Shri Sanjay Jayendra Dave, Ahmedabad V. The Income tax Officer,Ward-10(3), Ahmedabad

ITSSA 271/AHD/2012

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 0969 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 07-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 06-08-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 25-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P M MEHTA WITH SHRI G M THAKOR
• Section: 132

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER ./ IT(SS)A NO.271 AND 272/AHD/2012 / ASSTT. YEAR: 2004-2005 AND 2005-06 SANJAY JAYENDRA DAVE 12/141, POOJA APARTMENT NR. HIMATLAL PARK 140, 1 ST FLOOR, NARAYAN CHAMBER ASHRAM ROAD, AHMEDABAD. PAN : AAPPD 7758 K VS ITO, WARD - 10(3) AHMEDABAD. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE BY : SHRI P.M. MEHTA WITH SHRI G.M. THAKOR REVENUE BY : SHRI PRAVEEN KUMAR, SR.DR / DATE OF HEARING : 06/08/2015 / DATE OF PRONOUNCEMENT: 07/08/2015 $%/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE SE PARATE ORDERS OF EVEN DATED I.E. 20.3.2012 PASSED BY THE LD.CIT(A)-X VI, AHMEDABAD FOR ASSTT.YEAR 2004-05 AND 2005-06. 2. THE GRIEVANCE OF THE ASSESSEE IS THAT THE LD.CIT (A) HAS ERRED IN CONFIRMING THE PENALTY OF RS.83,485/- AND RS.1,86,7 01/- FOR THE ASSTT.YEAR 2004-05 AND 2005-06 RESPECTIVELY UNDER S ECTION 271(1)(C) OF THE ACT. IT(SS)A NO.271/AHD/2012 2 3. BRIEF FACTS OF THE CASE ARE THAT A SEARCH AND SE IZURE OPERATIONS WAS CARRIED OUT UNDER SECTION 132 OF THE INCOME TAX AT THE PREMISES OF M/S.PRAVIN RATILAL, SHARE DALAL . DURING THE COURSE OF SEARCH, INCRIMINATING MATERIALS INCLUDING COMPUTER DATA WER E FOUND AND SEIZED. A NOTICE UNDER SECTION 153C OF THE INCOME TAX ACT W AS ISSUED TO THE ASSESSEE. HOWEVER, THE NOTICED REMAINED UNCOMPLIED WITH AND THE AO HAS ULTIMATELY PASSED ASSESSMENT IN BOTH THE YEARS ON 22.2.2007 U/S. 153C R.W.S. 144. THESE ARE EX PARTE ORDERS. THE LD.AO HAS MADE ADDITION OF RS.3,64,950/- AND RS.6,96,800/- IN THE ASSTT.YEARS 2004-05 AND 2005-06 RESPECTIVELY. THIS ADDITIONS WERE MADE ON THE GROUND THAT CASH DEPOSITS WERE FOUND IN THE SAVING BANK ACCOUNT OF THE ASSESSEE BEARING NO.2455 IN UCO BANK. THE ASSESSEE FAILED T O EXPLAIN THE SOURCE OF DEPOSITS. THE LD.AO HAS ISSUED NOTICE UND ER SECTION 274 R.W.S. 271(1)(C) OF THE ACT FOR CONCEALING THE PARTICULARS OF INCOME, AND ULTIMATELY, HE IMPOSED PENALTY OF RS.83,485/- AND R S.1,86,701/- IN THE ASSTT.YEARS 2004-05 AND 2005-06. 4. THE APPEALS TO THE CIT(A) DID NOT GIVE ANY RELIE F TO THE ASSESSEE. 5. THE LD.COUNSEL FOR THE ASSESSEE, AT THE VERY OUT SET, SUBMITTED THAT THE QUANTUM ADDITIONS WERE CHALLENGED BY THE A SSESSEE BEFORE THE TRIBUNAL IN IT(SS)A.NO.554 TO 557/AHD/2010. THE TR IBUNAL HAS SET ASIDE THE ORDER OF THE LD.CIT(A). THE ISSUES HAVE BEEN REMITTED BACK TO THE FILE OF THE LD.CIT(A) FOR RE-ADJUDICATION. COP Y OF THE TRIBUNALS ORDER DATED 14.2.2014 HAS BEEN PLACED ON RECORD. 6. THE LD.DR, ON THE OTHER HAND, RELIED UPON THE OR DER OF THE REVENUE AUTHORITIES BELOW. 7. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GO NE THOUGH THE RECORD CAREFULLY. WE FIND THAT IN THE QUANTUM APPE AL VALIDITY OF NOTICE ISSUED U/S.153 WAS CHALLENGED. SINCE THE QUANTUM A DDITION HAS NOT ATTAINED FINALITY, AND THE TRIBUNAL HAS SET ASIDE T HE ISSUES TO THE FILE OF IT(SS)A NO.271/AHD/2012 3 THE CIT(A), THEREFORE, WE ALSO DEEM IT APPROPRIATE IN THE INTEREST OF JUSTICE THAT ISSUE REGARDING THE LEVY OF PENALTY SH OULD ALSO BE RE- ADJUDICATED AFTER THE DECISION ON THE QUANTUM ADDIT IONS. THEREFORE, WE SET ASIDE THE IMPUGNED ORDERS OF THE LD.CIT(A) AND RESTORE THE ISSUE OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT TO THE F ILE OF THE CIT(A) FOR RE-ADJUDICATION AFTER THE DECISION ON QUANTUM ADDIT IONS. 8. IN THE RESULT OF THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 7 TH AUGUST, 2015 AT AHMEDABAD. SD/- SD/- (ANIL CHATURVEDI) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER