Sonal Nimishkumar Patel, Ahmedabad V. The Dy.CIT.,Cent.Circle-2(2), Ahmedabad

ITSSA 42/AHD/2008

• Counselvise Citation: [2010] 124 COUNSELVISE.COM (IT) 9240 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 3 month(s) 14 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 02-07-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 30-06-2010
• Assessment Year: misc
• Appeal Filed On: 19-03-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K M MAHESH
• Assessee Lawyers: A C SHAH
• Keywords: Unexplained investment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH AHMEDABAD (BEFORE S/SHRI BHAVNESH SAINI, JM AND D. C. AGRAWAL , AM) IT (SS) A NO.42/AHD/2008 BLOCK PERIOD: 01-04-1989 TO 24-02-1999 SONAL NINISHKUMAR PATEL, 41, ASHWAMEGH-III, 132 F. RING ROAD, AHMEDABAD 380 054 PA/GIR NO. 31-109-PQ-9227 VS THE DCIT, CENTRAL CIRCLE-2(2), AHMEDABAD (APPELLANT) (RESPONDENT) APPELLANT BY SHRI A. C. SHAH, AR RESPONDENT BY SHRI K. M. MAHESH, DR O R D E R PER BHAVNESH SAINI: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER OF THE LEARNED CIT(A)-III, AHMEDABAD DATED 28-01-2008 CHALLENGING THE LEVY OF PENALTY U/S 158BFA (2) OF T HE IT ACT. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSE SSEE FILED BLOCK RETURN DECLARING UNDISCLOSED INCOME OF RS.4,35,901/- WHICH WAS ASSESSED U/S 158BC OF THE IT ACT AT THE INCOME OF RS.9,71,850/- VIDE ORDER DATED 29-02-2001. THE AO INITIATED PROCEEDINGS U/S 158 BF A (2) OF THE IT ACT IN RESPECT OF UNEXPLAINED INVESTMENTS IN JEWELLERY (A DIAMOND RING) VALUED AT RS.4,66,650/- AND VIDE SEPARATE ORDER IMP OSED PENALTY. THE AO OBSERVED THAT THE EXPLANATION OF THE ASSESSEE TH AT THE DIAMOND RING BELONGED TO HER HUSBAND NIMISHKUMAR PATEL WAS NOT E STABLISHED. DIFFERENT EXPLANATIONS OF THE ASSESSEE WERE FOUND T O BE INCORRECT. IT WAS ALSO POINTED OUT THAT THE EXPLANATION OF THE ASSESS EE WAS NOT ACCEPTED BY THE TRIBUNAL VIDE ORDER DATED 12-05-2006 IN IT (SS) A NO.21/AHD/2002. IT WAS SUBMITTED BEFORE THE LEARNED CIT(A) THAT THE DIAMOND RING BELONGED TO HER HUSBAND WHICH WAS REFLECTED IN HER RETURN OF INCOME AND BALANCE SHEET ALSO. THE ASSESSEE PREFERRED MISC. AP PLICATION AGAINST THE IT(SS)A NO.42/AHD/2008 SONAL NIMISHKUMAR PATEL VS DCIT, CC-2(2),AHMEDABAD 2 ORDER OF THE TRIBUNAL WHICH IS PENDING. THE LEARNED CIT(A) HOWEVER, DID NOT ACCEPT THE EXPLANATION OF THE ASSESSEE AND DISM ISSED THE APPEAL OF THE ASSESSEE. 3. THE LEARNED COUNSEL FOR THE ASSESSEE AT THE OUTS ET SUBMITTED THAT ULTIMATELY THE APPEAL OF THE ASSESSEE IS DECIDED IN IT(SS) A NO.21/AHD/2002 VIDE ORDER DATED 04-09-2009 BY THE T RIBUNAL AND IT WAS HELD THAT THE SAME DIAMOND RING BELONGED TO ASS ESSEES HUSBAND NIMISHKUMAR PATEL AND NOT TO THE ASSESSEE. ADDITION OF RS.4,66,650/- WAS ACCORDINGLY DELETED. COPY OF THE ORDER IS FILED ON RECORD. THE LEARNED DR DID NOT DISPUTE THE ORDER OF THE TRIBUNAL DATED 04-09-2009 DELETING THE ENTIRE ADDITION ON THE BASIS OF WHICH ABOVE PEN ALTY WAS IMPOSED. 4. ON CONSIDERATION OF THE ABOVE FACTS, WE ARE OF THE VIEW THAT PENALTY IS NOT LEVIABLE IN THE MATTER. THE TRIBUNAL IN ITS ORDER DATED 04-09-2009 (SUPRA) HAS DELETED THE ENTIRE ADDITION ON THE BASIS OF WHICH PENALTY WAS IMPOSED HOLDING THAT THE DIAMOND RING B ELONGED TO THE ASSESSEES HUSBAND NIMISHKUMAR PATEL. SINCE THE SUB JECT MATTER OF PENALTY HAS BEEN CONSIDERED BY THE TRIBUNAL ON QUAN TUM AND ADDITION HAS BEEN DELETED, THEREFORE, NO PENALTY IS LEVIABLE AGAINST THE ASSESSEE. WE ACCORDINGLY, SET ASIDE THE ORDERS OF THE AUTHORI TIES BELOW AND CANCEL THE PENALTY. 5. AS A RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED. ORDER PRONOUNCED IN THE OPEN COURT ON 2-07-2010 SD/- SD/- (D. C. AGRAWAL) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 2-07-2010 LAKSHMIKANT/- IT(SS)A NO.42/AHD/2008 SONAL NIMISHKUMAR PATEL VS DCIT, CC-2(2),AHMEDABAD 3 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER DY. REGISTRAR, ITAT, AHMEDABAD