Shri Lalitkumar M.Patel, Baroda V. The ACIT.,Cent.Circle-1, Baroda

ITSSA 54/AHD/2008

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 7997 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 7 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 02-11-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 02-11-2011
• Assessment Year: misc
• Appeal Filed On: 25-06-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ARTIBEN N SHAH
• Keywords: Block assessment
• Section: 15

Judgement Text

- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B AHMEDABAD BEFORE S/SHRI D.K.TYAGI, JM AND A. MOHAN ALANKAMON Y, AM. SHRI LALIT M. PATEL, 4-ATMAJYOTI NAGAR SOCIETY, ELLORA PARK, BARODA. VS. ASSTT. CIT, CCEN.CIR-1, BARODA. (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SMT. ARTIBEN N. SHAH, AR RESPONDENT BY:- SHRI SAMIR TEKRIWAL, SR.DR DATE OF HEARING : 2/11/2011 DATE OF PRONOUNCEMENT : 2/11/2011 O R D E R PER D. K. TYAGI, JUDICIAL MEMBER . THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. CIT(A) DATED 28.02.2008 RAISING FOLLOWING GROUNDS:- (1) THE LD. CIT(A)-IV, AHMEDABAD HAS ERRED IN LAW AND O N FACTS OF THE CASE BY CONFIRMING THE PENALTY OF RS.1,18,03,82 6/- LEVIED U/S 158 BFA(2) OF THE INCOME-TAX ACT, 1961 BY THE A O. (2) APPELLANT PRAYS TO DELETE THE PENALTY OF RS.1,18,03 ,826/- LEVIED U/S 158BFA(2) OF THE IT ACT, 1961. IT(SS)A NO.54/AHD/2008 BLOCK PERIOD 1/4/1995 TO 19/12/2001 IT(SS)A NO. 54/AHD/2008 BLOCK PERIOD 1.4.1995 TO 19.12.2001 2 2. THE BRIEF FACTS OF THE CASE ARE THAT A SEARCH AN D SEIZURE OPERATION IN THE CASE OF JAYRAJ GROUP OF CASE WAS CARRIED OUT U/ S 132(1) OF THE IT ACT ON 19/12/2001. CERTAIN INCRIMINATING DOCUMENTS PERT AINING TO THE ASSESSEE WERE SEIZED. THEREFORE, A NOTICE U/S 158BD WAS ISSUED TO THE ASSESSEE FOR THE BLOCK PERIOD 1/4/1995 TO 19/12/200 1. ASSESSMENT U/S 158BD R.W.S. 158BC (C) WAS COMPLETED ON 31/01/2006 WHEREIN FOLLOWING ADDITIONS WERE MADE AND PENALTY U/S 158BFA(2) WAS I NITIATED :- (1) ADDITION ON ACCOUNT OF UNDISCLOSED LTCG OF RS.1,52, 04,590/- (2) ADDITION ON ACCOUNT OF UNDISCLOSED MONEY PLACED WIT H COURT RECEIVER OF RS.30 LACS. (3) ADDITION ON UNDISCLOSED CASH PAID TO SHRI ROHIT SHA H OF RS.5 LACS. A NOTICE U/S 158BFA WAS ISSUED TO THE ASSESSEE ASKI NG HIM TO GIVE REASONS AS TO WHY PENALTY ON THE ABOVE ISSUES SHOUL D NOT BE IMPOSED ON HIM. HOWEVER, NO REPLY WAS RECEIVED, THEREFORE, THE AO CONCLUDED THAT THE ASSESSEE HAS NOTHING TO SAY IN HIS DEFENCE AND, THEREFORE, DELIBERATE INTENTION OF THE ASSESSEE TO EVADE TAX BY NOT DISCL OSING HIS VARIOUS INCOMES AND THUS HAS CONCEALED PARTICULARS OF INCOM E WITHIN THE MEANING OF SECTION 158BFA(2). A MINIMUM PENALTY OF 100% OF TAX, I.E. RS.1,18,03,826/- WAS IMPOSED ON THE ASSESSEE U/S 15 8BFA(2). THIS ACTION OF THE AO WAS CONFIRMED BY LD. CIT(A). IT(SS)A NO. 54/AHD/2008 BLOCK PERIOD 1.4.1995 TO 19.12.2001 3 AGGRIEVED BY THE ORDERS OF LOWER AUTHORITIES, NOW T HE ASSESSEE IS IN APPEAL BEFORE US. 3. AT THE TIME OF HEARING AT THE OUTSET THE LD. COU NSEL OF THE ASSESSEE SUBMITTED THAT IN QUANTUM APPEAL HONBLE TRIBUNAL V IDE ITS ORDER IN IT(SS)A NO.61/AHD/2007 FOR BLOCK PERIOD 1.4.95 TO 1 9.12.2001 DATED 30.9.2011 HAS QUASHED THE BLOCK ASSESSMENT. AS THE BASIS ON WHICH THIS PENALTY UNDER APPEAL WAS IMPOSED DOES NOT EXIST, TH E PENALTY CANNOT SURVIVE. SHE, THEREFORE, PLEADED THAT THE PENALTY I MPOSED BY THE AO AND CONFIRMED BY THE LD. CIT(A) MAY KINDLY BE DELETED. 4. THE LD. DR DID NOT CONTROVERT THE SUBMISSIONS OF THE LD. COUNSEL OF THE ASSESSEE. 5. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND GOIN G THROUGH THE MATERIAL PLACED ON RECORD, WE FIND THAT THE TRIBUNA L VIDE ITS ORDER IN IT(SS)A NO. 61/AHD/2007 FOR BLOCK PERIOD 1.4.95 TO 19.12.2001 DATED 30.9.2011 HAS QUASHED THE BLOCK ASSESSMENT. THEREFO RE, THE PENALTY CANNOT SURVIVE IN THIS CASE AS THE BASIS ON WHICH T HE PENALTY WAS LEVIED HAS BEEN QUASHED. ACCORDINGLY, THE PENALTY LEVIED A ND CONFIRMED BY THE LOWER AUTHORITIES IS DIRECTED TO BE DELETED. THE GR OUND RAISED BY THE ASSESSEE IS ALLOWED. IT(SS)A NO. 54/AHD/2008 BLOCK PERIOD 1.4.1995 TO 19.12.2001 4 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER WAS PRONOUNCED IN OPEN COURT ON 2/11/2001 SD/- SD/- (A. MOHAN ALANKAMONY) (D.K. TYAGI) ACCOUNTANT MEMBER JUDICI AL MEMBER AHMEDABAD, MAHATA/- COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD .DATE OF DICTATION 2/11/2010. 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING MEMBER.OTHER MEMBER 3/11/2011 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 DICTATING MEMBER FOR PRONOUNCEMENT.. 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..