Shri Kamlesh K.Sheth, Bhavnagar V. The ACIT., Circle-1, Bhavnagar

ITSSA 787/AHD/2010

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 0124 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 18 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 04-04-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 14-03-2014
• Assessment Year: misc
• Appeal Filed On: 16-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J P JHANGID
• Assessee Lawyers: URVASHI SHODHAN A R
• Keywords: Block assessment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH AHMEDABAD , , , , BEFORE SHRI MUKUL KR. SHRAWAT , JUDICIAL MEMBER AND , SHRI T.R. MEENA, ACCOUNTANT MEMBER .. , ! ! ! ! IT(SS)A NO. 787/AHD/2010 BLOCK PERIOD : 1/4/1989 TO 8/12/1999 SHRI KAMLESH K SHETH TRUPTI FLATS, KALANDIA, BHAVNAGAR V/S . ACIT, CIRCLE-1, BHAVNAGAR PAN NO. A AACM8009N (APPELLANT) .. (RESPONDENT) '# $ % / BY APPELLANT MS. URVASHI SHODHAN, A.R. &''# $ % /BY RESPONDENT SHRI J. P. JHANGID, SR. D.R. () $ /DATE OF HEARING 14.03.2014 *+, $ /DATE OF PRONOUNCEMENT 04.04.2014 O R D E R PER : SHRI T.R.MEENA, ACCOUNTANT MEMBER THIS IS AN APPEAL AT THE BEHEST OF ASSESSEE WHICH H AS EMANATED FROM THE ORDER OF CIT(A)-XX, AHMEDABAD, DATED 20.08.2010 FOR BLOCK PERIOD 01.04.1989 TO 08.12.1999 THE SOLE GROUND OF APPEAL IS AGAINST CONFIRMING THE PENALTY OF RS.54,40,280/- U/S. 158BFA(2). IT(SS)A NO. 787/AHD/2010, SHRI KAMLESH K SHETH VS. ACIT FOR BLOCK PERIOD 1/4/89 TO 8/12/99A.Y. 04- 05 PAGE 2 2. THE LD. A.O. OBSERVED THAT IN THIS CASE SEARCH A ND SEIZURE OPERATION WAS CARRIED OUT ON 07 & 08.12.1999. CERTAIN INCRIM INATING DOCUMENTS WERE FOUND AND SEIZED DURING THE COURSE OF SEARCH. THE BLOCK ASSESSMENT WAS COMPLETED BY THE A.O. WHICH WAS CHALLENGED BEFORE T HE CIT(A). THE CIT(A) HAS CONFIRMED THE ADDITION IN QUANTUM APPEAL. BEFO RE IMPOSING THE PENALTY U/S. 158BFA(2), THE LD. A.O. GAVE REASONABLE OPPORT UNITY OF BEING HEARD, BUT ASSESSEE DID NOT RESPOND TO THE NOTICE ISSUED BY TH E A.O. THUS, HE IMPOSED PENALTY U/S.158BFA ON THE BASIS OF FACTS AVAILABLE ON RECORD AT RS.54,40,282/- WHICH IS 100% ON TAX SOUGHT TO BE EVADED. 3. BEING AGGRIEVED BY THE ORDER OF THE A.O., THE AS SESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) WHO HAD ALLOWED THE APPEAL PARTIALLY AND THE LD. CIT(A) ALSO FOUND THE ASEESSEES ATTITUDE NON-COOPE RATIVE DURING THE APPEAL PROCEEDING. HE REQUESTED ONLY TO KEEP THE PENALTY PROCEEDING IN ABEYANCE TILL DISPOSAL OF ITAT ORDER, WHICH WAS NOT ACCEPTED BY HIM. IN ABSENCE OF ANY DETAILED REPLY WITH EVIDENCE, HE PASSED THE APPEAL ORDER AND ALLOWED THE PARTIAL RELIEF TO THE ASSESSEE. 4. NOW, THE ASSESSEEE IS BEFORE US. LD. COUNSEL FO R THE APPELLANT CONTENDED THAT QUANTUM APPEAL FOR THE BLOCK PERIOD HAS BEEN SET ASIDE TO THE CIT(A) BY THE HONBLE C BENCH IN IT(SS)A NO. 257/ AHD/2005 FOR BLOCK PERIOD FROM 01.04.1989 TO 08.12.1999. THEREFORE, T HIS MATTER SHOULD BE SENT BACK TO THE A.O. TO DECIDE THE CASE AFRESH AFTER FI NALIZING THE APPEAL IT(SS)A NO. 787/AHD/2010, SHRI KAMLESH K SHETH VS. ACIT FOR BLOCK PERIOD 1/4/89 TO 8/12/99A.Y. 04- 05 PAGE 3 PROCEEDING IN QUANTUM ADDITION. AT THE OUTSET, LD. SR. D.R. HAS FAIRLY ACCEPTED THIS PROPOSAL AS MATTER IN QUANTUM HAS ALREADY BEEN SET ASIDE TO THE CIT(A). 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE CO-ORDINATE C BENCH VIDE ORDER DATE D 15.10.2012 HELD AS UNDER: 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT ON PAGE NO.-3 OF THIS ORDER, LD. CIT(A) HAS REPRODUCED THE GROUNDS RAISED BY THE ASSESSEE BEFORE HIM AND ALL THESE GROUNDS ARE ON TE CHNICAL ASPECTS. AFTER REPRODUCING THE GROUNDS, LD. CIT{A) HAS NOTED ON PA GES 3 AND 4 OF HIS ORDER THAT IN ADDITION TO MEMORANDUM OF APPEAL, THE ASSESSEE HAS ALSO RAISED OBJECTIONS REGARDING VARIOUS ADDITIONS I.E. RS.5,07,334/-, RS.3,59,802/-, RS.80,07,000/-AND RS.1.93 LAKH TOTAL RS.90,67,136/-. LD. CIT(A) HAS ALSO NOTED VARIOUS ARGUMENTS RAISED BY T HE ASSESSEE ON MERIT OF THESE ADDITIONS BUT WHILE DECIDING THE APPEAL, L D. CIT(A) HAS DECIDED ONLY THE TECHNICAL OBJECTIONS RAISED BY THE ASSESSE E BEFORE HIM AS PER GROUND NO. 1 TO 6 AND HE HAD NOT DECIDED VARIOUS IS SUES ON MERIT OF VARIOUS ADDITIONS. HENCE, WE FEEL THAT THIS MATTER SHOULD GO BACK TO THE FILE OF LD. CIT(A) FOR DECISION ON MERITS OF VARIOUS ADD ITIONS MADE BY THE ASSESSING OFFICER. HENCE, WE SET ASIDE THE ORDER OF LD. CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE FOR DECISION ON MERIT O F VARIOUS ADDITIONS MADE BY THE AO TOTALING RS.90,67,136/-. LD. CIT(A) SHOUL D PASS NECESSARY ORDER AS PER LAW AFTER PROVIDING REASONABLE OPPORTU NITY OF BEING HEARD TO BOTH SIDES. THESE GROUNDS OF ASSESSEE'S APPEAL ARE ALLOWED FOR STATISTICAL PURPOSES. AS CO-ORDINATE BENCH SET ASIDE THE ISSUE TO THE CIT (A) TO DECIDE THE CASE ON MERIT ON VARIOUS ADDITION MADE BY THE A.O., WHEN MA TTER HAS BEEN SET ASIDE IN QUANTUM ADDITION, THE PENALTY ORDER IS ALSO REQ UIRED TO BE ADJUDICATED ON IT(SS)A NO. 787/AHD/2010, SHRI KAMLESH K SHETH VS. ACIT FOR BLOCK PERIOD 1/4/89 TO 8/12/99A.Y. 04- 05 PAGE 4 THE BASIS OF OUT COME OF THE SETTING ASIDE PROCEEDI NG BY THE A.O. ACCORDINGLY, WE SET ASIDE THE PENALTY ORDER PASSED BY THE CIT(A) TO THE A.O. TO BE DECIDED AFRESH AS PER LAW AS DIRECTED HEREINABOVE. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. THIS ORDER PRONOUNCED IN OPEN COURT ON 04/04/2014 SD/- SD/- ( MUKUL KR. SHRAWAT) (T.R. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER TRUE COPY S.K.SINHA - - - - $ $$ $ &. &. &. &. /., /., /., /., / COPY OF ORDER FORWARDED TO:- 1. '# / APPELLANT 2. &''# / RESPONDENT 3. 33 4 / CONCERNED CIT 4. 4- / CIT (A) 5. .89 &( , , / DR, ITAT, AHMEDABAD 6. 9;< => / GUARD FILE. BY ORDER/ - , ?/ 3A , !