The ITO, Ward-7(1), Ahmedabad V. Smt. Padmaben V.Patel, Ahmedabad

ITSSA 449/AHD/2012

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 0858 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 2 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 27-08-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 19-08-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 24-09-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: R N PARBAT S SHRI P M MEH

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD , , BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER SL. NO(S) IT(SS)A NO(S) ASST.YEAR (AY) APPEAL(S) BY APPELLANT VS. RESPONDENT APPELLANT RESPONDENTS 1. 448/AHD/2012 2006-07 ITO WARD-7(1) AHMEDABA- BAD SMT.ANANDIBEN M.PATEL C/O.PADMAVATI TRADING AT: JETALPUR, TAL:DASCROI, AHMEDABAD- PIN-382 426 PAN:ACMPP3642F 2. 449/AHD/2012 2006-07 -DO- (REVENUE) SMT.PADMABEN V.PATEL C/O.PADMAVATI TRADING (ADDRESS SAME AS ABOVE) PAN:ADMPP3634P 3. 450/AHD/2012 2006-07 -DO- (REVENUE) SHRI NITIN VADILAL PATEL C/O.PADMAVATI TRADING (ADDRESS SAME AS ABOVE) PAN: ACOPP 7665A / APPELLANT BY : SHRI R.N. PARBAT, CIT-DR !' # / RESPONDENTS BY : SHRI P.M.MEHTA WITH SHRI G.M.THAKOR,ARS $# / DATE OF HEARING 19/08/2015 %&'(# / DATE OF PRONOUNCEMENT 27/08/2015 IT(SS)A NOS.448,449 & 450 /AHD/2012 ITO VS.SMT.ANANDIBEN M.PATEL/ SMT.PADMABEN V.PATEL & NITIN VADILAL PATEL RESPECTI VELY ASST.YEAR 2006-07 - 2 - / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THESE THREE APPEALS BY THE DIFFERENT ASSESSEES AR E DIRECTED AGAINST THE COMMON ORDER OF THE LD.COMMISSIONER OF INCOME T AX(APPEALS)-I, AHMEDABAD [CIT(A) IN SHORT] DATED 28/06/2012 PERTAINING TO ASSESSMENT YEAR (AY) 2006-07. SINCE IN ALL THESE A PPEALS GROUNDS ARE IDENTICAL, THEREFORE THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIE NCE. THE ASSESSEES HAVE RAISED THE FOLLOWING COMMON GROUNDS, EXCEPT QU ANTUM IN APPEAL(S):- (EXTRACTED FROM IT(SS)A NO.448/AHD/2012 FOR AY 2 006-07 IN THE CASE OF SMT.ANANDIBEN M.PAEL) I) THE LD.COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY OF RS.4,55,878/- U/S. 271(1)(C) OF THE ACT, ON ADDITIONS MADE BY THE A.O. WHICH HAD BEEN C ONFIRMED BY THE CIT(A). II) THE LD.COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND ON FACTS IN CONCLUDING THAT THE BASIS OF LEVY OF PENAL TY HAD CEASED TO EXIST. III) THE LD.COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND ON FACTS IN OBSERVING THAT THE A.O. COULD LEVY PENALTY U/S.271(1)(C)OF THE I.T.ACT, AFTER DECIDING THE ISSUE RESTORED BACK TO THE FILE OF THE CIT(A) BY THE HONBLE ITAT IV) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX (A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. IT(SS)A NOS.448,449 & 450 /AHD/2012 ITO VS.SMT.ANANDIBEN M.PATEL/ SMT.PADMABEN V.PATEL & NITIN VADILAL PATEL RESPECTI VELY ASST.YEAR 2006-07 - 3 - V) IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LD.C OMMISSIONER OF INCOME TAX (A) MAY BE SET-ASIDE AND THAT OF THE ASS ESSING OFFICER BE RESTORED. 2. BRIEFLY STATED COMMON FACTS ARE THAT THE ASSES SING OFFICER (AO IN SHORT) IN ASSESSMENT ORDER DATED 28/12/200728/12/20 07 INITIATED PENALTY PROCEEDING ON THE ADDITION(S) MADE ON ACCOUNT OF UN EXPLAINED HOUSEHOLD EXPENDITURE AND UNDISCLOSED CAPITAL GAIN. SUBSEQU ENTLY, THE AO LEVIED PENALTY U/S.271(1)(C) OF THE ACT AMOUNTING TO RS.4, 55,878/- (IN THE CASE OF SMT.ANANDIBEN M.PATEL). THE ASSESSEE(S) FEELING AGGRIEVED BY THE ORDER OF THE AO, PREFERRED APPEAL(S) BEFORE THE LD. CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE(S) ALLO WED THE APPEAL(S). 3. AT THE OUTSET, THE LD.COUNSEL FOR THE ASSESSEE S UBMITTED THAT IN QUANTUM PROCEEDING THE TRIBUNAL (ITAT D BENCH AHM EDABAD) IN IT(SS)A NOS.100 TO 107/AHD/2010, FOR AY 2006-07 WAS PLEASED TO RESTORE THE APPEALS TO THE FILE OF LD.CIT(A). HE H AS PLACED THE DECISION OF THE COORDINATE BENCH RENDERED IN IT(SS)A NOS.100 TO 107/AHD/2010 DATED 07/06/2012. THEREFORE, HE SUBMITTED THAT THE SE PENALTY APPEALS MAY ALSO BE RESTORED BACK TO THE FILE OF LD.CIT(A). 3.1. THE LD.CIT-DR HAS NO OBJECTION TO THE PROPOSI TION. IT(SS)A NOS.448,449 & 450 /AHD/2012 ITO VS.SMT.ANANDIBEN M.PATEL/ SMT.PADMABEN V.PATEL & NITIN VADILAL PATEL RESPECTI VELY ASST.YEAR 2006-07 - 4 - 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE DECISION OF THE TRIBUNAL RELIED UPON BY THE LD.COUNSEL FOR THE ASSESSEE. WE FIND THAT THE LD.CIT(A) HAS DECI DED THIS ISSUE BY OBSERVING AS UNDER:- 3. IT IS SEEN THAT HONBLE ITAT BENCH D AHMEDAB AD PASSED A COMMON DECISION DATED 7.6.2012 IN THE CASE OF THE ASSESSEE(S) UNDER APPEAL (1) SHRI DILIPBHAI H. PATEL, (2) SHRI SWA PNIL M.PATEL, (3) SHRI PINAL M.PATEL, (4) SMT.AANDIBEN M.PATEL, (5) SMT. P ADMABEN V.PATEL, (6) SHRI NITINKUMAR V.PATEL IN AY 2006-07 VIDE IT(SS) A NO.100 TO 107/AHD/2010, REMITTED THE APPEALS BACK TO THE FILE OF CIT(A) FOR FRESH ADJUDICATION. PERUSAL OF HONBLE ITAT ORDER SHOWS THAT THE APPELLANTS HAD CHALLENGED THE VALIDITY OF ORDER PASSED U/S.153 A/C AND HAD ALSO CHALLENGED THE ADDITION SUSTAINED WITH RESPECT TO U NDISCLOSED CAPITAL GAINS. AS CIT(A)-III ORDER DATED 11.11.2009 (ON THE BASIS OF WHICH PENALTY UNDER DISPUTE U/S.271(1)(C) HAD BEEN IMPOSED IN THE CASES OF THE ASSESSEE(S) IN APPEAL IN AY 2006-07), HAD BEEN REMI TTED BACK TO THE FILE OF CIT(A) BY HONBLE ITAT THROUGH ORDER DATED 7.6.2 012 IN THE CASE OF THESE ASSESSEE(S) THE VERY BASIS OF PENALTY DOES NO T SURVIVE, AND THEREFORE THE AO IS DIRECTED TO DELETE THE PENALTIE S IMPOSED, WHICH ARE AS UNDER:- NAME OF THE ASSESSEE AMOUNT OF PENALTY LEVIED DILIPBHAI H.PAEL 91,933 SWAPNIL M.PATEL 1,74,979 PINALKUMAR M.PATEL 1,75,295 ANANDIBEN M.PATEL 4,55,878 PADMABEN V.PATEL 6,49,069 NITINKUMAR V.PATEL 5,79,597 IT(SS)A NOS.448,449 & 450 /AHD/2012 ITO VS.SMT.ANANDIBEN M.PATEL/ SMT.PADMABEN V.PATEL & NITIN VADILAL PATEL RESPECTI VELY ASST.YEAR 2006-07 - 5 - THE AO CAN TAKE ANY ACTION WITH RESPECT TO PENALTY, ONLY AFTER APPELLATE ORDERS ARE PASSED IN CONSEQUENCE OF HONBLE ITAT OR DER DATED 7.6.2012. AS QUANTUM APPEAL ORDER DOES NOT SURVIVE PENALTIES IMPOSED ON THE BASIS OF THE SAME ALSO DO NOT SURVIVE AND HA VE THEREFORE BEEN DIRECTED TO BE DELETED. 4.1. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE HE REBY SET ASIDE THE ORDER OF THE LD.CIT(A) AND RESTORE THESE APPEALS TO THE FILE OF LD.CIT(A) FOR DECISION AFRESH IN ACCORDANCE WITH LAW. THUS, ALL THE THREE APPEALS OF THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES . 5. IN THE RESULT, ALL THE THREE APPEALS OF THE REVE NUE IN THE CASE(S) OF SMT.ANANDIBEN M.PATEL, SMT.PADMABEN V.PATEL AND SHRI NITIN VADILAL PATEL FOR AY 2006-07 ARE ALLOWED FOR STATIS TICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON THURSDAY, THE 27 TH DAY OF AUGUST, 2015 AT AHMEDABAD. SD/- SD/- ( ) ( ) ( ANIL CHATURVEDI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 27/ 08 /2015 ..., .../ T.C. NAIR, SR. PS IT(SS)A NOS.448,449 & 450 /AHD/2012 ITO VS.SMT.ANANDIBEN M.PATEL/ SMT.PADMABEN V.PATEL & NITIN VADILAL PATEL RESPECTI VELY ASST.YEAR 2006-07 - 6 - !'#'$ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT. 3. 01023 4 / CONCERNED CIT 4. 4 ( ) / THE CIT(A)-I, AHMEDABAD 5. 5 6!23 , 23( , 1 / DR, ITAT, AHMEDABAD 6. 689:$ / GUARD FILE. / BY ORDER, '5! //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 19.8.15(DICTATION-PAD 4+ PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ..20.8.15 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.27.8.15 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 27.8.15 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER