The ACIT, Circle-7, Ahmedabad V. Shri K.P.M. Nair, Ahmedabad

ITSSA 52/AHD/2008

• Counselvise Citation: [2010] 124 COUNSELVISE.COM (IT) 9083 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 2 month(s) 18 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 16-08-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 16-08-2010
• Assessment Year: misc
• Appeal Filed On: 29-05-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANIL KUMARD R
• Assessee Lawyers: PF JAIN
• Keywords: Opportunity of being heard; Block assessment
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A AHMEDABAD BEFORE SHRI N.S.SAINI, ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH, JUDICIAL MEMBER IT(SS)A NO.52/AHD/2008 BLOCK PERIOD: 1.4.88 TO 21.10.99 DATE OF HEARING:16.8.10 DRAFTED:17.8.10 ACIT, CIRCLE-7, AHMEDABAD V/S . SHRI K.P.M.NAIR, PLOT NO.5, 3 RD FLOOR, DEVERSHEE, ALKAPARTMENT, B/H. BPL HOUSE, DRIVE IN ROAD, AHMEDABAD PAN NO.ADGPN7146R (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI ANIL KUMAR,DR RESPONDENT BY:- SHRI P.F.JAIN, AR O R D E R PER MAHAVIR SINGH JUDICIAL MEMBER:- THIS APPEAL BY REVENUE IS ARISING OUT OF THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-XI, AHMEDABAD IN APPEAL NO. CI T(A)-XI/379/07-08 DATED 24- 03-2008. THE BLOCK ASSESSMENT WAS FRAMED BY DCIT, C ENTRAL CIRCLE-1, AHMEDABAD U/S.158BC OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 31-10-2001 FOR BLOCK PERIOD FROM 01-04- 1988 TO 21-10-1999. 2. THE ONLY ISSUE IN THIS APPEAL OF REVENUE IS AGAI NST THE ORDER OF CIT(A) DELETING THE LEVY OF PENALTY U/S.158BFA(2) OF THE A CT. FOR THIS, REVENUE HAS RAISED THE FOLLOWING EFFECTIVE GROUND NO.1 :- 1. THE LD. COMMISSIONER OF INCOME TAX (A)-XI, AHME DABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE PENALTY LEVIED OF RS.5 ,78,674/- UNDER SECTION 158BFA(2) OF THE INCOME TAX ACT, 1961. 3. THE BRIEF FACTS ARE THAT SEARCH OPERATION U/S.13 2 OF THE ACT WAS CARRIED OUT ON 21-10-1999 IN ASSESSEES PREMISES. THE BLOCK ASSESS MENT WAS COMPLETED BY THE ASSESSING OFFICER U/S.158BC OF THE ACT VIDE ORDER D ATED 31-10-2001 FOR THE BLOCK PERIOD FROM 01-04-1988 TO 21-10-1999 MAKING CERTAIN ADDITIONS AND THE SUBJECT- IT(SS)A NO.52/AHD/2008 B.P. 8.9.90 TO 21.10.99 ACIT CIR-2, ABD V. SH. K.P.M.NAIR PAGE 2 MATTER UNDER DISPUTE, I.E. ADDITION ON ACCOUNT OF SALARY OF OM TRAVELS AMOUNTING TO RS.9.60 LAKHS, ON WHICH PENALTY U/S.271(1) OF THE ACT WAS LEVIED. THE ADDITION WAS CONFIRMED UP TO TRIBUNAL. THE AO HAS RECORDED THE F INDINGS OF THE TRIBUNAL OF QUANTUM ORDER DATED 28-02-2007 IN IT(SS)A NO.71/AHD/2003 AND CO NO.146/AHD/2003 , WHEREIN THE TRIBUNAL HAS CONFIRMED THE ADDITION B Y GIVING FOLLOWING FINDINGS IN PARA-11 :- 11. WE HAVE HEARD THE PARTIES AND CONSIDERED THE R IVAL SUBMISSIONS. IN VIEW OF THE CATEGORICAL STATEMENT OF THE ASSESSEES WIFE IN HER STATEMENT THAT HER BUSINESS AFFAIRS WERE LOOKED AFTER BY HER HUSBAND I .E. THE ASSESSEE AND SHE WAS PAYING REMUNERATION OF RS.8,000/- PER MONTH, IT CANNOT BE DENIED THAT THE ASSESSEE WAS RECEIVING INCOME TO THAT EXTENT AND SI NCE THIS HAS NOT BEEN RETRACTED EITHER BY THE WIFE OF THE ASSESSEE OR THE ASSESSEE, THE ADDITION MADE BY THE ASSESSING OFFICER BY ADOPTING THE SALA RY @ RS.8,000 PER MONTH IS TO BE HELD. NO INTERFERENCE IN THE ORDER OF THE REVENUE AUTHORITIES ON THIS IS CALLED FOR. 4. WE FIND FROM THE PENALTY ORDER THAT THE ASSESSIN G OFFICER HAS NOT ALLOWED REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE AS THE ASSESSEES COUNSEL SUBMITTED BEFORE AO THAT THE MATTER IS CONTESTED BE FORE HONBLE JURISDICTIONAL HIGH COURT, HENCE PENALTY PROCEEDINGS BE KEPT IN ABEYANC E BUT THE AO WITHOUT PROVIDING ANOTHER OPPORTUNITY TO THE ASSESSEE DECIDED AND LEV IED THE PENALTY. WE FIND FROM THE ORDER OF CIT(A) THAT THE ORDER OF CIT(A) IS NON-SPE AKING AND THERE IS NO DISCUSSION AS TO HOW AND WHY THE PENALTY IS NOT LEVIABLE. IN V IEW OF THESE FACTS, WE ARE OF THE VIEW THAT THE PENALTY CANNOT BE DECIDED AT THIS STA GE IN THE ABSENCE OF FULL FACTS AND ACCORDINGLY THE SAME IS SET ASIDE TO THE FILE OF AS SESSING OFFICER FOR PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO ASSESSEE A ND DECIDE THE PENALTY BY A SPEAKING ORDER. NEEDLESS TO SAY WE DO NOT SAY ANYT HING ON MERITS OF THE MATTER. ACCORDINGLY, THIS ISSUE OF THE REVENUES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 4. IN THE RESULT, REVENUES APPEAL IS ALLOWED FOR STAT ISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 16/08/2010 SD/- SD/- (N.S.SAINI) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD, DATED : 16/08/2010 IT(SS)A NO.52/AHD/2008 B.P. 8.9.90 TO 21.10.99 ACIT CIR-2, ABD V. SH. K.P.M.NAIR PAGE 3 *DKP COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)-XI, AHMEDABAD 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD