Shri Vijubhai D.Zala, Bhavnagar V. The ACIT.,Circle-2, Bhavnagar

ITSSA 426/AHD/2011

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 2849 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 year(s) 4 month(s) 10 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 01-11-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 12-07-2017
• Assessment Year: misc
• Appeal Filed On: 21-06-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: MEHUL K PATEL
• Keywords: Unexplained investment; Loose papers; Opportunity of being heard; Reasonable cause; Difference of opinion; Block assessment
• Section: 273B; 131; 15

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMAJIT SINGH, ACCOUNTANT MEMBER ./ IT(SS)A NO. 426/AHD/2011 AND ./ IT(SS)A NO. 265/AHD/2014 BLOCK PERIOD : 01-4-1990 TO 24-1-2001 VAJUBHAI D. ZALA 28, SHAKTI NIVAS SHREE RAM CO-OP. HSG. SOCIETY SARDAR NAGAR, BHAVNAGAR. PAN : AABPZ 1160 D. VS ACIT, CIR.2 BHAVNAGAR. !' / (APPELLANT) #$ !' / (RESPONDENT) ASSESSEE BY : SHRI MEHUL K. PATEL, AR REVENUE BY : MS.SMITI SAMANT, SR.DR / DATE OF HEARING : 26/10/2018 /DATE OF PRONOUNCEMENT : 01 /11/2018 O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER : PRESENT TWO APPEALS ARE DIRECTED AT THE INSTANCE OF THE ASSESSEE AGAINS T ORDERS OF THE LD.CIT(A) XX, AHMEDABAD DATED 17.3.2011 AND 3.3.20 14 PASSED FOR THE BLOCK PERIOD STARTING FROM 1.4.1990 AND ENDING ON 2 4.1.2011. 2. IT(SS)A NO.426/AHD/2011 ARISES FROM BLOCK ASSESS MENT ORDER UNDER SECTIONS 158BC, 254 AND 144 WHEREAS IT(SS)A.N O.265/AHD/2014 ARISES FROM A PENALTY ORDER PASSED UNDER SECTION 15 8BFA(2) OF THE IT(SS)A NO.265/AHD/2014 AND 426/AHD/2011 - 2 - INCOME TAX ACT, 1961. FIRST WE TAKE QUANTUM APPEAL I.E. IT(SS)A.NO.426/AHD/2011. 3. GROUNDS OF APPEAL TAKEN BY THE ASSESSEE ARE NOT IN CONSONANCE WITH RULE 8D OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963, RATHER THEY ARE DESCRIPTIVE AND ARGUMENTATIVE IN NATURE. THIS IS A SECOND ROUND OF LITIGATION UPTO THE LEVEL OF TRIBUNAL. IT EMERGES OUT FROM THE GROUNDS OF APPEAL THAT THE ASSESSEE IS IMPUGNING CO NFIRMATION OF THREE ADDITIONS VIZ. (A) ADDITION OF RS.3,27,949/- ADDED ON ACCOUNT OF UNEXPLAINED INTEREST INCOME; (B) RS.5,97,370/- ADDE D ON ACCOUNT OF UNEXPLAINED FUND AVAILABLE WITH THE ASSESSEE WHICH WERE GIVEN ON LOAN; AND (C) ADDITION OF RS.90,000/- ON ACCOUNT OF UNEXP LAINED INCOME EARNED BY THE ASSESSEE IN THE BLOCK PERIOD. 4. BRIEF FACTS OF THE CASE ARE THAT SEARCH HAS BEEN CARRIED OUT AT THE RESIDENTIAL PREMISES OF THE ASSESSEE ON 24.1.2001. DURING THE COURSE OF SEARCH INCRIMINATING MATERIAL WERE FOUND AND SEIZED . A NOTICE UNDER SECTION 158BC WAS ISSUED ON 28.3.2001 WHICH WAS DUL Y SERVED UPON THE ASSESSEE. THE ASSESSEE HAS FILED RETURN FOR THE BL OCK PERIOD ON 31.5.2008 DECLARING UNDISCLOSED INCOME AT RS.5,35,540/-. AN ASSESSMENT ORDER UNDER SECTION 158BC WAS PASSED ON 31.1.2003 WHEREBY TOTAL INCOME OF THE ASSESSEE FOR THE BLOCK PERIOD WAS DETERMINED AT RS.23,34,780/- AS AGAINST UNDISCLOSED INCOME OF RS.5,35,540/-. THE L D.AO HAS MADE VARIOUS ADDITIONS WHICH WERE TRAVELLED UPTO THE TRI BUNAL. IN THE PRESENT, WE ARE CONCERNED WITH THREE ADDITIONS. 5. IT EMERGES OUT FROM THE RECORD THAT DURING THE C OURSE OF SEARCH, AN LIC DIARY WAS FOUND WHICH HAS BEEN ANALYZED BY THE AO FOR MAKING ADDITIONS. FOR THE FACILITY OF COMPLETENESS OF FAC TS, WE TAKE NOTE OF THE IT(SS)A NO.265/AHD/2014 AND 426/AHD/2011 - 3 - FINDING OF THE AO RECORDED ON THIS ISSUE IN THE ORI GINAL ASSESSMENT ORDER, WHICH READ AS UNDER: X. ON PAGE 38 THERE IS AN ENTRY DATED 1.2.1998 IN THE NAME OF RAZAKBHAI NAVAPARA FOR RS.6,00,000/-. JUST BELOW OF THIS ENTRY THERE IS AN ENTRY OF RS.5,00,000 SHOWN AS RECEIPT ON 25.9.98 AND BALANCE IS SHOWN AT RS.1,00,000/-. ON THE RIGHT HAND SIDE OF THIS P AGE THERE ARE ENTRIES OF RS.18,000 FOR FOUR MONTHS UPTO 05.09.98 AND THE REM AINING ENTRIES ARE FOR RS.3,000/- EACH FROM 05.10.98 TO 03.04.99. THE ASSESSEE ASKED TO EXPLAIN THIS TRY. THE ASSESSEE SUBMITTED THAT THIS ENTRY IS PART OF VC ACCOUNT OF SHRI RAZAK AND IN SUPPORT OF THIS THE AS SESSEE HAS FILED THREE AFFIDAVITS. ONE OF THE PERSONS WHO HAS EXECUTED TH E AFFIDAVIT IS SHRI HUSSAIN ESMAIL SOLANKI, WHO IS STATED TO BE THE BRO THER OF SHRI RAZAK. I AM UNABLE TO ACCEPT THE CONTENTION OF THE ASSESSEE FOR THE REASON THAT THE ENTRY IS DTD.01.02.98. TH4E ASSESSEE HAS OBTAINED A LOAN FROM NAGARIK SAHAKARI BANK AND GIVEN TO HIM BY CHEQUE ON 24.08.9 8. THE SAID PERSON MIGHT HAVE RETURNED THE AMOUNT OF RS.5,00,000 TOWAR DS THE EARLIER LOAN OF RS.6,00,000/-. THE INTEREST IS CHARGED ON 6,00, 000/- @ 3% AND THE INTEREST ENTRY OF RS.18,000/- IS MATCHING. LIKEWIS E AFTER THE RECEIPT OF RS,5,00,000 THE INTEREST HAS REDUCED TO RS.3,000/- PER MONTH FROM 05.10.98. I THEREFORE HOLD THAT THE ASSESSEE HAD A DVANCED RS,6,00,000/- ON 01.02.98 FROM UNDISCLOSED SOURCE OUT OF WHICH RS .5,00,000 HAS BEEN RECEIVED ON 25.9.98. A BALANCE OF RS.1,00,000 IS Y ET TO BE RECOVERED FROM SHRI RAZSAK. THE TOTAL INTEREST ON THIS PAGE COMES TO RS.90,000/-. I THEREFORE, MAKE AN ADDITION OF RS.90,000/- BEING IN TEREST FOR THE A.Y.99- 2000 AND RS.6,00,000/- AS UNACCOUNTED LENDING OF TH E ASSESSEE FOR THE A.Y.98-99. XXX XXXXX XXXX 16. AS STATED EARLIER, THERE ARE ACCOUNTS IN THE NA ME OF ABDUL RAZAK SOLANKI UNDER THE HEAD OF V.C. IN THE VARIOUS ANNEX URES SEIZED DURING THE COURSE OF SEARCH AT ASSESSEE'S PREMISES. IT WAS EXPLAINED THAT IN V.C. VARIOUS PERSONS CONTRIBUTE MONTHLY A FIXED, AMOUNT AND THE TOTAL SUM SO RECEIVED FROM SUCH MEMBERS IS AUCTIONED AND THE LOW EST BIDDER WILL BE GIVEN THE AMOUNT. THE DIFFERENCE BETWEEN THE ORIGIN AL AMOUNT AND THE BID AMOUNT WILL BE DISTRIBUTED AMONGST THE MEMBERS IN T HE MONTHLY INSTALMENT TO BE COLLECTED. SHRT ABDUL RAZAK WAS TA KING THE RESPONSIBILITY AND DOING THE BUSINESS OF V.C. AS BO TH WERE CLOSE FRIENDS. THE ASSESSEE USED TO MAINTAIN THE ACCOUNT IN HIS DI ARY. IN THE INITIAL STAGE IT(SS)A NO.265/AHD/2014 AND 426/AHD/2011 - 4 - OF HEARING IT WAS SUBMITTED BY THE ASSESSEE THAT TH E ABOVE PERSON IS ABSCONDING DUO TO HIS INABILITY TO REPAY THE V.C. A MOUNT TO VARIOUS PERSONS. HE ALSO FILED THREE AFFIDAVITS IN THIS CO NNECTION. HOWEVER, ON 30TH JANUARY. 2003 IN THE AFTERNOON SESSION OF THE H EARING THE ASSESSEE FILED AN AFFIDAVIT OF ABDUL RAZAK SOLANKI STATING T HAT THE VARIOUS ENTRIES AS STATED IN THE AFFIDAVIT PERTAIN TO HIM AND THE A SSESSEE HAS NO CONNECTION WITH THE SALE. SINCE, THE ABOVE SAID P ERSON COULD NOT BE CROSS EXAMINED BY THE UNDERSIGNED, THE AFFIDAVIT CANNOT B E ACCEPTED. 17. IT IS NO DOUBT TRUE THAT ALL THE ENTRIES UNDER THE HEAD V.C. DOES NOT AMOUNT TO INCOME. HOWEVER INTEREST IS BEING CHARGED FROM THE DEFAULTERS. THE TOTAL AMOUNT OF V.C. AS PER CASH BOOK PREPARED COMES TO RS. 17,00,000/-. IT IS SEEN THAT THE DEFAULTING MEMBERS WILL HAVE TO PAY INTEREST. AS PER THE CASH BOOK THE INTEREST UNDER T HIS HEAD COMES TO RS.3,44,950/-. THE ASSESSEE IS LENDING MONEY. I AM OF THE OPINION THAT THE ASSESSEE HAS BEEN FUNDING IN RESPECT OF THE DEFAULT ERS OF V.C. ACCORDINGLY; AN INTEREST OF RS.3,44,950/- AS EVIDEN CED BY THE CASH BOOK PREPARED FROM THE VARIOUS ANNEXURES IS ADDED AS INC OME OF THE ASSESSEE SUBSTANTIALLY FOR THE BLOCK PERIOD. (ADDITION OF RS.3,44,950 BLOCK PERIOD) 6. THE LD.CIT(A) HAS DELETED THESE ADDITIONS. HOWE VER, ON APPEAL OF THE REVENUE, TRIBUNAL RECORDED A FINDING THAT LD.CI T(A) HAS COMMITTED AN ERROR IN DELETING THESE ADDITIONS. THE TRIBUNAL SET ASIDE THESE ISSUES TO THE FILE OF AO FOR RE-ADJUDICATION. THE TRIBUNA L HAS TAKEN NOTE OF THE FINDING RECORDED BY THE LD.CIT(A) ON THESE ISSUES I N PARA-3 OF THE TRIBUNALS ORDER PASSED IN IT(SS)A.NO.40/AHD/2004. WE TAKE NOTE OF THE FINDING RECORDED BY THE LD.CIT(A) AS WELL AS FI NDING OF THE TRIBUNAL ON THIS ISSUE. THEY READ AS UNDER: '8. 2 I HAVE GONE THROUGH PARA 16 & 17 OF THE OR DER AND I FIND THAT THE A.O. HAS MADE THIS ADDITION ON THE BASES OF THE IMP RESSION GATHERED THAT THE APPELLANT HAS BEEN LENDING MONEY AND SO HE MIGH T HAVE FUNDED THE DEFAULTING MEMBERS OF V.C. AND MIGHT HAVE EARNED IN TEREST INCOME FROM THEM. IT IS UNDISPUTED THAT THE VC ACTIVITIES W ERE LOOKED AFTER BY ARS AND HENCE THE AMOUNTS MENTIONED IN THE LOOSE PAPE RS TO BE RECOVERED AS INTEREST FROM THE DEFAULTING MEMBERS WOULD BELONG T O THE PERSON IT(SS)A NO.265/AHD/2014 AND 426/AHD/2011 - 5 - MANAGING THE VC. THE APPELLANT HAS ALREADY FILED AN AFFIDAVIT OF ARS AND HE HAS ADMITTED THAT THE JOTTINGS BELONG TO HIM AS THEY PERTAIN TO HIS ACTIVITIES OF VC AND SINCE HE IS ASSESSED TO TAX, N OTICE U/S. 158BD COULD BE ISSUED IN THE CASE OF ARS FOR TAXING THIS AMOUNT . SINCE THE ADDITION HAS BEEN MADE ON THE BASIS OF THE OPINION OF THE A. O, AND WITHOUT ANY CONCRETE EVIDENCE TO SHOW THAT THE APPELLANT HAS AC TUALLY EARNED INTEREST INCOME BY FUNDING THE DEFAULTING MEMBERS, THE ADDIT ION OF RS.3,44,950/- MADE VIDE PARA 17 OF THE ORDER IS DELETED FROM THE ADDITION OF RS.10,21,187/-. THUS, THE APPELLANT GETS FURTHER R ELIEF OF RS.3,44,950/-. THE A.O. IS DIRECTED TO INITIATE PROCEEDINGS U/S.15 8BD OF THE ACT AGAINST SHRI ABDUL RAZAK SOLANKI AND CONSIDER THIS AMOUNT I N HIS HANDS. '9 2. I HAVE GONE THROUGH THE SUBMISSIONS AND LOOSE PAPERS SEIZED AND I FIND (HAT THE SUBMISSION OF THE A.R. IS CORRECT. IT IS SEEN THAT BOTH THE PAGES ARE INTER CONNECTED AND ARE INTER LINKED. AS THE JOTTINGS PERTAIN TO VC ACTIVITIES WHICH HAVE BEEN OWNED UP BY ARS BY FI LLING AN AFFIDAVIT, THE SAME CANNOT BE CONSIDERED AS [HE UNDISCLOSED IN COME OF THE APPELLANT AND HENCE THE ADDITION OF RS.90,000/- IS DELETED. T HE AO IS DIRECTED TO CONSIDER THIS AMOUNT IN THE PROCEEDINGS U/S.158BD O F THE ACT AGAINST SHRI ABDUL RAZAK SOLANKI. THUS, THE APPELLANT GETS FURTHER RELIEF OF RS.90,000/- FROM THE ADDITION OF RS.10,21,187/- XXX XXX XXX '12.2. I HAVE CONSIDERED THE ABOVE SUBMISSIONS A ND THE DETAILS FILED BEFORE ME DURING THE COURSE OF APPELLATE PROCEEDING S AND I FIND SOME FORCE IN THE ARGUMENT OF THE APPELLANT. THE AMOUNT OF R S.6,00,000/- IS ALSO A PART OF THE VC BUSINESS OF SHRI ARS AS DISCUSSED IN THE ABOVE PARAS AND IS A PART OF THE AMOUNT OF RS.7,50,000/- AS PER PA GE 38 OF ANNEXURE A- 10. SINCE THIS AMOUNT DOES NOT BELONG TO THE AP PELLANT BUT TO ARS, THE SAME CANNOT BE CONSIDERED AS AN OUTGOING WHILE W ORKING OUT THE UNEXPLAINED INVESTMENT / EXPENSES. AS PER THE RE VISED WORKING, THE UNEXPLAINED INVESTMENT /EXPENSES WOULD BE RS.2,630/ - ON 13-06-94. THE ADDITION OF RS. 2,630/- IS, THEREFORE, CONFIRME D AND THE BALANCE OF RS.7,75,425/- IS DELETED. THUS, THE APPELLANT GETS RELIEF OF RS.7,75,425/-. XXX XXX XXX IT(SS)A NO.265/AHD/2014 AND 426/AHD/2011 - 6 - FINDING OF THE ITAT 9. COMING TO MERITS, WE ARE OF T HE OPINION THAT THOUGH THE CIT(APPEALS) IN THE CASE OF SHRI ABDUL RAZAK SOL ANKI HAS NOT ACCEPTED THE SECOND AFFIDAVIT, BUT SO FAR AS ASSESS EE'S CASE IS CONCERNED, WE ARE OF THE OPINION THAT THE ASSESSING OFFICE R HAVING NOT ACCEPTED THE AFFIDAVIT OF SHRI ABDUL RAZAK SOLANKI FOR WANT OF CROSS-EXAMINATION, THE CLT(APPEALS) WAS NOT JUSTIFIED IN ACCEPTING THE SAME WITHOUT CROSS EXAMINING SHRI ABDUL RAZAK SOLOANKI EITHER OF HIS OWN PART OR BY ASSESSING OFFICER, MEANING THEREBY THAT SO FAR AS R EVENUES OBJECTION IN ASSESSEES CASE IS CONCERNED, THE DELETION OF ADDIT ION OF RS.3,44,950; AND OF RS.90,000/- BY THE CIT(APPEALS), AFTER ACCEPTING TH E AFFIDAVIT OF SHRI ABDUL RAZAK SOLANKI WAS NOT IN AC CORDANCE WITH LAW. CONSEQUENTLY, WE RESTORE THE ISSUE RELATING OF TH ESE TWO ADDITIONS BACK TO THE FILE OF ASSESSING OFFICER FOR FRESH CONSIDER ATION IN ACCORDANCE WITH LAW, AFTER ALLOWING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD. THE ASSESSEE WILL BE GIVEN PROPER OPPORTUNITY TO DEFEND HIMSELF. XXX XXX XXX 12. COMING TO GROUND NO.4 OF THE REVENUE, IT IS OBS ERVED THAT THE ASSESSING OFFICER HAD MADE THIS ADDITION AFTER REJE CTING THE AFFIDAVIT OF SHRI ABDUL RAZAK SOLANKI THAT UNACCOUNTED INVESTMEN T IN FDS IN LENDING AND ALSO INTEREST THEREOF WAS HIS INCOME AS IS EVIDENT FROM PARAGRAPH NO.4(B)(X) OF THE ACT THE ASSESSING OFFICER S ORDER. THE CIT(A) ON THE OTHER HAND, THE ADDITION OF RS.6,00,00 0/- REDUCED TO RS.2,630/- (PARAGRAPH NO.12.2 OF CIT(A)S ORDER), A FTER ACCEPTING THE AFFIDAVIT OF SHRI ABDUL RAZAK SOLANKI. 7. IN PURSUANCE OF ITATS ORDER, THE LD.AO HAS RE-A DJUDICATED THESE ISSUES VIDE ORDER DATED 31.12.2009. THIS ORDER HAS BEEN PASSED EX PARTE , BECAUSE ACCORDING TO THE AO, THE ASSESSEE DID NOT A TTEND THE PROCEEDINGS, AND SHRI ABDUL RAZAK SOLANKI (ARS FOR SHORT) FAILED TO APPEAR BEFORE THE AO. THE LD.AO HAS MADE ADDITION OF RS.3,27,949 /-, RS.5,57,370/- AND RS.90,000/-. THE COMPUTATION MADE BY THE AO IN THE IMPUGNED ORDER READS AS UNDER: IT(SS)A NO.265/AHD/2014 AND 426/AHD/2011 - 7 - INCOME AS REVISED VIDE ORDER U/S.251 DTD.6.2.2014 RS.7,36,756/- ADD: INTEREST INCOME TREATED AS UNEXPLAINED RS.3,27,949/- ADD: UNEXPLAINED FUND RS.5,57,370/- ADD: UNDISCLOSED INCOME RS.90,000/- TOTAL UNDISCLOSED INCOME RS.17,12,075/- 8. ON APPEAL, THE ASSESSEE REITERATED HIS CONTENTIO NS AND SUBMITTED THAT AO FAILED TO COMPLY WITH THE DIRECTIONS OF THE ITAT . THE LD.CIT(A) CALLED FOR REMAND REPORT AND DIRECTED THE AO TO CRO SS-EXAMINE ARS. THE AO AGAIN ISSUED NOTICE TO ARS AND HIS STATEMENT WAS RECORDED ON 11.1.2011. THE ASSESSEE WAS OUT OF INDIA AND COULD NOT CROSS-EXAMINE ARS. HE SOUGHT ADJOURNMENT FOR FOUR MONTHS, WHICH WAS NOT GRANTED BY THE LD.CIT(A). THE LD.CIT(A) HAS GONE THROUGH T HE STATEMENT OF ARS, AND THEREAFTER CONFIRMED THE ADDITIONS AND DISMISSE D THE APPEAL OF THE ASSESSEE. 9. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, W E HAVE GONE THROUGH THE RECORD CAREFULLY. COPY OF STATEMENT OF ARS RECORDED UNDER SECTION 131 OF THE ACT IS AVAILABLE ON PAGE NO.47 A ND 52 OF THE PAPER BOOK. W E HAVE GONE THROUGH THIS STATEMENT AND OTHER EVIDEN CES AVAILABLE ON RECORD. THE STAND OF THE ASSESSEE IS THAT OPPORTUNITY TO CROSS EXAMINE ARS WAS NOT GRANTED TO THE ASSESSEE. REVENUE AUTHORITIES HAVE NOT GIVEN SUFFICIENT OPPORTUNITY OF HEARING AN D MADE ADDITIONS. 10. ON THE OTHER HAND, THE LD.DR RELIED UPON THE OR DER OF THE LD.CIT(A). HE SUBMITTED THAT THOUGH THE AO HAS PAS SED EX PARTE ORDER, BUT IN THE REMAND REPORT, THE AO HAS EXAMINED ARS A ND THEREAFTER IT(SS)A NO.265/AHD/2014 AND 426/AHD/2011 - 8 - SUBMITTED REPORT. THE LD.CIT(A) CONSIDERED ALL THE SE ASPECTS AND THEN CONCURRED WITH THE AO. 11. ON DUE CONSIDERATION OF THE ABOVE FACTS, WE FIN D THAT IT IS A BLOCK ASSESSMENT AND CHAPTER XIV-B STARTING FROM SECTION 158B PROVIDE SPECIAL PROVISION FOR ASSESSMENT OF SUCH CASES UPTO THE SEARCH CONDUCTED PRIOR TO 31.5.2003. THE INCOME FROM THE BLOCK PERI OD IS TO BE COMPUTED UNDER SECTION 158BB ON THE BASIS OF SEIZED MATERIAL FOUND DURING THE COURSE OF SEARCH. DURING THE COURSE OF SEARCH A DI ARY WAS FOUND WHEREIN ENTRIES NARRATED AT PAGE NO.38 WERE CONSIDE RED BY THE AO. A PERUSAL OF THE ASSESSMENT ORDER WOULD INDICATE THAT THE LD.AO FOUND ENTRY OF RS.6,00,000/- IN THE NAME OF RAZAKBHAI NAV APARA. HE CONSTRUED THAT SUM OF RS.6 LAKHS WAS ADVANCED BY TH E ASSESSEE AT THE RATE OF 3% INTEREST. THE ASSESSEE WAS REQUIRED TO EXPLAIN SOURCE OF ABOVE RS.6.00 LAKHS. HE WAS ALSO REQUIRED TO EXPLAIN HOW THE ALLEGED INTEREST INCOME HAS BEEN ACCOUNTED FOR. SIMILARLY, ON PERU SAL OF THE ABOVE DIARY WOULD REVEAL THAT THE ASSESSEE WAS RUNNING A VC AND IF MEMBERS OF THIS VC FAILED TO PAY THEIR CONTRIBUTION IN TIME, THEN I NTEREST WOULD BE CHARGED FROM SUCH MEMBERS. THE AO WORKED OUT INTER EST OF RS.3,27,949/- FROM THESE MEMBERS WHO FAILED TO PAY THEIR CONTRIBUTION TOWARDS VC. IN THE STATEMENT OF ARS EXPLAINING VC, HE DISCLOSED THAT TEN TO TWELVE MEMBERS GOT TOGETHER AND RESOLVED THA T EACH MEMBER WOULD CONTRIBUTE A PARTICULAR AMOUNT, WHICH WOULD B E PUT FOR AUCTION AND THE LOWEST BIDDER WILL GET THE BID AMOUNT. FOR EXAMPLE, IF TEN MEMBERS CONTRIBUTE RS.1 LAKH EACH, IT WILL BE RS.10 LAKHS, THEN, ANY PERSON WHO TAKES THAT VC, SAY FOR RS.8,00,000/-, TH EN FOR THE REMAINING TEN MONTHS, HE CONTINUES TO PAY RS.1 LAKH PER MONTH AND PROFIT OF RS.2,00,000/- WOULD BE DISTRIBUTED AMONGST ALL THE MEMBERS. IF ANY IT(SS)A NO.265/AHD/2014 AND 426/AHD/2011 - 9 - MEMBERS FAILED TO CONTRIBUTE HIS SHARE OF RS.1 LAKH , IN THE PRECEDING MONTH, THEN INTEREST WOULD BE CHARGED FROM SUCH MEM BER. THESE ARE NARRATIONS IN THE DIARY WRITTEN BY THE ASSESSEE FOU ND FROM HIS POSSESSION. WHEN THE EXPLANATION OF THE ASSESSEE W AS SOUGHT ABOUT THE NARRATIONS IN THE DIARY, THEN AT THE FIRST INSTANCE , HE DISCLOSED THAT DIARY BELONGED TO ARS. AFFIDAVIT OF THE ARS WAS SUBMITTE D, BUT THIS AFFIDAVIT WAS NOT ACCEPTED BY THE AO. HOWEVER, THE LD.CIT(A) ON APPEAL ACCEPTED THIS. THE TRIBUNAL SET ASIDE ORDER OF THE LD.CIT(A) BY OBSERVING THAT WITHOUT EXAMINING OF ARS HOW AFFIDAVIT COULD B E ACCEPTED. LATER ON ARS HAS RETRACTED HIS AFFIDAVIT. THE ONUS UPON THE ASSESSEE TO PROVE SOURCE OF MONEY NARRATED IN THOSE ENTRIES. HE HAS NOT PRODUCED ANY EVIDENCE. THE SO-CALLED ARS WAS HIS WITNESS, WHO F IRSTLY OWNED UP THESE ENTRIES, BUT LATER ON RETRACTED FROM HIS EARL IER AFFIDAVIT. IN SUCH SITUATION, IT IS THE ASSESSEE WHO SHOULD PRODUCE TH E ARS AND WHO SHOULD FILE A CONFIRMATION FROM THE ARS THAT ENTRIE S NARRATED IN THE DIARY RELATES TO HIM AND NOT THE ASSESSEE, ONLY THE N THE ASSESSEE SHOULD ABSOLVE HIMSELF FROM THE LIABILITY. ANY OPPORTUNIT Y TO CROSS-EXAMINE ARS WOULD NOT SERVE PURPOSE. IT IS THE ASSESSEE, W HO HAS TO FIRST PRODUCE POSITIVE EVIDENCE. OPPORTUNITY TO CROSS EX AMINE ARS WAS TO BE GIVEN TO THE AO BECAUSE HE WAS A WITNESS OF THE ASSESSEE. NO DOUBT, IF A WITNESS TURNED HOSTILE THEN THE PERSON WHO CAL LS THE WITNESS WILL ALSO HAVE RIGHT TO CROSS EXAMINE THE WITNESS. BUT FOR T HE ARGUMENTS SAKE, EVEN IF WE EXCLUDE THE EVIDENCE OF ARS, THEN NOTHIN G HAS BEEN PRODUCED BY THE ASSESSEE FROM HIS SIDE. THE STATEM ENT OF ARS WAS RECORDED BY THE AO ON OATH. IT IS HIS RIGHT TO CRO SS-EXAMINE HIM, AND IN THIS CROSS-EXAMINATION, HE HAS EXPLAINED MODUS OPERANDI OF THE TRANSACTIONS, AND EXPLAINED HOW THESE TRANSACTIONS HAVE BEEN WRITTEN BY IT(SS)A NO.265/AHD/2014 AND 426/AHD/2011 - 10 - THE ASSESSEE, HOW HE WAS RUNNING VC AND HOW HE HAD GIVEN LOAN TO THE PERSONS BY MAKING A REFERENCE OF ARS BECAUSE THEY W ERE KNOWN TO THE ARS. ARS HAS NOT OWNED THE TRANSACTION. CONSIDERI NG THE ABOVE FACTORS, WE ARE OF THE VIEW THAT THE ASSESSEE FAILE D TO EXPLAIN THE NARRATIONS IN THE DIARY, HENCE, THE LD.REVENUE AUTH ORITIES HAVE RIGHTLY ADDED THE ABOVE AMOUNTS IN THE TOTAL INCOME OF THE ASSESSEE. WE DO NOT FIND ANY MERIT IN THIS APPEAL OF THE ASSESSEE. IT IS DISMISSED. 12. NOW WE TAKE PENALTY APPEAL I.E. IT(SS)A.NO.265/ AHD/2014. 13. THE ASSESSEE HAS FILED BLOCK RETURN ON 31.5.200 8 DECLARING TRUE UNDISCLOSED INCOME FOR THE BLOCK PERIOD AT RS.5,35, 540/-. IN THE ORIGINAL ASSESSMENT ORDER, THIS INCOME WAS DETERMINED AT RS. 23,34,780/-. WE HAVE EXTRACTED COMPUTATION MADE BY THE AO IN THE ASSESSM ENT ORDER DATED 31.12.2009 WHILE DEALING WITH QUANTUM APPEAL. THE AO HAS DETERMINED UNDISCLOSED INCOME AT RS.17,12,075/-. 14. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, WE HAVE GONE THROUGH THE RECORD CAREFULLY. BEFORE WE EMBARK UPON AN INQ UIRY ON THE FACTS OF THE PRESENT CASE, WE DEEM IT APPROPRIATE TO OBSERVE THA T A PENALTY UNDER SECTION 158BFA(2) IS TO BE IMPOSED ALTOGETHER UNDER DIFFERENT CIRCUMSTANCES THAN UNDER SECTION 271(1)(C) FOR CONC EALMENT OF INCOME. THIS DISTINCTION HAS BEEN ELABORATELY PROPOUNDED IN THE DECISION OF HONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF CIT VS. BEECHARBHAI P. PARMAR, 341 ITR 499. THE HONBLE COURT HAS TAKEN NOTE OF SECTION 158BFA, AND THEREAFTER EXPOUNDED THE MEANING AND IN TERPRETATION OF THIS SECTION. THE DISCUSSION MADE BY THE HONBLE COURT FROM PARA 8 TO 9 IN THIS REGARD READS AS UNDER: IT(SS)A NO.265/AHD/2014 AND 426/AHD/2011 - 11 - 8. HAVING THUS HEARD LEARNED COUNSEL FOR THE PARTI ES, WE MAY TAKE NOTE OF THE RELEVANT STATUTORY PROVISIONS. SEC. 158BFA O F THE ACT IS PART OF CHAPTER XIV-B, WHICH LAYS DOWN SPECIAL PROCEDURE FO R ASSESSMENT OF SEARCH CASES. SEC. 158BFA PERTAINS TO LEVY OF INTER EST AND PENALTY IN CERTAIN CASES. SUB-S. (2) OF S. 158BFA, WHICH IS RE LEVANT FOR OUR PURPOSE, READS AS UNDER: '158BFA. LEVY OF INTEREST AND PENALTY IN CERTAIN CA SES(1) ................... (2) THE AO OR THE CIT(A), IN THE COURSE OF ANY PROC EEDINGS UNDER THIS CHAPTER, MAY DIRECT THAT A PERSON SHALL PAY BY WAY OF PENALTY A SUM WHICH SHALL NOT BE LESS THAN THE AMOUNT OF TAX LEVI ABLE BUT WHICH SHALL NOT EXCEED THREE TIMES THE AMOUNT OF TAX SO LEVIABLE IN RESPECT OF THE UNDISCLOSED INCOME DETERMINED BY THE AO UNDER CL. ( C) OF S. 158BC : PROVIDED THAT NO ORDER IMPOSING PENALTY SHALL BE MA DE IN RESPECT OF A PERSON IF (I) SUCH PERSON HAS FURNISHED A RETURN UNDER CL. (A ) OF S. 158BC; (II) THE TAX PAYABLE ON THE BASIS OF SUCH RETURN HA S BEEN PAID OR, IF THE ASSETS SEIZED CONSIST MONEY, THE ASSESSEE OFFERS TH E MONEY SO SEIZED TO BE ADJUSTED AGAINST THE TAX PAYABLE; (III) EVIDENCE OF TAX PAID IS FURNISHED ALONG WITH THE RETURN; AND (IV) AN APPEAL IS NOT FILED AGAINST THE ASSESSMENT OF THAT PART OF INCOME WHICH IS SHOWN IN THE RETURN : PROVIDED FURTHER THAT THE PROVISIONS OF THE PRECEDI NG PROVISO SHALL NOT APPLY WHERE THE UNDISCLOSED INCOME DETERMINED BY TH E AO IS IN EXCESS OF THE INCOME SHOWN IN THE RETURN AND IN SUCH CASES TH E PENALTY SHALL BE IMPOSED ON THAT PORTION OF UNDISCLOSED INCOME DETER MINED WHICH IS IN EXCESS OF THE AMOUNT OF UNDISCLOSED INCOME SHOWN IN THE RETURN.' 8. UPON PERUSAL OF SUB-S. (2) OF S. 158BFA OF THE A CT, IT WOULD EMERGE THAT THE AO OR CIT(A) HAS THE POWER TO IMPOSE PENAL TY IN COURSE OF ANY PROCEEDINGS UNDER THE SAID CHAPTER, WHICH PENALTY W OULD RANGE BETWEEN 100 PER CENT TO 300 PER CENT OF THE TAX LEVIABLE ON THE UNDISCLOSED INCOME DETERMINED BY THE AO UNDER CL. (C) OF S. 158BC OF T HE ACT. 8.1 PROVISO TO SUB-S. (2) OF S. 158BFA OF THE ACT, HOWEVER, PROVIDES FOR FOUR CONDITIONS, UPON SATISFACTION OF WHICH, THE AS SESSEE WOULD GET IMMUNITY FROM SUCH PENALTY. SUCH CONDITIONS ARE TO BE SATISFIED IT(SS)A NO.265/AHD/2014 AND 426/AHD/2011 - 12 - CUMULATIVELY. IN ESSENCE, IT PROVIDES THAT THE PENA LTY SHALL NOT BE IMPOSED IF THE ASSESSEE FURNISHES A RETURN UNDER CL. (A) OF S. 158BC; ALSO PAYS TAX ON THE BASIS OF SUCH RETURN, OR OFFERS FOR ADJUSTME NT ANY MONEY SEIZED, OR PRODUCES EVIDENCE OF HAVING PAID SUCH TAX, AND ALSO DOES NOT FILE APPEAL AGAINST ASSESSMENT ON THAT PART OF THE INCOME WHICH IS SHOWN IN THE RETURN. IN OTHER WORDS, IN CASES OF PROCEEDINGS FOR BLOCK ASSESSMENT, THE ASSESSEE WOULD HAVE AN ADDITIONAL CHANCE TO AVOID P ENALTY BY FURNISHING A RETURN, PAYING TAX ON SUCH UNDISCLOSED RETURN AND ACCEPTING FINALITY WITH RESPECT TO THE SAME. 8.2 FURTHER PROVISO TO SUB-S. (2) OF S. 158BFA IS M ERELY IN NATURE OF CLARIFICATION AND PROVIDES THAT THE FIRST PROVISO W OULD NOT APPLY WHERE UNDISCLOSED INCOME DETERMINED BY THE AO IS IN EXCES S OF THE INCOME SHOWN IN THE RETURN AND IN SUCH CASES, PENALTY SHAL L BE IMPOSED ON THAT PORTION OF THE UNDISCLOSED INCOME DETERMINED, WHICH IS IN EXCESS OF THE AMOUNT OF UNDISCLOSED INCOME SHOWN IN THE RETURN. 8.3 CLOSELY SEEN, SUB-S. (2) OF S. 158BFA MAKES IT CLEAR THAT IT IS WELL WITHIN THE DISCRETION OF THE AO, WHILE FRAMING THE ASSESSMENT FOR THE BLOCK PERIOD, WHETHER OR NOT TO IMPOSE ANY PENALTY OR NOT. THE WORDS, 'MAY DIRECT' HAVE TO BE GIVEN ITS NORMAL MEANING, L EAVING DISCRETION TO THE OFFICER. IN ABSENCE OF ANY SPECIAL REASON THE W ORD, 'MAY' CANNOT BE READ AS 'SHALL'. 8.4 IN CASE OFHINDUSTAN STEEL LTD. VS. STATE OF ORI SSA (1972) 83 ITR (SC) 26 THE APEX COURT IN CONNECTION WITH PENALTY PRESCR IBED IN ORISSA SALES- TAX ACT OBSERVED : '.. ..AN ORDER IMPOSING PENALTY FOR FAILURE TO CARR Y OUT A STATUTORY OBLIGATION IS THE RESULT OF A QUASI-CRIMINAL PROCEE DING, AND PENALTY WILL NOT ORDINARILY BE IMPOSED UNLESS THE PARTY OBLIGED, EITHER ACTED DELIBERATELY IN DEFIANCE OF LAW OR WAS GUILTY OF CO NDUCT CONTUMACIOUS OR DISHONEST, OR ACTED IN CONSCIOUS DISREGARD OF ITS O BLIGATION. PENALTY WILL NOT ALSO BE IMPOSED MERELY BECAUSE IT IS LAWFUL TO DO SO. WHETHER PENALTY SHOULD BE IMPOSED FOR FAILURE TO PERFORM A STATUTOR Y OBLIGATION IS A MATTER OF DISCRETION OF THE AUTHORITY TO BE EXERCIS ED JUDICIALLY AND ON A CONSIDERATION OF ALL THE RELEVANT CIRCUMSTANCES. EV EN IF A MINIMUM PENALTY IS PRESCRIBED, THE AUTHORITY COMPETENT TO I MPOSE THE PENALTY WILL BE JUSTIFIED IN REFUSING TO IMPOSED PENALTY, WHEN T HERE IS A TECHNICAL OR VENIAL BREACH OF THE PROVISIONS OF THE ACT OR WHERE THE BREACH FLOWS FROM A BONA FIDE BELIEF THAT THE OFFENDER IS NOT LIABLE TO ACT IN THE MANNER PRESCRIBED BY THE STATUTE.' 9. THE CONTENTION OF THE COUNSEL FOR THE REVENUE TH AT ONLY UPON SATISFACTION OF THE CONDITIONS CONTAINED IN PROVISO TO SUB-S. (2) THAT THE IT(SS)A NO.265/AHD/2014 AND 426/AHD/2011 - 13 - ASSESSEE, IN CASE OF THE BLOCK ASSESSMENT CAN BE SP ARED OF THE PENALTY CANNOT BE ACCEPTED. IT IS, OF COURSE, TRUE THAT UPO N SATISFYING SUCH CONDITIONS, THE ASSESSEE WOULD GET IMMUNITY FROM PE NALTY. NEVERTHELESS, THIS IS NOT A THING AS TO SUGGEST THAT IN NO OTHER CASE, OR ON NO OTHER GROUND, THE AO MAY AT HIS DISCRETION, NOT IMPOSE PE NALTY THE MOMENT ADDITIONS UNDER CL. (C) OF S. 158BC ARE SUSTAINED. IN OTHER WORDS, WE ARE UNABLE TO HOLD THAT THE PENALTY UNDER S. 158BFA(2) IS MANDATORY IN NATURE. 9.1 IT IS TRUE THAT S. 273B OF THE ACT WHICH PROVID ES THAT PENALTY SHALL NOT BE IMPOSED IN CERTAIN CASES ON THE ASSESSEE PROVING THAT THERE WAS REASONABLE CAUSE FOR FAILURE TO PAY TAX REFERS TO S EVERAL PROVISIONS SUCH AS SS. 271, 271A, ETC., MAKES NO MENTION OF S. 158B FA(2). THIS STILL DOES NOT MEAN THAT PENALTY UNDER S. 158BFA(2) IS MANDATO RY. 15. THE HONBLE COURT, THEREAFTER, OBSERVED THAT TH E TRIBUNAL IN THAT CASE HAS DELETED PENALTY FOR THREE REASONS VIZ. (A) ADDITION WAS MADE ONLY ON ESTIMATION, (B) THERE IS NO CONCEALMENT OF PARTICULARS BY THE A SSESSEE, AND (C) CERTAIN ADDITIONS WOULD NOT GIVE RISE TO PENALTY PROCEEDING S. THESE REASONS DID NOT GET APPROVAL OF THE HONBLE COURT, AND THEREFORE, PENAL TY IN THE CASE OF CIT VS.BEECHARBHAI P. PARMAR (SUPRA) WAS RESTORED. 16. IT IS PERTINENT TO MENTION HERE THAT CHAPTER XI VB STARTING FROM SECTION 158B PROVIDE SPECIAL PROCEDURE FOR ASSESSMENT OF SE ARCH CASES UPTO THE SEARCH CONDUCTED PRIOR TO 31.5.2003. UNDER THE SCHEME OF BLOCK ASSESSMENT, INCOME OF AN ASSESSEE FOR THE BLOCK PURPOSE IS TO BE COMPU TED UNDER SECTION 158BB. IN A SERIES OF DECISIONS, IT HAS BEEN HELD THAT INCOME FROM THE BLOCK IS TO BE COMPUTED ON THE BASIS OF SEIZED MATERIAL. IN OTHER WORDS, WHEN THE AO ISSUES NOTICE UNDER SECTION 158BC OF THE ACT, INVITING THE ASSESSEE TO FILE RETURN FOR THE BLOCK PERIOD, HE WOULD SUPPLY COPIES OF SEIZED MATE RIAL ON THE BASIS OF WHICH THE ASSESSEE HAS TO COMPUTE TRUE UNDISCLOSED INCOME . IN OTHER WORDS, MATERIAL ON THE BASIS OF WHICH INCOME OF AN ASSESSEE HAS TO BE DETERMINED FOR THE PURPOSE OF BLOCK PERIOD IS COMMON. IT IS THE MATER IAL COLLECTED DURING THE COURSE OF SEARCH. IN THESE CIRCUMSTANCES, THE ALLE GATIONS OR THE CHARGE AGAINST AN ASSESSEE SHOULD BE WHY HE FAILED TO COMPUTE TRUE UNDISCLOSED INCOME. IT IS IT(SS)A NO.265/AHD/2014 AND 426/AHD/2011 - 14 - FURTHER OBSERVED THAT T HE HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS.BEECHARBHAI P. PARMAR (SURPA) HAS OBSERVED IN PA RA 8.1 IN OTHER WORDS, IN CASES OF PROCEEDINGS FOR BLOCK ASSESSMENT, THE ASSE SSEE WOULD HAVE AN ADDITIONAL CHANCE TO AVOID PENALTY BY FURNISHING A RETURN, PAYING TAX ON SUCH UNDISCLOSED RETURN AND ACCEPTING FINALITY WITH RESP ECT TO THE SAME. THIS WAS OBSERVED WHILE CONSTRUING THE MEANING OF SECTION 15 8BFA AND EXPOUNDING UNDER WHICH CONDITION THE ASSESSEE COULD GET IMMUNI TY FROM SUCH PENALTY. NOW, THIS IS THE AREA WHICH WOULD GIVE RISE TO THE LITIGATION, HOW THE ASSESSEE WOULD COMPUTE HIS TRUE UNDISCLOSED INCOME AND WHERE THERE IS A DEBATE ABOUT THE COMPUTATION OF PARTICULAR AMOUNT ON THE BASIS O F ALLEGED SEIZED MATERIAL, THEN, THERE WOULD BE DIFFERENCE OF OPINION BETWEEN THE ASSESSEE VIS--VIS THE AO. IF IT IS DEMONSTRATED THAT WITH THE HELP OF CI RCUMSTANTIAL EVIDENCE THAT INCLUSION OF A PARTICULAR ITEM IN THE ULTIMATE UNDI SCLOSED INCOME DETERMINED BY THE AO WAS NOT CERTAIN, RATHER THERE CAN BE TWO OPI NIONS ABOUT ITS INCLUSION OR EXCLUSION, THEN TO OUR MIND THE ASSESSEE SHOULD NOT BE VISITED WITH PENALTY. JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT I N THE CASE OF CIT VS.BEECHARBHAI P. PARMAR (SUPRA) HAS CATEGORICALLY LAID DOWN THAT IT IS NOT MANDATORY TO IMPOSE PENALTY UNDER SECTION 158BFA(2) . SIMILARLY CONDITIONS REQUIRED TO BE FULFILLED FOR THE PURPOSE OF VISITIN G AN ASSESSEE WITH PENALTY UNDER SECTION 271(1)(C) ARE ALSO NOT TO BE EVALUATED FOR DECIDING THE FACTOR WHETHER THE ASSESSEE SHOULD BE VISITED WITH PENALTY OR NOT. IN OUR OPINION, CIRCUMSTANCES FOR DECIDING THE FACTOR FOR VISITING AN ASSESSEE WI TH PENALTY UNDER SECTION 158BFA(2) ARE ALTOGETHER DIFFERENT THAN THE ONE UND ER SECTION 271(1)(C) OF THE ACT. 17. IN THE LIGHT OF THE ABOVE, LET US EXAMINE THE F ACTS OF THE PRESENT CASE. DURING THE COURSE OF SEARCH, A DIARY INVENTORISED A S ANNEXURE A WAS FOUND. ON AN ANALYSIS OF THE PAGES OF THAT DIARY, THE LD.AO HAS MADE ADDITIONS AND ULTIMATELY QUANTIFIED THE UNDISCLOSED INCOME OF THE BLOCK IT(SS)A NO.265/AHD/2014 AND 426/AHD/2011 - 15 - PERIOD AT RS.17,12,075/-. ALLEGATIONS OR CHARGE AG AINST THE ASSESSEE WAS THAT HE FAILED TO COMPUTE THE TRUE UNDISCLOSED INCO ME FROM THOSE PAGES. NEITHER IN THE QUANTUM NOR IN THE PENALTY PROCEEDIN GS ASSESSEE WAS ABLE TO GIVE ANY EXPLANATION. IN THE QUANTUM APPEAL, HE FA ILED TO GIVE EXPLANATION ABOUT THE SOURCE OF MONEY WHICH WAS GIVEN ON LOAN O N INTEREST ETC. IN PENALTY PROCEEDINGS, HE FAILED TO GIVE EXPLANATION WHY HE COULD NOT COMPUTE TRUE UNDISCLOSED INCOME FROM THESE SEIZED M ATERIAL. THEREFORE, WE DO NOT FIND ANY MERIT IN THIS APPEAL ALSO. HOWE VER, IT IS PERTINENT TO OBSERVE THAT AO HAS COMPUTED PENALTY ON THE TOTAL U NDISCLOSED INCOME OF RS.17,12,075/- WHICH INCLUDED THE INCOME DISCLOSED BY THE ASSESSEE IN THE RETURN. AS PER THE PROVISO TO SECTION 158BFA, THE PENALTY OUGHT TO BE COMPUTED ONLY ON THE ADDITIONS MADE BY THE AO TO TH E UNDISCLOSED INCOME OF THE ASSESSEE. IN OTHER WORDS, THIS TOTAL AMOUNT OF UNDISCLOSED INCOME BE REDUCED BY A SUM OF INCOME DISCLOSED BY T HE ASSESSEE AT RS.5,35,540/-. THE LD.AO SHALL COMPUTE THE PENALTY ON ADDITION OF RS.11,76,535/- (RS.17,12,075/-MINUS RS.5,35,540/-) WITH THE ABOVE OBSERVATION, THE APPEAL BE TREATED AS PARTLY ALLOWE D. 18. IN THE RESULT, IT(SS)A.NO.426/AHD/2011 IS DISMI SSED AND IT(SS)A.NO.265/AHD/2014 IS PARTLY ALLOWED. PRONOUNCED IN THE OPEN COURT ON 1 ST NOVEMBER, 2018. SD/- SD/- (AMARJIT SINGH) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED, 01/11/2018