The ACIT, Circle-6, Ahmedabad V. Shri Jagdish Prasad S.Gurjar, Ahmedabad

ITSSA 636/AHD/2011

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 0763 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 26 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 25-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 22-06-2015
• Assessment Year: misc
• Appeal Filed On: 29-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T P KRISHNA KUMAR
• Assessee Lawyers: NITIN M PATHAK
• Keywords: Document seized

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND S.S. GODARA JUDICIAL MEMBER I.T.(SS)A. NO. 636/AHD/201 1 (BLOCK PEROD 1-4-1996 TO 24-7-200 3) THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-6, AHMEDABAD. PAN ABFPG 3262 Q VS SHRI JAGDISHPRASAD S. GURJAR, 69, NIGAM SOCIETY, VATVA, AHMEDABAD-382445 (APPELLANT) (RESPONDENT) BY REVENUE SHRI T.P. KRISHNAKUMAR, SR.D.R. BY ASSESSEE. SHRI NITIN M. PATHAK, A.R. / DATE OF HEARING : 22-06-2015 / DATE OF PRONOUNCEMENT: 25/06/2015 / O R D E R PER ANIL CHATURVEDI ACCOUNTANT MEMBER: THIS APPEAL IS FILED BY THE REVENUE AGAINST THE OR DER OF CIT (A)- XI, AHMEDABAD DATED 21-9-2011 FOR THE BLOCK PERIOD 1-4-1996 TO 24-7- 2003. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI AL ON RECORD ARE AS UNDER. IT (SS)A NO636/AHD/2011 BLOCK PERIOD 1-4-96 TO 24-7-2003. 2 3. IN THIS CASE, ENFORCEMENT DIRECTORATE CARRIED OU T A SEARCH ACTION U/S. 37(3) OF THE FEMA ACT, 1999 R.W.S. 132(1) OF T HE I.T. ACT ON THE LUGGAGE VAN OF ASHRAM EXPRESS ON 9-7-2001 WHICH RES ULTED IN THE SEIZURE OF DOCUMENTS AND VALUABLES LIKE CURRENCY, G OLD BISCUITS, SILVER BARS, DIAMONDS AND JEWELLERY AGGREGATING RS.3,34,89 ,705/-. THEREAFTER PROCEEDINGS U/S. 158BC WERE INITIATED IN THE CASE O F THE ASSESSEE AND THEREAFTER ORDER WAS PASSED U/S. 158BC R.W.S. 143(3 ) ON 30-7-2004 WHEREIN THE UNDISCLOSED ASSETS AND CASH AMOUNTING T O RS.3,34,89,705/- WAS TAXED IN THE HANDS OF THE ASSESSEE ON PROTECTIV E BASIS. ON THE AFORESAID ADDITION MADE A.O. VIDE ORDER DATED 26-2- 2010 LEVIED PENALTY OF RS.2,10,98,514/- U/S. 158BFA (2) OF THE ACT. AGG RIEVED BY THE PENALTY ORDER OF A.O. THE ASSESSEE CARRIED THE MATT ER BEFORE THE CIT (A) WHO VIDE ORDER DATED 21-9-2011 DECIDED THE APPEAL I N FAVOUR OF THE ASSESSEE BY DELETING THE PENALTY. AGGRIEVED BY THE AFORESAID ORDER OF CIT (A), THE REVENUE IS NOW IN APPEAL BEFORE US AND HAS RAISED FOLLOWING EFFECTIVE GROUND. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) AS E RRED IN LAW AND ON FACTS IN DELETING THE PENALTY OF RS.2,10 ,98,514/- LEVIED U/S. 158BFA(2) OF THE I.T. ACT. 4. BEFORE US THE LD. D.R. SUPPORTED THE ORDER OF A. O. ON THE OTHER HAND THE LD. A.R. REITERATED THE SUBMISSIONS MADE B EFORE THE A.O. AND CIT (A) AND FURTHER SUBMITTED THAT SINCE THE ASSESS MENT IN THE HANDS OF THE ASSESSEE WAS MADE ON PROTECTIVE BASIS, PENALTY U/S. 158BFA (2) CANNOT BE LEVIED ON THE ADDITIONS MADE ON PROTECTIV E BASIS. HE THUS SUPPORTED THE ORDER OF CIT (A). 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS AN UNDISPUTED FACTS THA T THE ADDITION IN THE HANDS OF THE ASSESSEE HAS BEEN MADE ON PROTECTIVE B ASIS ON WHICH THE IT (SS)A NO636/AHD/2011 BLOCK PERIOD 1-4-96 TO 24-7-2003. 3 A.O. HAS LEVIED PENALTY U/S. 158BFA (2). WE FIND T HAT CIT (A) WHILE RELYING ON THE VARIOUS CASE-LAWS CITED IN HIS ORDER HAS NOTED THAT PENALTY CANNOT BE LEVIED ON THE BASIS OF PROTECTIVE ASSESSMENT AND ACCORDINGLY DELETED THE PENALTY. BEFORE US THE REVE NUE HAS NOT BROUGHT ANY CONTRARY BINDING DECISION IN ITS SUPPORT, NOR C OULD POINT OUT ANY MISTAKE IN THE ORDER OF THE CIT (A). IN VIEW OF TH E AFORESAID WE FIND NO SUBSTANCE IN THIS GROUND OF THE REVENUE AND THE SAM E IS DISMISSED. 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE COURT ON THURSDAY, THE 25 TH /06/2015 AT AHMEDABAD. SD/- SD/- (S.S. GODARA) JUDICIAL MEMBER (ANIL CATURVEDI) ACCOUNTANT MEMBER AHMEDABAD. DATED 25/ 6 /2015 PATKI !'#$ %&#' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! / CONCERNED CIT 4. ! () / THE CIT(A)XI , AHMEDABAD 5. $%& '', , )*++ / DR, ITAT, AHMEDABAD 6. &,- . / GUARD FILE. () * +(, / BY ORDER, -$/+.(/ $012(, ( DY./ASSTT.REGISTRAR) /, %$2'3/ %45,6, %.8(9( / ITAT, AHMEDABAD IT (SS)A NO636/AHD/2011 BLOCK PERIOD 1-4-96 TO 24-7-2003. 4 1. DATE OF DICTATION- 23-6-2015 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 23-6-2015. 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P .S./P.S. 23-6-2015 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT : 25-6-2015 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK : 25 -6-2015 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 8. DATE OF DESPATCH OF THE ORDER