The DCIT, Circle-5, Ahmedabad V. Shri Rakeshbhai K.Patel, Ahmedabad

ITA 994/AHD/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 5754 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 3 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-07-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 13-07-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 17-03-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJEEV AGARWAL
• Section: 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI N.S.SAINI, ACCOUNTANT MEMBER DATE OF HEARING :13-7-2010 DRAFTED ON :13-7-2010 ITA NO.994 /AHD/2008 ASSESSMENT YEAR :2002-03 DEPUTY COMMISSIONER OF INCOME TAX,CIRCLE-5 C.U.SHAH BUILDING, ASHRAM ROAD, AHMEDABAD. VS. SHRI RAKESHBHAI K. PATEL, NIRMA HOUSE, ASHRAM ROAD, AHMEDABAD. PAN/GIR NO. : AGGPP2910 C (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI RAJEEV AGARWAL, D.R. RESPONDENT BY: SHRI HIMANSHU SHAH. O R D E R PER N.S.SAINI , ACCOUNTANT MEMBER :- THIS IS AN APPEAL FILED BY THE REVENUE AGAINST TH E ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-XI , AH MEDABAD DATED 11-01-2008. 2. THE SOLE GROUND OF APPEAL RAISED BY THE REVENUE READS AS UNDER :- THE LEARNED COMMISSIONER OF INCOME TAX (A)-XI, AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING PENALTY OF RS.3,82,80,651/- LEVIED UNDER SECTION 271(1) (C) OF THE INCOME TAX ACT,1961. - 2 - 3. THE BRIEF FACTS OF THE CASE ARE THAT THE LEARNED ASSESSING OFFICER WHILE FINALIZING THE ASSESSMENT THE ASSESSI NG OFFICER TREATED THE LONG TERM CAPITAL GAIN OF RS.2,21,55,222/- FROM THE TRANSACTIONS OF 1002DDBS OF THE NIRMA LIMITED, AS SHORT TERM CA PITAL GAIN RELYING ON CIRCULAR 2 OF 2002 ISSUED BY THE CBDT. F URTHER, THE ASSESSING OFFICER HAS MADE AN ADDITION OF 1,44,50,0 00/- ON ACCOUNT OF INTEREST INCOME FROM 850 DDBS OF NIRMA LTD. WHIC H HAD BEEN REPURCHASED BY THE ISSUER ITSELF. THE ASSESSEE HAD HOWEVER OFFERED LONG TERM CAPITAL GAIN (LONG TERM CAPITAL GAIN) ON THESE 850 DDBS AND HAS CLAIMED DEDUCTION UNDER SECTION 54 EC OF THE I.T.ACT. ACCORDINGLY, THE ASSESSEES CLAIM OF DEDUC TION UNDER SECTION 54EC OF THE I.T.ACT OF RS.3,66,00,000/- WAS ALSO NO T ALLOWED TO THE ASSESSEE SINCE THE SAME CAN BE CLAIMED ONLY AGAINST THE LONG TERM CAPITAL GAIN AS PER THE PROVISIONS OF THE ACT. 4. SIMILARLY THE ASSESSING OFFICER HAS MADE AN ADDI TION OF RS.48,83,858/- ON ACCOUNT OF ACCRUED INTEREST FROM 1250 SERIES B DDBS ALLOTTED TO THE ASSESSEE. RELYING ON THE BOARD CIRCULAR DATED 15-02-2002. 5. THE ACTION OF THE LEARNED ASSESSING OFFICER WAS CONFIRMED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS). 6. THEREAFTER, THE LEARNED ASSESSING OFFICER LEVIED PENALTY OF RS.3,82,80,651/- UNDER SECTION 271(1)(C) OF THE ACT FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME AND THEREBY CONCEA LING THE INCOME, WHICH WAS DELETED IN APPEAL BY THE LEARNED COMMISSI ONER OF INCOME TAX(APPEALS). - 3 - 7. THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASS ESSEE FILED COPY OF ORDER OF THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2002-03 DATED 29-1-2010PASSED IN IT A NO.1249/AHD/2006 IN QUANTUM APPEAL OF THE ASSESSEE AND SUBMITTED THAT THE TRIBUNAL HAS RESTORED THE ISSUES OF ADDITI ONS TO THE FILE OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) FOR REA DJUDICATING THE SAME. THEREFORE, THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FO R DECIDING THE ISSUE OF LEVY OF PENALTY IN ACCORDANCE WITH THE DE CISION TAKEN BY HIM IN THE QUANTUM APPEAL OF THE ASSESSEE. 8. THE LEARNED DEPARTMENTAL REPRESENTATIVE ALSO AGR EED WITH THE SUBMISSION OF THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE. 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. BOTH THE PARTIES HAVE AGREED T HAT THE ISSUE OF PENALTY HAS TO BE RESTORED BACK TO THE FILE OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FOR FRESH ADJU DICATION IN THE LIGHT OF THE ORDER PASSED BY THE LEARNED COMMISSION ER OF INCOME TAX (APPEALS) IN THE QUANTUM APPEAL OF THE ASSESSEE WHICH WAS RESTORED BACK BY THE TRIBUNAL VIDE ORDER DATED 29-1 -2010 IN ITA NO.1249/AHD/2006. WE FIND THAT THE TRIBUNAL IN ASSE SSMENT YEAR 2002-03 HELD AS UNDER :- 17 WE FIND THAT THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS NOT GIVEN THE REASONS WHILE DECIDING THE APPEAL OF THE ASSESSEE. THUS, TH E ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) IS A NON-SPEAKING ORDER. THE - 4 - LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS RELIED ON HIS ORDER PASSED IN THE CASE OF HARSIDDH SPECIFIC FAMILY TRUST AND SHRI KARSANBHAI K PATEL (HUF). IT IS THE DUTY OF THE LEARNED COMMISSIONER O F INCOME-TAX (APPEALS) TO GIVE REASONS FOR EACH GROUNDS OF APPEAL DECIDED BY HIM SO THAT THE AGGRIEVED PARTY CAN PLEAD HIS CASE BEFORE THE HIGHE R FORUM WHO CAN ALSO APPRECIATE THE DECISION OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS). THUS, WE ARE UNABLE TO ADJUDICATE THE APPEAL OF THE ASSESSEE. HENCE THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) IS SET ASIDE AND THE MATTER IS REMANDED BACK TO HIS FILE TO PASS A WELL-REASONED AND SPEAKING ORDER AFTER ALLOWING REASONABLE AND PROPER OPPORTUNITY OF HEARING. THEREFORE, WE SET ASIDE THE ORDER OF THE LEARNED CO MMISSIONER OF INCOME TAX (APPEALS) AND REMAND THE MATTER BACK TO HIS FILE FOR FRESH ADJUDICATION IN THE LIGHT OF THE ORDER PASSED IN THE QUANTUM APPEAL PURSUANCE TO THE ORDER OF THE TRIBUNAL DATED 29-1-2010. THEREFORE, THE GROUND OF APPEAL OF THE REVENUE IS A LLOWED FOR STATISTICAL PURPOSES. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 16TH DAY OF JULY, 2010. SD/- SD/- (BHAVNESH SAINI) ( N.S. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; ON THIS 16 TH DAY OF JULY, 2010 PATKI - 5 - COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)- 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD DATE INITIALS 1. DRAFT DICTATED ON 13-7-10 2. DRAFT PLACED BEFORE AUTHORITY 15-7-10 3. DRAFT PROPOSED & PLACED 15-7-10 JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED 15-7-10 JM/AM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO P.S 16-7-10 6. KEPT FOR PRONOUNCEMENT ON 16-7-10 7. FILE SENT TO THE BENCH CLERK 16-7-10 8. DATE ON WHICH FILE GOES TO THE 9. DATE OF DISPATCH OF ORDER