Smt. Shruti R.Desai, Mumbai V. The Dy.CIT., Cent.Circle-1, Baroda

ITSSA 113/AHD/2006

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 7076 (ITAT-AHMEDABAD)
• Duration Of Justice: 14 year(s) 10 month(s) 27 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 07-04-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 06-02-2020
• Assessment Year: misc
• Appeal Filed On: 11-05-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIRENDRA OJHA
• Keywords: Set aside
• Section: 158BC; 13; 158BFA

Judgement Text

, A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD (CONDUCTED THROUGH VIRTUAL COURT) BEFORE SHRI RAJPAL YADAV, VICE-PRESIDENT AND SHRI AMARJIT SINH, ACCOUNTANT MEMBER SR. NO. IT(SS)A.NO. APPELLANT RESPONDENT 1. 112/AHD/2006 BP FROM 1.4.95 TO 19.12.2001 RADHIKA R. DESAI 12, PUSHP VIHAR OPP: RAMSAHEY PANDEY CHAWL COLABA, MUMBAI DCIT, CENT.CIR.1 BARODA. 2. 113/AHD/2006 BP FROM 1.4.95 TO 19.12.2001 SMT.SHRUTI R DESAI 12, PUSHP VIHAR OPP: RAMSAHEY PANDEY CHAWL COLABA, MUMBAI DCIT, CENT.CIR.1 BARODA. 3. 114/AHD/2006 BP FROM 1.4.95 TO 19.12.2001 SHRI RAJENDRA D DESAI 12, PUSHP VIHAR OPP: RAMSAHEY PANDEY CHAWL COLABA, MUMBAI DCIT, CENT.CIR.1 BARODA. ( APPLICANT ) ( RESPONENT ) ASSESSEE BY : SHRI PRATEEK JAIN, AR REVENUE BY : SHRI VIRENDRA OJHA,CIT-DR / DATE OF HEARING : 25/03/2021 / DATE OF PRONOUNCEMENT: 07/04/2021 !'/ O R D E R PER RAJPAL YADAV, VICE-PRESIDENT: PRESENT THREE APPEALS ARE DIRECTED AT THE INSTANCE OF THE ASSESSEES AGAINST SEPARATE ORDERS OF THE LD.CIT(A)-IV, AHMEDA BAD DATED IT(SS)A NO.112 TO 113/AHD/2006 2 25.1.2006 PASSED FOR THE BLOCK PERIOD STARTING FROM 1.4.1995 TO 19.12.2001. SINCE COMMON ISSUE IS INVOLVED IN THE APPEALS OF THE ABOVE APPELLANTS, THEREFORE, WE HEARD THEM TOGETHER AND DEEM IT APPROPRIATE TO DISPOSE OF BY THIS COMMON ORDER. 2. APPELLANTS ARE AGGRIEVED WITH THE IMPOSITION OF PENALTY UNDER SECTION 158BFA(2) OF THE INCOME TAX ACT, 1961. SEC TION 158 CONTEMPLATES THAT IF AN UNDISCLOSED INCOME DISCLOSE D BY THE ASSESSEE IN A BLOCK RETURN IS DETERMINED AT A DIFFERENT FIGU RE BY THE AO IN AN ASSESSMENT ORDER PASSED UNDER SECTION 158BC AND 158 BD FOR THE BLOCK PERIOD, THEN THE DIFFERENTIAL AMOUNT WOULD BE TREATED FOR PENALTY IMPOSABLE UNDER SECTION 158BFA(2). IN OTHER WORDS, FOR EXAMPLE, IF AN ASSESSEE HAS DISCLOSED UNDISCLOSED INCOME AT RS. 100/- AND IN THE ASSESSMENT ORDER THIS INCOME HAS BEEN DETERMINED AT RS.120/-, THEN THE DIFFERENCE OF RS.20/- WOULD BE CONSIDERED FOR I MPOSITION OF PENALTY UNDER SECTION 158BFA(2) OF THE ACT. THUS, IN ALL THESE THREE APPEALS, THE PENALTY UNDER SECTION 158BFA(2) WAS IM POSED. 3. THE APPEALS OF THE APPELLANTS BEFORE THE LD.CIT( A) WERE DISMISSED ON THE GROUND THAT THEY HAVE NOT PAID TAX ES ON THE RETURNED INCOME, AND THUS COMMITTED A BREACH OF SECTION 249( 4) OF THE ACT. THE LD.COMMISSIONER FURTHER OBSERVED THAT QUANTUM A PPEALS OF THESE APPELLANTS HAVE ALSO BEEN DISMISSED FOR THIS BREACH . THEREFORE, THEIR APPEALS AGAINST THE ORDER UNDER SECTION 158BFA ARE ALSO NOT MAINTAINABLE. 4. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, W E HAVE GONE THROUGH THE RECORD CAREFULLY. IT HAS BEEN BROUGHT TO OUR NOTICE THAT IN THE CASE OF MS.RADHIKA R. DESAI, THAT ASSESSEE HAS CHALLENGED ORDER OF IT(SS)A NO.112 TO 113/AHD/2006 3 THE CIT(A) IN THE QUANTUM APPEAL. THIS TRIBUNAL HA S SET ASIDE THE ORDER OF THE CIT(A) AND RESTORED THIS APPEAL TO THE FILE OF THE LD.CIT(A). THE ORDER PASSED IN THE CASE OF MS.RADHI KA R. DESAI IN IT(SS)A.NO.24/AHD/2006, WHICH HAS BEEN TRANSFERRED TO ITAT, MUMBAI BENCH READS AS UNDER: 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS IN THE LIGHT OF MATERIAL PLACED BEFORE US. THE APPEAL FILED BY THE ASSESSEE WAS EARLIER DISPOSED OF BY CIT(APPEALS) VIDE HIS ORDER DATED 13 TH FEBRUARY, 2004 ON THE GROUND OF APPLICATION OF SECTION 249(4) (A). THE ASSESSEE PLEADED FINANCIAL CONTINGENCY TO MAKE THE PAYMENT O F TAX ON RETURNED INCOME. HOWEVER, SUBSEQUENT OF PASSING THE ORDER DATED 13TH FEBRUARY, 2004, ASSESSEE HAS MADE THE PAYMENT OF TAX ON RETURNED INCOME WHICH IS AMOUNTED TO RS.6,78,456/- ON 30TH JUNE, 2004, COPY FOR SUCH RECEIPT HAS ALREADY BEEN FILED. THE ASSESSEE REQUESTED THE LEARNED CIT(APPEALS) FOR RECALLING OF THE ORDER AS THE DEFECT OF NON-PAYMENT OF TAX ON RETURNED INCOME WAS REMOVED. HOWEVER, LEARNED CIT(APPEALS) AFTER DISTINGUISHING AFOREMENTIONED DECISION OF AHMEDABAD ITAT HAS AGAIN DISMISSED THE APPEAL FILED BY THE ASSESSEE ON GROUND OF APPLICATION OF SECTION 24 9(4). IN THE SECOND DECISION WHICH IS RENDERED BY COORDINATE BEN CHE OF MUMBAI ITAT, A PROPOSITION HAS BEEN LAID DOWN THAT CIT(APP EALS) SHOULD REVIVE THE APPEAL EARLIER DISMISSED ON ACCOUNT OF A PPLICATION OF SECTION 249(4), IF ASSESSEE HAS REMOVED THE DEFE CT OF PAYMENT OF TAX ON RETURNED INCOME. NO CONTRARY DECISION HAS BE EN BROUGHT TO OUR NOTICE. THEREFORE, RESPECTFULLY FOLLOWING THE D ECISION OF COORDINATE BENCH IN THE CASE OF BHUMIRAJ CONSTRUCTI ONS VS. ADDL CIT (SUPRA), WE SET ASIDE THE IMPUGNED ORDERS OF LE ARNED CIT(APPEALS) VIDE WHICH THE APPEAL FILED BY THE ASS ESSEE HAS BEEN DISMISSED ON ACCOUNT OF APPLICATION OF SECTION 249( 4) AND THE MATTER IS RESTORED BACK TO THE FILE OF LEARNED CIT(APPEALS ) FOR DISPOSAL OF THE APPEAL ON MERITS AS THE ASSESSEE HAS ALREADY MA DE THE PAYMENT OF TAXES ON RETURNED INCOME. WITH THESE OBSERVATION S, WE ALLOW THE APPEAL FILED BY THE ASSESSEE AND DIRECT THE LEARNED CIT(APPEALS) TO DECIDE THE APPEAL FILED BY THE ASSESSEE ON MERITS A FTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF HEARING. 5. RESPECTFULLY FOLLOWING THE ORDER OF THE ITAT, MU MBAI BENCH (SUPRA), PASSED IN THE QUANTUM OF APPEAL OF THE APP ELLANT, WE ALLOW ALL IT(SS)A NO.112 TO 113/AHD/2006 4 THESE THREE APPEALS AND SET ASIDE THE ISSUE TO THE FILE OF THE CIT(A) FOR RE-ADJUDICATION. 6. IN THE RESULT, ALL THREE APPEALS OF THE ASSESSEE S ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 7 TH APRIL, 2021 AT AHMEDABAD. S D / - (AMARJIT SINGH) ACCOUNTANT MEMBER S D / - (RAJPAL YADAV) VICE-PRESIDENT AHMEDABAD; DATED 07/04/2021