The DCIT, Central Circle-1(4), Ahmedabad V. Rajesh Kumar Ramesh Kumar & Co., Ahmedabad

ITSSA 130/AHD/2007

• Counselvise Citation: [2010] 124 COUNSELVISE.COM (IT) 9513 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 7 month(s) 14 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 17-03-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 17-03-2010
• Assessment Year: misc
• Appeal Filed On: 03-08-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C K MISHRA
• Assessee Lawyers: P M MEHTA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D BEFORE SHRI T.K.SHARMA, JUDICIAL MEMBER AND SHRI N.S. SAINI, ACCOUNTANT MEMBER DATE OF HEARING: 17.03.10 DRAFTED ON: 17.03.10 IT(SS)A NO.130/AHD/2007 BLOCK PERIOD ENDING ON 17.07.2001 DCIT, CENTRAL CIRCLE,-1(4), ROOM NO.303, AAYKAR BHAVAN, AHMEDABAD VS. RAJESH KUMAR RAMESH KUMAR & CO. 20, ZAVERI WAD, RATANPOLE, AHMEDABAD. PAN/GIR NO. : AAFFR 4620 Q (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI C.K. MISHRA D.R. RESPONDENT BY: SHRI P.M.MEHTA A.R. O R D E R PER N.S.SAINI , ACCOUNTANT MEMBER :- THIS IS AN APPEAL FILED BY THE REVENUE AGAINST TH E ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV, AHMEDABAD DATED 09.03.2007. 2. THE GROUNDS OF THE APPEAL OF THE REVENUE READS A S UNDER:- 1 THE CIT (A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY AT RS.5,57,176/- IMPOSED U/S.158BFA(2) WITH OUT CONSIDERING THE FACT THAT UNDISCLOSED INCOME HAD BEEN CONFIR MED ON THE BASIS OF UNEXPLAINED JEWELLERY AND CASH. 2 THE CIT (A) HAS ERRED IN LAW AND ON FACTS IN HOLDIN G THAT THE MENS-REA WAS NOT PROVED BY THE A.O., WITHOUT CONSID ERING THE CORRECT LEGAL POSITION THAT THE REQUIREMENT OF MENS-REA TO BE PROVED NO LONGER EXISTS. 3 THE CIT (A) HAS ERRED IN LAW AND ON FACTS IN IGNO RING THE CORRECT POSITION OF LAW THAT PENALTY U/S.158BFA(2) IS REQUIRED TO BE IMPOSED ON THE BASIS OF UNDISCLOSED INCOME DETERMIN ED. IT(SS)A NO.1 30/AHD/2007 - 2 - 4 ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE CIT (A) OUGHT TO HAVE UPHELD THE ORDER OF THE A.O . 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RE CORD. THE LD. A.R. OF THE ASSESSEE FILED BEFORE US A COPY OF THE ORDER OF THE TRIBUNAL PASSED IN THE CASE OF THE ASSESSEE IN IT (SS)ANO.165/AHD/2006 AND IT(S S)ANO.196/AHD/2006 DATED 03/7/2009 WHEREBY ASSESSMENT FRAMED UNDER SEC TION 158BD IN RELATION TO WHICH IMPUGNED PENALTY WAS LEVIED WAS Q UASHED BY THE TRIBUNAL ON THE GROUND THAT 158BD PROCEEDINGS IN THE CASE OF THE ASSESSEE WAS BARRED BY LIMITATION. AS THE RELEVANT ORDER OF ASSESSMENT IS QUASHED PENALTY ORDER CANNOT SURVIVE. THE LD. D.R. COULD NOT DISPUTE THE PROPOSITION. WE THEREFORE FIND NO MERIT IN THE APPEAL OF THE REVENUE WHICH IS HEREBY DISMISSED. 4. IN THE RESULT, THE APPEAL OF THE REVENUE IS DI SMISSED. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE H EARING IN THE PRESENCE OF THE PARTIES ON 17.03.2010. SD/- SD/- ( T.K. SHARMA ) ( N.S. SAINI ) JUDICIAL MEMBER A CCOUNTANT MEMBER AHMEDABAD; DATED17/03/2009 PREPARED AND COMPARED BY : PARAS # 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