TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ). 3. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT THE QUANTUM ADDITION WAS CHALLENGED BY THE ASSESSEE IN APPEAL BEFORE THE TRIBUNAL AND ITAT VIDE ITS ORDER DATED 14.06.2017 I N ITA NO.531/AHD/2014 HAS SET ASIDE THE SAME BY FOLLOWING OBSERVATIONS:- ITA NO. 791/AHD/2015 SHRI ASHOK L DAVE VS. ITO FOR AY: 2009-10 2 2. THOUGH THE ASSESSEE HAS TAKEN FIFTEEN GROUNDS OF APPEAL, BUT IN GROUND NO. 1, THE ASSESSEE HAS PLEADED THAT THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE EX PARTE ON ACCOUNT OF NON-PROSECUTION . SUB-SECTION 6 OF SECTION 250 OF THE INCOME-TAX ACT, 1961 CONTEMPLATES THAT T HE LD. CIT(A) WOULD STATE POINTS FOR DETERMINATION AND RECORD REASONS F OR HIS DECISION ON THOSE POINTS OF DISPUTES. WE FIND THAT THE LD. CIT(A) HA S FAILED TO ADHERE TO THE ABOVE PROCEDURE, AND THEREFORE, WE SET ASIDE ORDER OF THE LD. CIT(A) AND RESTORE THE ISSUES BACK TO THE FILE OF THE LD. CIT( A) TO BE DECIDED ON MERIT. 4. IT IS FURTHER CONTENDED THAT IN THE CONSEQUENT A SSESSMENT PROCEEDINGS, THE LD. ASSESSING OFFICER HAS INITIATED SEPARATE PR OCEEDINGS U/S 271(1)(C) OF THE ACT, AND SINCE THE IMPUGNED ASSESSMENT ORDER IT SELF STANDS SET ASIDE BY THE TRIBUNAL, THE PENALTY IN QUESTION CANNOT SURVIV E. 5. WITH THE ASSISTANCE OF THE LD. REPRESENTATIVES, WE HAVE GONE THROUGH THE RECORD CAREFULLY. WE HAVE ALSO PERUSED THE ORD ER OF THE TRIBUNAL IN ITA NO.531/AHD/2014 AND ARE SATISFIED THAT THE ISSUE WI TH REGARD TO THE DETERMINATION OF THE INCOME OF THE ASSESSEE HAS BEE N SET ASIDE TO THE FILE OF THE LD. CIT(A) FOR FRESH ADJUDICATION. SUB-CLAUSE (III) OF SECTION 271(1)(C) PROVIDES MECHANISM FOR QUANTIFICATION OF PENALTY. IT CONTEMPLATES THAT THE ASSESSEE WOULD BE DIRECTED TO PAY A SUM IN ADDITION TO TAXES, IF ANY, PAYABLE HIM, WHICH SHALL NOT BE LESS THAN, BUT WHICH SHALL NOT EXCEED THREE TIMES THE AMOUNT OF TAX SOUGHT TO BE EVADED BY REASON OF CONC EALMENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME. IN OTHER WORDS, THE QUANTIFICATION OF THE PENALTY IS DEPENDED UPON THE ADDITIONS MADE TO THE INCOME OF THE ASSESSEE. UPTO AND UNTIL THE ISSUE R EGARDING DETERMINATION OF THE TAXABLE INCOME IS FINALIZED, PENALTY UNDER SECT ION 271(1)(C) OF THE ACT CANNOT BE IMPOSED UPON THE ASSESSEE. THE DETERMINAT ION OF TAXABLE INCOME OF THE ASSESSEE IS SUBJUDICED BEFORE THE LD. CIT(A) . WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER AND RESTORE THIS ISSUE TO THE FI LE OF THE LD. CIT(A). LD. ITA NO. 791/AHD/2015 SHRI ASHOK L DAVE VS. ITO FOR AY: 2009-10 3 FIRST APPELLATE AUTHORITY SHALL DECIDE THE PENALTY APPEAL AFTER ADJUDICATION OF THE QUANTUM APPEAL. IN VIEW OF THE ABOVE, THIS APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. [ ORDER PRONOUNCED IN THE COURT ON 1 ST AUGUST, 2017 AT AHMEDABAD. SD/- SD/- (MANISH BORAD) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 01/08/2017 BIJU T., SR.PS ! &'( )( / 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