The DCITMehsana Circle, Mehsana V. Shri Jayesh Chandulal Patel, Mehsana

ITSSA 115/AHD/2010

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 7902 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 10 month(s) 18 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 27-12-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 27-12-2011
• Assessment Year: 1999-2000
• Appeal Filed On: 09-02-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD , .. !', #$ # % BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI B.P.JAIN, ACCOUNTANT MEMBER APPEALS/COS BY APPELLANT VS. RESPONDENT SL.NOS IT(SS)A NOS/ CO NOS. ASST.YEAR(S) APPELLANT RESPONDENT 1. 115/AHD/2010 1999-2000 DCIT, MEHSANA CIRCLE, MEHSANA SHRI JAYESH CHANDULAL PATEL C/O.VIMAL ELECTRIC CO. 31, GIDC ESTATE HIGHWAY, MEHSANA PAN: ABXPP 2978 G 2. 116/AHD/2010 2000-01 REVENUE ASSESSEE 3. 117/AHD/2010 2001-02 REVENUE ASSESSEE 4. 118/AHD/2010 2002-03 REVENUE ASSESSEE 5. 119/AHD/2010 2003-04 REVENUE ASSESSEE 6. 120/AHD/2010 2004-05 REVENUE ASSESSEE 7. CO 81/AHD/2010 (IN IT(SS)A NO.115/A/10) 1999-2000 ASSESSEE REVENUE 8. CO 82/AHD/2010 (IN IT(SS)A NO.116/A/10) 2000-01 ASSESSEE REVENUE 9. CO 83/AHD/2010 (IN IT(SS)A NO.117/A/10) 2001-02 ASSESSEE REVENUE 10. CO 84/AHD/2010 (IN IT(SS)A NO.118/A/10) 2002-03 ASSESSEE REVENUE 11. CO 85/AHD/2010 (IN IT(SS)A NO.119/A/10) 2003-04 ASSESSEE REVENUE 12. CO 86/AHD/2010 (IN IT(SS)A NO.120/A/10) 2004-05 ASSESSEE REVENUE REVENUE BY : SHRI ABHISHEK KUMAR, SR.D.R. ASSESSEE BY : SHRI V.R.CHOKSI, A.R. '& ' ($ / / / / DATE OF HEARING : 27/12/2011 *+, ' ($ / DATE OF PRONOUNCEMENT : 27/12/2011 #- / O R D E R PER BENCH : SIX APPEALS HAVE BEEN FILED BY THE REVENUE AND SIX CROSS OBJECTIONS HAVE BEEN FILED BY THE RESPONDENT-ASSESS EE ARISING FROM A IT(SS)A NOS. 115 TO 120/AHD/2010 (BY REVENUE) & CO NOS.81 TO 86/AHD/2010(BY ASSESSEE) DCIT VS. SHRI JAYESH CHANDULAL PATEL ASST.YEARS - 1999-2000 TO 20 04-05 - 2 - COMMON ORDER OF LD.CIT(A)-GANDHINAGAR DATED 30/11/2 009 PASSED FOR AYS 1999-2000 TO 2004-05. 2. REVENUES GROUND READS AS UNDER:- 1. THE LD. CIT(A) WAS NOT JUSTIFIED IN DELETING THE PE NALTY OF RS.7,02,856/- FOR A.Y. 1999-2000, RS.3,53,028/- FOR A.Y. 2000-01, RS.5,74,236/- FOR A.Y. 2001-02, RS.7,16,346/- FOR A .Y. 2002-03, RS.5,85,906/- FOR A.Y. 2003-04 AND RS.6,13,800/- FO R A.Y. 2004-05. 271(1)(C) OF THE I.T. ACT. 2.1. A SEARCH WAS CARRIED OUT U/S.132(2) OF THE I.T .ACT, 1961 ON 20/08/2004 IN VIMAL GROUP OF CASES AND THEREUPON TH ESE ASSESSMENTS WERE MADE U/S.153A(B) OF THE I.T.ACT. DURING THE C OURSE OF SEARCH, A DATA FILE OF ACME COMPANY WAS FOUND AND SEIZED FR OM THE PREMISES OF THE ASSESSEE. THE ASSESSEE IS STATED TO BE M.D . OF VIMAL GROUP. THE ASSESSEE HAD ATTEMPTED TO DENY THAT THE TRANSACTION NOTED IN ACME DATA FILE BELONGED TO HIM. HOWEVER, ON THE OTHER HAND, REVENUE HAS ATTEMPTED TO ESTABLISH THE NEXUS BETWEEN THE DATA I N THE SAID ACME FILE WITH THE ASSESSEE. THE FIRST APPELLATE AUTHORITY H AS GIVEN SOME RELIEF PERTAINING TO THE PERCENTAGE OF THE NET PROFIT. AG AINST THAT RELIEF, REVENUE HAD GONE IN APPEAL AND RESPECTED CO-ORDINAT E BENCH A ITAT AHMEDABAD IN A CONSOLIDATED ORDER BEARING ITA NOS.2151 TO 2156/AHD/2007 FOR A.YS. 1999-2000 TO 2004-05 RESPEC TIVELY TITLED AS JAYESH CHANDUBHAI PATEL VS. DY.CIT AND ITA NOS.2494 TO 2499/AHD/2007 FOR A.YS. 1999-2000 TO 2004-05 RESPEC TIVELY TILED AS DY.CIT VS. JAYESH CHANDUBHAI PATEL, DATED 14/05/201 0 HAS RESTORED THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER WIT H THE FOLLOWING DIRECTIONS:- IT(SS)A NOS. 115 TO 120/AHD/2010 (BY REVENUE) & CO NOS.81 TO 86/AHD/2010(BY ASSESSEE) DCIT VS. SHRI JAYESH CHANDULAL PATEL ASST.YEARS - 1999-2000 TO 20 04-05 - 3 - 18. AS A RESULT, WE GIVE FOLLOWING DIRECTIONS TO THE AO- (1) HE WILL PROVIDE COPIES OF DATA OF ACME FILE TO THE ASSESSEE AND ASK HIM TO MATCH EACH ENTRY WITH THE REGULAR BO OKS OF ANY OF THE GROUP COMPANY; (2) IF THE ENTRY FOUND RECORDED IN ACME FILE TALLI ES WITH OR MATCHES WITH ANY ENTRY OF THE REGULAR BOOKS OF THE GROUP COMPANY THEN THAT ENTRY WILL BE EXCLUDED. OTHER ENTRIES IN ACME FILE NOT MATCHING WITH THE REGULAR BOOKS OF ANY OTHER GROUP COMPANY WILL BE COMPILED AND TOTALED. (3) A NET PROFIT RATE OF 5% WOULD BE APPLIED ON SU CH TOTAL OF THE ENTRIES ON THE RECEIPT SIDE FOUND NOT MATCHING WITH ANY REGULAR BOOKS OF ANY GROUP COMPANY. THIS AMOUNT WILL BE TR EATED AS UNDISCLOSED INCOME OF THE ASSESSEE. 19. AS A RESULT APPEAL FILED BY THE ASSESSEE AND T HAT OF REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. 3. WITH THIS BRIEF FACTUAL BACKGROUND, WE HAVE HEAR D BOTH THE SIDES. PARTIES APPEARING BEFORE US HAVE FAIRLY EXPRESSED T HAT SINCE THE ISSUE PERTAINING TO THE QUANTUM ADDITION HAD ALREADY BEEN RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER WITH CERTAIN DIRECTIO NS FOR DE NOVO ADJUDICATION, THEREFORE CONSEQUENCE THEREUPON THESE PENALTY PROCEEDING DESERVES TO BE RESTORED BACK TO THE FILE OF THE ASS ESSING OFFICER. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE, WE DEEM FIT TO RESTORE THE ISSUE OF LEVY OF PENALTY U/S.271(1)(C) OF THE I.T.A CT FOR AFRESH ADJUDICATION BY THE ASSESSING OFFICER IN THE LIGHT OF THE OUTCOME OF THE ASSESSMENT PROCEEDINGS. WE DIRECT ACCORDINGLY. TH E GROUNDS OF THE IT(SS)A NOS. 115 TO 120/AHD/2010 (BY REVENUE) & CO NOS.81 TO 86/AHD/2010(BY ASSESSEE) DCIT VS. SHRI JAYESH CHANDULAL PATEL ASST.YEARS - 1999-2000 TO 20 04-05 - 4 - REVENUE FOR ALL THE YEARS MAY THEREFORE BE TREATED AS ALLOWED BUT FOR STATISTICAL PURPOSES. 4. FROM THE SIDE OF THE CROSS OBJECTOR, LD.AR MR.V. R. CHOKSI FAIRLY EXPRESSED NOT TO PRESS THE CROSS OBJECTIONS SINCE T HE MATTER IS OTHERWISE GOING BACK FOR ADJUDICATION. IN THE LIGHT OF THE C ONCESSION EXPRESSED BY THE LD.AR MR.V.R.CHOKSI, THESE CROSS OBJECTIONS ARE HEREBY DISMISSED BEING WITHDRAWN. 5. IN THE RESULT ALL THE APPEALS OF THE REVENUE MAY BE TREATED AS ALLOWED ONLY FOR STATISTICAL PURPOSES AND THE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE DISMISSED. #- $# . ' / ! THIS ORDER IS PRONOUNCED IN OPEN COURT ON 27/ 12 /2011 SD/- SD/- ( .. !' ) ( ) #$ ( B.P. JAIN ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL ME MBER 0(..', .'../ T.C. NAIR, SR. PS #- ' 12 3#2, #- ' 12 3#2, #- ' 12 3#2, #- ' 12 3#2,/ COPY OF THE ORDER FORWARDED TO : 1. 45 / THE APPELLANT 2. 1645 / THE RESPONDENT. 3. 7 / CONCERNED CIT 4. 7() / THE CIT(A)-GANDHINAGAR 5. 2:/ 1' , , / DR, ITAT, AHMEDABAD 6. /; <& / GUARD FILE. #-' #-' #-' #-' / BY ORDER, 62 1 //TRUE COPY// = == =/ // / ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD