M. Rameshkumar and Co., Ahmedabad V. The ACIT., Cent.Circle-1(4), Ahmedabad

ITSSA 132/AHD/2007

• Counselvise Citation: [2010] 124 COUNSELVISE.COM (IT) 9512 (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: Assessee
• Order Result: Allowed
• 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: R K JINDAL
• Keywords: Initiation of penalty proceedings
• Section: 143(3)

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.132/AHD/2007 BLOCK PERIOD ENDING ON 1/4/95 TO 17/7/01 RAMESHKUMAR AND CO. 1237, LUHAR NI POL, MADAN GOPAL, HAVELI ROAD, MANEKSHOWK, AHMEDABAD-1 VS. ACIT, CENTRAL CIRCLE 1(4), AHMEDABAD. PAN/GIR NO. : AACFM 5175 A (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI R.K.JINDAL A.R. RESPONDENT BY: SHRI C.K. MISHRA D.R. O R D E R PER N.S.SAINI , ACCOUNTANT MEMBER :- THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST T HE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV, AH MEDABAD DATED 21.03.2007. 2. THE GROUNDS OF THE APPEAL OF THE ASSESSEE READS AS UNDER:- 1 IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE, LD. CIT(APPEALS) HAS GROSSLY ERRE D IN CONFIRMING THE BLOCK ASSTT. ORDER. THE IMPUGNED ORD ER IS ILLEGAL AND REQUIRED TO BE QUASHED. 2. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE, LD. CIT(APPEALS) HAS GROSSLY ERRE D IN CONFIRMING AO'S ACTION OF TREATING OTHERS OFFICIAL MONEY IT(SS)A NO.132/AHD/2 007 - 2 - RS.4,78,135, WHICH WERE IN THREE PACKETS AS UNACCOUNTED/UNEXPLAINED CASH OF COURIER. 3. THE LD. CIT(APPEALS) HAS GROSSLY ERRED IN CONFI RMING AO'S ACTION IN CHARGING THE SURCHARGE RS.5738/- @ 2 % ON THE TAX WITHOUT ANY AUTHORITY OF LAW. 4 THE CIT (A) HAS GROSSLY ERRED IN CONFIRMING THE A O'S ACTION IN WRONGLY INITIATING PENALTY PROCEEDING U/S.158BFA(2) OF THE ACT. IN VIEW OF THE FACTS OF T HE CASE, THE INITIATION OF IMPUGNED PENALTY PROCEEDINGS REQU IRES TO BE QUASHED/VACATED. 3. THE BRIEF FACTS ARE THAT THE ASSESSEE BEING AGGR IEVED AGAINST THE ORDER OF THE AO PASSED ON 28.04.2006 UNDER SECTION 158BD READ WITH SECTION 143(3) OF THE INCOME TAX ACT, 1961 FILED AP PEAL BEFORE THE CIT(A) CHALLENGING THE LEGALITY OF THE ORDER PASSED AND ALSO CHALLENGED THE ADDITION OF RS.4,78,135/- ON ACCOUNT OF UNEXPLAINED CASH AND CHARGING OF SURCHARGE OF RS.5738/- @ 2% ON THE TAX. THE ASSESSEE ALSO CHALLENGED THE INITIATION OF PENALTY PROCEEDINGS AGAINST THE ASSESSEE UNDER SECTION 158BFA(2) OF THE ACT. 4. THE LD. CIT(A) FIXED THE APPEAL FOR HEARING ON 2 9.12.2006, 17.01.2007, 01.02.2007, 22.02.2007, 14.03.2007AND F INALLY ON 21.03.2007. AS THE ASSESSEE DID NOT APPEAR ON THE ABOVE DATES OF HEARING, THE LD. CIT(A) SUMMARILY DISMISSED THE APP EAL OF THE ASSESSEE FOR WANT OF PROSECUTION. 5. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE FILED THE CONSOLIDATED ORDER OF THE TRIBUNAL DATED 3.07.2 009 PASSED IN THE CASE OF M/S. RAJESH KUMAR RAMESH & CO., VS. DCIT IN IT(SS)A IT(SS)A NO.132/AHD/2 007 - 3 - NOS.165/AHD/2006 AND 196/AHD/2006 FOR THE BLOCK PE RIOD FROM 1.04.1995 TO 17.07.2001, WHEREBY ASSESSMENT FRAMED UNDER SECTION 158BD WAS QUASHED BY THE TRIBUNAL ON THE GROUND THA T 158BD PROCEEDINGS IN THE CASE OF THE ASSESSEE WAS BARRED BY LIMITATION. HE SUBMITTED THAT THE FACTS IN THE CASE OF THE ASSESSE E ARE IDENTICAL AND THAT ASSESSMENT UNDER SECTION 158BD WAS ALSO FRAMED IN THE CASE OF THE ASSESSEE ON ACCOUNT OF SEARCH ACTION UNDER SECT ION 37(3) OF FEMA ACT, 1999 READ WITH SECTION 132(1) OF THE INCOME T AX ACT, 1961 ON THE LUGGAGE VAN OF ASHRAM EXPRESS ON 9.07.2001 WHIC H WAS TAKEN ON LEASE BY THE JAGDISH GUJJAR AND PRABHU G. JADHAV. HE SUBMITTED THAT FOLLOWING THE ORDER OF THE TRIBUNAL IN THE CASE OF M/S. RAJESH KUMAR RAMESH & CO.,(SUPRA), THE ASSESSMENT ORDER FRAMED U NDER SECTION 158BD IN THE CASE OF THE ASSESSEE WAS ALSO REQUIRED TO BE QUASHED. 6. AFTER HEARING THE RIVAL SUBMISSIONS AND PERUSING THE ORDERS OF THE LOWER AUTHORITIES, WE FIND THAT THE APPEAL OF T HE ASSESSEE CAME TO BE DISMISSED BY THE CIT(A) AS THE ASSESSEE FAILED T O APPEAR BEFORE HIM ON THE VARIOUS DATES AS STATED ABOVE FIXED FOR HEARING OF THE APPEAL. THE LD. A.R. HAS UNDERTAKEN TO APPEAR BEFO RE THE LD. CIT(A) IF THE MATTER IS RESTORED BACK TO THE FILE OF THE C IT(A) FOR FRESH ADJUDICATION OF HIS APPEAL. IN THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT THE LD. CI T(A) WAS NOT JUSTIFIED IN DISMISSING THE APPEAL ON THE GROUND TH AT THE ASSESSEE FAILED TO APPEAR BEFORE HIM ON THE DATE OF HEARINGS AND SHOULD HAVE DECIDED THE APPEAL ON MERITS SO THAT THE ASSESSEE C OULD MEET ITS CASE BEFORE THE HIGHER FORUM. THEREFORE, WE SET ASIDE TH E ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE FOR ADJUDICATION OF THE IT(SS)A NO.132/AHD/2 007 - 4 - APPEAL OF THE ASSESSEE ON MERITS AFTER ALLOWING REA SONABLE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED FOR STATICALLY PURPOSES. 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 ACCOUNT ANT 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