Ashokkumar N.Parekh, Surat V. The ACIT.,Circle-9, Surat

ITSSA 19/AHD/2009

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 8324 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 6 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 24-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 21-06-2011
• Assessment Year: misc
• Appeal Filed On: 18-02-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Assessee Lawyers: BHARAT POPAT
• Keywords: Block assessment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI D.C. AGRAWAL, ACCOUNTANT MEMBER DATE OF HEARING : 21/06/2011 DRAFTED ON: 2 1/06/2011 IT(SS)A NO.19/AHD/2009 BLOCK PERIOD : F. Y. 1989-90 TO 1998-99 AND UPTO 29-10-1999 ASHOKKUMAR N.PAREKH C/O.SHITAL FURNITURE NEAR OLD GITANJALI CINEMA VARACHHA ROAD, SURAT VS. THE ASSTT.CIT CIRCLE-9 SURAT PAN/GIR NO. : AKKPP 4957 H ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI BHARAT POPAT (A.R.) RESPONDENT BY: SHRI B.L. YADAV (D.R.) O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL AT THE BEHEST OF THE ASSESSEE W HICH HAS EMANATED FROM THE ORDER OF THE LEARNED CIT(APPEALS) -V, SURAT DATED 25/11/2008. THE BLOCK ASSESSMENT WAS FRAMED BY THE ACIT CIRCLE-9, SURAT U/S.158BD R.W.S. 158BC OF THE I.T.ACT VIDE HI S ORDER DATED 26/05/2006 FOR THE BLOCK PERIOD F.Y. 1989-90 TO 199 8-99 (UPTO 29/10/1999). THE FOLLOWING EFFECTIVE GROUND HAS BE EN RAISED BY THE ASSESSEE IN HIS APPEAL:- 1. THE LEARNED CIT(A)ERRED IN UPHOLDING THE VALID ITY OF THE PENALTY LEVIED OF RS.2,37,030.00 BY THE A.O. ON THE BASIS OF ASSESSMENT WHICH IS BAD IN LAW. IT(SS)A NO.19/A HD/2009 ASHOKUMAR N.PAREKH VS. ACIT BLOCK PERIOD -F. Y. 89-90 TO 98-99& UPTO 29.10.199 9 - 2 - 2. THE FACTS STATED, BRIEFLY, ARE THAT A SEARCH WAS CONDUCTED AT THE BUSINESS PREMISES OF M/S.OHM DEVELOPERS. DURING T HE SEARCH OPERATION SOME INCRIMINATING DOCUMENTS WERE FOUND AND SEIZED. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS FOUND BY T HE ASSESSING OFFICER THAT CERTAIN DOCUMENTS/PAPERS SEIZED DURING THE COU RSE OF SEARCH IN THE CASE OF OHM DEVELOPERS ARE RELATED TO ALLEGED ON-MO NEY PAYMENTS MADE BY VARIOUS PARTIES FOR THE ACQUISITION OF FLATS/SHO P. ASSESSEE HAD PURCHASED FLAT NO.B/102 FROM OHM ORGANIZERS FOR CON SIDERATION OF RS.8.70 LACS AND AN AMOUNT OF RS.3,43,750/- WAS PAI D BY CHEQUES AND BALANCE AMOUNT WAS ALLEGEDLY PAID IN CASH AS ON-MON EY. A NOTICE U/S.158BD RWS 158BC WAS ISSUED. IN RESPONSE TO THE SAID NOTICE, A RETURN OF INCOME DECLARING NIL INCOME WAS FILED BY THE ASSESSEE. THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A)-V, SURAT , WHO DISMISSED THE APPEAL OF THE ASSESSEE AND HELD THAT THE ASSESSMENT ORDER WAS FAIRLY DETAILED AND WELL-REASONED. 3. AT THE OUTSET, THE LEARNED AUTHORISED REPRESENT ATIVE OF THE ASSESSEE SHRI BHARAT POPAT HAS STATED THAT THE SAM E ISSUE HAD COME UP FOR CONSIDERATION BEFORE THE ITAT BENCH D AHMEDAB AD FOR BLOCK ASSESSMENT FROM 1990-91 TO 1999-2000 (UPTO 29-10-19 99) BY WAY OF IT(SS)A NO.168/AHD/2007, DATED 04/02/2011, WHEREIN THE ISSUE WAS SET ASIDE TO THE FILE OF ASSESSING OFFICER. 4. ON THE OTHER HAND, LEARNED DEPARTMENTAL REPRES ENTATIVE RELIED ON THE BLOCK ASSESSMENT ORDER AND THE ORDER OF THE CIT (A). IT(SS)A NO.19/A HD/2009 ASHOKUMAR N.PAREKH VS. ACIT BLOCK PERIOD -F. Y. 89-90 TO 98-99& UPTO 29.10.199 9 - 3 - 5. HAVING HEARD BOTH THE SIDES, IN THE INSTANT CASE , WE FIND THAT IN ASSESSEES OWN CASE FOR BLOCK ASSESSMENT UNDER CONS IDERATION THE IDENTICAL ISSUE HAD COME UP BEFORE THE ITAT BENCH D AHMEDABAD BY WAY OF IT(SS)A NO.168/AHD/2007(SUPRA), WHEREIN THE TRIBUNAL OBSERVED AS UNDER:- 8. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROU GH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT SEARCH ON M/S.OHM DEVELOPERS/ORGANIZER WAS CONDUCTED BY INCOME-TAX DE PARTMENT U/S.132 OF THE ACT ON 29-10-1999 AND NOTICE U/S.158 BD IN THE CASE OF ASSESSEE WAS ISSUED VIDE DATED 12-04-2004 WHICH WAS SERVED ON ASSESSEE ON 12-05-2004. WE FIND THAT NONE OF THE A UTHORITIES BELOW HAVE RECORDED THE FINDING WHETHER ANY SATISFA CTION QUA ASSESSEE WAS RECORDED WHILE COMPLETING THE BLOCK AS SESSMENT IN THE CASE OF M/S.OHM DEVELOPERS/ORGANIZERS. WE ARE NOT AWARE AND EVEN IT IS NOT BROUGHT ON RECORD EITHER BY ASSE SSING OFFICER OR BY CIT(A) AND EVEN NOW BY LD. COUNSEL FOR THE ASSES SEE OR BY LD. SR-DR, THE DATE OF COMPLETION OF BLOCK ASSESSMENT I N THE CASE OF M/S.OHM DEVELOPERS/ORGANISER AND WHETHER ANY SATISF ACTION QUA THE ASSESSEE WAS RECORDED IN THE CASE OF M/S.OHM DEVELOPERS/ORGANISER AND IN THE ABSENCE OF THESE FA CTS, WE ARE UNABLE TO DECIDE THE ISSUE OF JURISDICTION WHETHER THE ASSESSING OFFICER HAS RIGHTLY ASSUMED THE JURISDICTION FOR IS SUING NOTICE U/S.158BD OF THE ACT. HOWEVER, IN THIS CASE, IF TH ERE IS NO SATISFACTION RECORDED BY ASSESSING OFFICER OF M/S.O HM DEVELOPER/ORGANIZER ON OR BEFORE COMPLETION OF BLOC K ASSESSMENT, THE ASSESSING OFFICER OF THE ASSESSEE CANNOT ASSUME JURISDICTION U/S.158BD OF THE ACT. ACCORDINGLY, THESE FACTS NEE DS VERIFICATION AND ASSESSING OFFICER WILL DECIDE THE ISSUE IN THE LIGHT OF DECISION OF HON'BLE APEX COURT IN THE CASE OF MANISH MAHESHW ARI (SUPRA) AND OF SPECIAL BENCH OF DELHI TRIBUNAL IN THE CASE OF MANUJ AGARWAL (SUPRA). ACCORDINGLY, THIS ISSUE OF ASSESS EE IS SET ASIDE TO THE FILE OF ASSESSING OFFICER. AS THE MAIN ISSUE O F JURISDICTION IS SET IT(SS)A NO.19/A HD/2009 ASHOKUMAR N.PAREKH VS. ACIT BLOCK PERIOD -F. Y. 89-90 TO 98-99& UPTO 29.10.199 9 - 4 - ASIDE TO THE FILE OF ASSESSING OFFICER, THE ISSUE O N MERITS HAS ALSO BEEN SENT BACK TO THE FILE OF ASSESSING OFFICER FOR ADJUDICATION. 6. WE HAVE PERUSED THE ABOVE ORDER, THERE IS NOTHI NG MUCH LEFT FOR OUR DECISION BECAUSE THE QUANTUM ADDITION HAS ALREA DY BEEN RESTORED BACK TO THE STAGE OF THE ASSESSING OFFICER BY THE R ESPECTED CO-ORDINATE BENCH VIDE ORDER REPRODUCED (SUPRA). ACCORDINGLY, THE QUESTION OF LEVY OF PENALTY BEING DEPENDENT ON THE OUTCOME OF THE QU ANTUM ADDITION HAS TO BE DECIDED THEREAFTER. RELIANCE CAN BE PLACED O N THE DECISION OF HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VS. R. HARI KRISHNA NADAR REPORTED AT [1995] 216 ITR 65 (MAD.) AND DECISION O F HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF RADHEY SHYAM JAISWAL VS.I NCOME TAX APPELLATE TRIBUNAL & ANR. REPORTED AT ]1992] 198 IT R 623 (ALL.). AT PRESENT, THIS PENALTY DO NOT SURVIVE, HOWEVER, THE ASSESSING OFFICER HAS TO RE-ADJUDICATE DE NOVO AS PER LAW CONSEQUENCE UPON THE OUTCOME OF THE QUANTUM ADDITION. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 24 TH JUNE, 2011. SD/- SD/- ( D.C. AGRAWAL) ( MUKUL KR. SH RAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBE R AHMEDABAD; DATED 24/ 6 /2011 T.C. NAIR, SR. PS IT(SS)A NO.19/A HD/2009 ASHOKUMAR N.PAREKH VS. ACIT BLOCK PERIOD -F. Y. 89-90 TO 98-99& UPTO 29.10.199 9 - 5 - COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE DEPARTMENT. 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-V, SURAT 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY/ / (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD 1. DATE OF DICTATION..21/06/2011 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 21/06/2011 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S 24/6/11 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 24/6/11 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER