Shri Shailesh M. Desai, Surat V. The ACIT., Circle-3, Surat

ITSSA 43/AHD/2009

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 8312 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 11 month(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 07-07-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 07-07-2011
• Assessment Year: misc
• Appeal Filed On: 06-08-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MEENA
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH AHMEDABAD (BEFORE S/SHRI G. D. AGARWAL, VP AND BHAVNESH SAINI , JM) IT (SS) A NO.43/AHD/2009 BLOCK PERIOD: 1990-91 TO 1999-2000 (AND UP TO 29.10 .1999) SHAILESH M. DESAID, 5, DEVDEEP SOCIETY, NR. SARGAM SHOPPING CENTRE, SURAT VS THE A. C. I. T., CIRCLE 3(1), AAYAKAR BHAVAN, MAJURA GATE, SURAT PA NO. ABKPD 0710B (APPELLANT) (RESPONDENT) APPELLANT BY SHRI HARDIK VORA, AR RESPONDENT BY SHRI S. K. MEENA, SR. DR O R D E R PER BHAVNESH SAINI: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED CIT(A)-II , SURAT DATED 12 TH JUNE, 2009 FOR THE ABOVE BLOCK PERIOD, CHALLENGING THE LEVY OF PENALTY OF RS.2,07,600/- U/S 158BFA (2) OF THE IT ACT. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT SEARCH A CTION U/S 132 OF THE IT ACT WAS CARRIED OUT AT THE PREMISES OF M/S. OHM DEVELOPERS, SURAT ON 29-10-1999. DURING THE COURSE OF SEARCH BO OKS OF ACCOUNTS AND OTHER INCRIMINATING DOCUMENTS WERE FOUND AND SE IZED WHICH WERE ALSO CONCERNING THE ASSESSEE AND OTHERS. AFTER MAKING THE PRELIMINARY ENQUIRIES, PROCEEDINGS U/S 158BD READ W ITH SECTION 158BC OF THE IT ACT WERE INITIATED AGAINST THE ASSE SSEE ON 22-06-2004 WHICH WAS SERVED UPON THE ASSESSEE ON 29 -06-2004. THE AO AFTER CONSIDERING THE MATERIAL ON RECORD COM PUTED THE IT (SS) A NO.43 /AHD/2009 SHAILESH M. DESAI VS ACIT, CIRCLE-3, SURAT 2 UNDISCLOSED INCOME ON WHICH PART RELIEF WAS ALLOWED BY THE LEARNED CIT(A). THE AO VIDE SEPARATE ORDER IMITATED PENALTY PROCEEDINGS AND NOTED THAT THE ASSESSEE FAILED TO EXPLAIN THE SOURC ES OF INVESTMENTS OF RS.3,46,000/- IN PURCHASE OF THE FLAT, THEREFORE , THE ASSESSEE COMMITTED DEFAULT WITHIN THE MEANING OF SECTION 158 BFA(2) OF THE IT ACT AND PENALTY WAS ACCORDINGLY IMPOSED VIDE SEPARA TE ORDER. THE LEARNED CIT(A) CONFIRMED THE SAME AND DISMISSED THE APPEAL OF THE ASSESSEE. 3. THE LEARNED COUNSEL FOR THE ASSESSEE AT THE OUTS ET SUBMITTED THAT THE REVENUE AS WELL AS THE ASSESSEE PREFERRED CROSS APPEALS BEFORE THE TRIBUNAL ON QUANTUM IN IT(SS) A NO.66/AH D/2007 AND IT(SS) A NO.72/AHD/2007 IN WHICH THE ASSESSEE CHALL ENGED THE INITIATION OF PROCEEDINGS U/S 158BD OF THE IT ACT AND THE TRIBUNAL VIDE ORDER DATED 15-10-2010 SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND QUASHED THE PROCEEDINGS U/S 158BD OF THE IT ACT. COPY OF THE ORDER IS FILED ON RECORD AND THE SAME IS GIVEN TO THE LEARNED DR. 4. CONSIDERING THE ABOVE FACTS IN THE LIGHT OF THE ORDER OF THE TRIBUNAL ON QUANTUM, WE DO NOT FIND ANY JUSTIFICATI ON FOR LEVY OF PENALTY. SINCE THE QUANTUM HAS BEEN DELETED ON WHIC H PENALTY WAS IMPOSED BECAUSE OF THE QUASHING OF THE BLOCK ASSESS MENT PROCEEDINGS U/S 158BD OF THE IT ACT, NO PENALTY IS LEVIABLE IN THE MATTER. WE ACCORDINGLY, SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND CANCEL THE PENALTY IT (SS) A NO.43 /AHD/2009 SHAILESH M. DESAI VS ACIT, CIRCLE-3, SURAT 3 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 07-07-2011 SD/- SD/- (G. D. AGARWAL) VICE PRESIDENT (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 07-07-2011 LAKSHMIKANT/- 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 D Y. REGISTRAR, ITAT, AHMEDABAD