Shri Raj Bholabhai Patel, Ahmedabad V. The ACIT.,Cent.Circle-1(4), Ahmedabad

ITSSA 539/AHD/2012

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 8754 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 5 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 08-02-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 04-02-2013
• Assessment Year: 2001-2002
• Appeal Filed On: 02-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PTITESH SHAH SHRI D K SINGH

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD , .. , '# ' $ BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI T.R.MEENA, ACCOUNTANT MEMBER APPEAL(S) BY SL.NO(S) IT(SS)A NO(S) ASSESSMENT YEAR(S) APPELLANT(S) RESPONDENT(S) 1. 539/AHD/2012 2001-02 RAJ BHOLABHAI PATEL 119 C, SUNRISE PARK OPP.DRIVE-IN- CINEMA NEAR HIMALAYA MALL BODAKDEV AHMEDABAD PAN: AAYPP 0206D ASST.CIT CCC-1(4) AHMEDABAD 2 540/AHD/2012 2002-03 -DO- -DO- 3 541/AHD/2012 2003-04 -DO- -DO- 4 542/AHD/2012 2004-05 -DO- -DO- 5 543/AHD/2012 2005-06 -DO- -DO- ASSESSEE BY : SHRI PTITESH SHAH REVENUE BY : SHRI D.K.SINGH, SR. D.R. / DATE OF HEARING : 04/02/2013 / DATE OF PRONOUNCEMENT : 08/2/2013 / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : ALL THESE APPEALS HAVE BEEN FILED BY THE ASSESSEE ARISING FROM A CONSOLIDATED ORDER OF CIT(A)-I, AHMEDABAD DATED 16 /07/2012. IN IDENTICAL MANNER, THE ASSESSEE HAS CHALLENGED THE CONFIRMATION OF PENALTY. IT(SS)A NOS.539 TO 542/AHD/2012 RAJ BHOLABHAI PATEL VS. ASST.CIT ASST.YEARS - 2001-02 TO 2005-06 - 2 - 2. AT THE OUTSET, WE HAVE BEEN INFORMED THAT IN A C OMBINED ORDER PASSED BY ITAT C BENCH AHMEDABAD DATED 03/08/2012 TITLED AS PATEL AVENUE CO-OPERATIVE HOUSING SOCIETY LTD. VS. ACIT [ IN IT(SS)A NOS.25 TO 29/AHD/2010 AYS 2001-02 TO 2005-06] AND TITLED AS RAJ BHOLABHAI PATEL VS. ACIT [IN IT(SS)A NOS.1999 TO 203/AHD/2009 AYS 2001-02 TO 2005-06] VIDE ORDER DATED 03/08/2012, THE ENTIRE IS SUES HAVE BEEN RESTORED BACK TO THE FILE OF CIT(A) VIDE PARAGRAPH NO.9, REPRODUCED BELOW:- 9. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY PE RUSED THE MATERIALS ON RECORD. BOTH THE ASSESSEES VIZ. PATEL AVENUE CO- OP.HOUSING SOCIETY LTD. AND SHRI RAJ BHOLABHAI PATE L HAD NOT COOPERATED BEFORE THE REVENUE ON EITHER OCCASION TO DETERMINE THEIR TAX LIABILITY. FROM THE SEIZED MATERIALS OBT AINED BY THE REVENUE IT IS EVIDENT THAT ONE OF THE PARTIES I.E. ASSESSEE OR SHRI RAJ BHOLABHAI PATEL HAVE TO BE TAXED. HOWEVER, BOTH TH E ASSESSEES HAD ELUDED FROM THE EYES OF THE REVENUE DELIBERATEL Y IN ORDER TO FRUSTRATE THE REVENUE TO ASCERTAIN THEIR TAX LIABIL ITY. IT IS PERTINENT TO MENTION THAT THE LEARNED REPRESENTATIVES FOR BOT H THE ASSESSEES ARE SAME. WE ARE ALSO SURPRISED BY THE ARGUMENT OF THE LEARNED AR THAT IF THE BENCH DECIDES NOT TO TAX THE ABOVE STATED ADDITIONS IN THE HANDS OF FIFTEEN LANDOWNERS, THEN THE ADDITIONS MAY BE MADE IN THE HANDS OF M/S.PATEL AVENUE CO-OP. HOUSING SOCIETY LTD. ON SUBSTANTIVE BASIS AND DELETE THE AD DITIONS IN THE HANDS OF SHRI RAJ BHOLABHAI PATEL WITHOUT BRINGING BEFORE US ANY CONVINCING EVIDENCE OR MATERIALS FOR ARRIVING A T SUCH CONCLUSION. ON ONE HAND, THE TAX LIABILITY POINTS TOWARDS THE ASSESSEE VIZ. M/S.PATEL AVENUE CO-OP.HOUSING SOCIET Y LTD. WHICH IS A CO-OPERATIVE HOUSING SOCIETY INVOLVING MANY ME MBERS REPRESENTED BY ITS CHAIRMAN MR.BIPIN CHINUBHAI PATE L AND SECRETARY MR.HEMANT BASRAMBHAI PATEL AND ON THE OTH ER HAND, SHRI RAJ BHOLABHAI PATEL WHO APPEARS TO HAVE SUBSTA NTIAL INFLUENCE AND WON THE TRUST OF THE SOCIETY. THE LE ARNED AR ALSO VEHEMENTLY ARGUED THAT THE ACTUAL BENEFICIARIES OF THE TRANSACTIONS ARE THE FIFTEEN LANDOWNERS AND THESE ADDITIONS ARE TO BE MADE IN IT(SS)A NOS.539 TO 542/AHD/2012 RAJ BHOLABHAI PATEL VS. ASST.CIT ASST.YEARS - 2001-02 TO 2005-06 - 3 - THEIR HANDS. THE ASSESSEE M/S.PATEL AVENUE COOPERA TIVE HOUSING SOCIETY LTD. BEING A COOPERATIVE SOCIETY REGISTERED UNDER THE COMPANIES ACT HAVING MANY MEMBERS IS LEFT TO BE MAN AGED UNDER THE GUIDANCE AND CONTROL BY TWO INDIVIDUAL VIZ. THE CHAIRMAN AND THE SECRETARY OF THE COOPERATIVE HOUSING SOCIETY LT D. AND THEY SEEMS TO HAVE CLOSE NEXUS WITH SHRI RAJ BHOLABHAI P ATEL. IN THESE CIRCUMSTANCES, THE FACTS HAVE TO BE ANALYZED IN DET AIL IN ORDER TO IDENTIFY THE CORRECT ASSESSEE ON WHOM THE ADDITION HAS TO BE SUSTAINED. FROM THE CONDUCT OF THE ASSESSEE VIZ. P ATEL AVENUE COOPERATIVE HOUSING SOCIETY LTD. REPRESENTED BY ITS CHAIRMAN AND SECRETARY AND SHRI RAJ BHOLABHAI PATEL, IT IS A PPARENT THAT BOTH OF THEM HAVE NOT COOPERATED EITHER DURING THE ASSESSMENT STAGE OR BEFORE THE FIRST APPELLATE AUTHORITY. HOW EVER, NOW, THE LEARNED COUNSEL FOR THE ASSESSEE ASSURED BEFORE US THAT THE ASSESSEE AND THEIR COUNSELS SHALL COOPERATE WITH TH E REVENUE AND FURNISH THE REQUIRED MATERIALS TO ASSIST THE REVENU E IN ASSESSING THE ADDITION ON THE APPROPRIATE ASSESSEE AND, THEREFORE , THE MATTER MAY BE REMITTED BACK. KEEPING IN VIEW OF THIS SUBMISSION OF THE LEARNED AR, IN THE INTEREST OF JUSTICE WE REMIT BAC K THE ENTIRE MATTER TO THE FILE OF THE LEARNED CIT(A) WHO SHALL HEAR THE MATTER AFRESH AND PASS APPROPRIATE ORDER ON MERITS AFTER O BTAINING REMAND REPORT FROM THE LEARNED AO. THE LEARNED CIT (A) MAY ALSO SUMMON THE MEMBERS OF THE ASSESSEE TRUST IF RE QUIRED OR KEEP THEM INTIMATED OF THE PROCEEDINGS SO THAT THEY ARE NOT LEFT IN THE LURCH AND APPROPRIATE JUSTICE CAN BE DELIVERED, KEEPING IN VIEW OF THE FACT THAT IF THE ADDITIONS ARE SUSTAINE D IN THE HANDS OF THE ASSESSEE VIZ. PATEL AVENUE COOPERATIVE HOUSING SOCIETY LTD., THERE WOULD BE FINANCIAL IMPLICATIONS FOR THE MEMBE RS OF THE COOPERATIVE HOUSING SOCIETY OR THE DIRECTORS OF THE COOPERATIVE HOUSING SOCIETY. THE ASSESSEE TRUST REPRESENTED BY ITS CHAIRMAN AND SECRETARY ARE ALSO DIRECTED TO COOPERATE WITH T HE PROCEEDINGS OF THE REVENUE FOR SPEEDY DISPOSAL OF THE PROCEEDIN GS. IT IS ORDERED ACCORDINGLY. 10. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. IT(SS)A NOS.539 TO 542/AHD/2012 RAJ BHOLABHAI PATEL VS. ASST.CIT ASST.YEARS - 2001-02 TO 2005-06 - 4 - 3. ALTHOUGH LD.AR MR.PRITESH SHAH HAS ALTERNATIVELY PLEADED THAT THE PENALTY AT ALL SHOULD NOT HAVE BEEN LEVIED BECAUSE THE ASSESSMENT OF THE IMPUGNED INCOME IN THE HANDS OF THE ASSESSEE WAS ME RELY ON PROTECTIVE BASIS, THEREFORE, NO CONCEALMENT PENALTY IS LEVIABL E ON PROTECTIVE ADDITIONS. AT PRESENT, IN A SITUATION, WHEN THE Q UANTUM ADDITION HAS YET TO BE DECIDED AND THE ISSUE OF PROTECTIVE AND SUBST ANTIVE ASSESSMENT HAS YET TO BE ADJUDGED, THEREFORE IT IS NOT PROPER US A LSO IN THE INTEREST OF JUSTICE TO PROCEED WITH THESE PENALTIES LEVIED IN T HE YEARS UNDER CONSIDERATION. RATHER, IN THE INTEREST OF JUSTICE, THE ISSUE OF CONCEALMENT HAS TO BE DEALT WITH ALONG WITH THE QUANTUM ASSESSM ENT. WE, THEREFORE, CONSIDER IT PROPER TO RESTORE THESE GROUNDS BACK TO THE FILE OF LD.CIT(A) TO BE DECIDED ACCORDINGLY AS PER LAW. RESULTANTLY, GR OUNDS OF THE ASSESSEE FOR ALL THE YEARS UNDER APPEAL(S) MAY BE TREATED AS ALLOWED BUT FOR STATISTICAL PURPOSES. 4. IN THE RESULT, ALL THE APPEALS ARE TREATED AS AL LOWED FOR STATISTICAL PURPOSES ONLY. SD/- SD/- ( .. ) ( ) ( T.R. MEENA ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 8/ 2 /2013 .., . ../ T.C. NAIR, SR. PS IT(SS)A NOS.539 TO 542/AHD/2012 RAJ BHOLABHAI PATEL VS. ASST.CIT ASST.YEARS - 2001-02 TO 2005-06 - 5 - '& ' ()* +'*, / COPY OF THE ORDER FORWARDED TO : 1. '#$% / THE APPELLANT 2. &'$% / THE RESPONDENT. 3. ()(*+ , / CONCERNED CIT 4. , ('#) / THE CIT(A)-I, AHMEDABAD 5. /01 & *+, '# '*+, '2) / DR, ITAT, AHMEDABAD 6. 134 5 / GUARD FILE. '&- / BY ORDER, '/# & //TRUE COPY// ./ / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION DATED 5.2.13 (DICTATION-PAD 4 PAGES ATTACHED) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 6.2.13 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S8.2.13 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8.2.13 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER