Shri Jinendra S. Jain, Ahmedabad V. The DCIT, Circle 9, Ahmedabad

MA 105/AHD/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1573 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 17-01-2014
• Assessment Year: misc
• Appeal Filed On: 27-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P BATHEJA
• Assessee Lawyers: S N SOPARKAR
• Keywords: Block assessment

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C BENCH, AHMEDABAD .., ! ! ! ! ' #$, BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER MA NO.105/AHD/2013 BLOCK PERIOD 1990-91 TO 1999-20 00 UPTO 22.6.1999 ( IN (SS) !./ IN I.T(SS).A. NO.60/AHD/2010) SHRI JINENDRA S.JAIN 78, DHANLAXMI SOCIETY ODHAV, AHMEDABAD (ORIGINAL RESPONDENT) / VS. THE DCIT CIRCLE-9 AHMEDABAD (ORIGINAL APPELLANT) & !./'( !./ PAN/GIR NO. : AEFPJ 0890 N ( APPLICANT ) .. ( )*&+ / RESPONDENT ) APPLICANT BY : SHRI S.N. SOPARKAR, A.R. REVENUE BY : SHRI O.P. BATHEJA, SR.D.R. ' , - $. / / / / DATE OF HEARING : 17/1/2014 /01 - $. / DATE OF PRONOUNCEMENT : 21/02/2014 2 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THE ASSESSEE HAS FILED THE MISCELLANEOUS APPLICATI ON DATED 27/05/2013 AGAINST THE ORDER OF THIS TRIBUNAL (ITAT C BENCH AHMEDABAD) PASSED IN IT(SS)A NO.60/AHD/2010, DATED 26/04/2013. 2. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT T HE MATTER HAS BEEN RESTORED BACK TO THE ASSESSING OFFICER BY THE HONB LE TRIBUNAL ON THE BASIS THAT IT IS NOT CLEAR AS TO WHETHER THESE THREE TRIB UNAL ORDERS ARE IN RESPECT OF THE SAME SEARCH AND THE SAME ASSESSMENT OR THERE ARE TH REE SEARCHES AND THREE BLOCK ASSESSMENTS BECAUSE IF THERE IS ONE SEARCH, T HEN THERE SHOULD BE ONLY ONE BLOCK ASSESSMENT AND ONLY ONE TRIBUNAL ORDER. H E SUBMITTED THAT THE HONBLE TRIBUNAL DIRECTED THE AO TO EXAMINE THE CLA IM OF THE ASSESSEE AS TO MA NO.105/AHD/2013(BY ASSESSEE) (IN IT(SS)A NO.60/AHD/2010) DCIT VS. SHRI JITENDRA S.JAIN BLOCK PERIOD : 1990-91 TO 1999-2000 UPTO 22.6.1999 - 2 - WHETHER THE ASSESSED INCOME FOR WHICH THE PENALTY H AS BEEN IMPOSED REQUIRES GIVING EFFECT TO THE THREE TRIBUNAL ORDER OR ONE TR IBUNAL ORDER OR TWO TRIBUNAL ORDERS AND ACCORDINGLY HE SHOULD GIVE EFFECT TO ALL THE TRIBUNAL ORDERS FOR WHICH EFFECT IS REQUIRED TO BE GIVEN TO DETERMINE T HE FINAL INCOME OF THE ASSESSEE AD THEN DETERMINE THE PENALTY FOR THE FINA L INCOME SO DETERMINED AS PER SECTION 158BFA(2) OF THE I.T.ACT. THE LD.COUNS EL FOR THE ASSESSEE SUBMITTED THAT WHILE MAKING THESE OBSERVATIONS, CRU CIAL FACTS PUT BEFORE THIS HONBLE TRIBUNAL HAVE NOT BEEN CONSIDERED WITH THE RESULT THAT THE CONCLUSION DRAWN BY THE HONBLE TRIBUNAL IS NOT BASED UPON COR RECT FACTUAL POSITION. HE SUBMITTED THAT THE HONBLE TRIBUNAL HAS REFERRED TO THE PAPER-BOOK, WHEREIN THE TRIBUNALS ORDER DATED 12/02/2008 AND 19/12/200 8 HAVE BEEN COMPILED AND THE AOS ORDER DATED 21.4.2009 GIVING EFFECT TO THE TRIBUNALS ORDER DATED 21.11.2008 IS ALSO COMPILED. IT IS SUBMITTED THA T ALL THESE THREE ORDERS OF THE HONBLE TRIBUNAL PERTAIN TO ONLY ONE BLOCK PERIOD, I.E. 1990-91 TO 1999-2000 AND UPTO 22.6.1999. HE SUBMITTED THAT THE AO HAD GIVEN EFFECT TO THIS ORDER OF THE HONBLE TRIBUNAL VIDE THE APPEAL EFFECT ORDE R DATED 21/04/2009. HE DREW OUR ATTENTION TO PAGE NO.26 OF THE PAPER-BOOK. HE SUBMITTED THAT AS PER THIS APPEAL GIVING EFFECT THE REVISED TOTAL INCOME WAS RS.2,15,59,930/-. HE SUBMITTED THAT FROM THE DOCUMENTS ENCLOSED, IT IS C LEAR THAT ALL THE THREE ORDERS OF THE HONBLE TRIBUNAL PERTAINED TO ONLY ONE BLOCK PERIOD AND IF ALL THESE THREE ORDERS ARE CONSIDERED, IT WOULD BE SEEN THAT THE ASSESSED INCOME STANDS REDUCED TO THE RETURNED INCOME ONLY AND, THEREFORE, NO PENALTY IS LEVIABLE. 3. ON THE CONTRARY, LD.SR.DR OPPOSED THE APPLICATIO N AND NO ERROR IS POINTED OUT FROM THE RECORDS AND SUBMITTED THAT IT WOULD TANTAMOUNT TO REVIEW THE ORDER. MA NO.105/AHD/2013(BY ASSESSEE) (IN IT(SS)A NO.60/AHD/2010) DCIT VS. SHRI JITENDRA S.JAIN BLOCK PERIOD : 1990-91 TO 1999-2000 UPTO 22.6.1999 - 3 - 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE HONBLE TRIBUNAL HAD R ESTORED THE MATTER TO THE FILE OF AO FOR A FRESH DECISION ABOUT THE IMPOSITION OF PENALTY ON THE BASIS THAT IT IS NOT CLEAR AS TO WHETHER THESE THREE TRIBUNAL ORDERS ARE IN RESPECT OF THE SAME SEARCH AND THE SAME ASSESSMENT OR THERE ARE THREE S EARCHES AND THREE BLOCK ASSESSMENTS BECAUSE IF THERE IS ONE SEARCH, THEN TH ERE SHOULD BE ONLY ONE BLOCK ASSESSMENT AND ONLY ONE TRIBUNAL ORDER. IN VIEW OF THE SUBMISSIONS MADE BY THE LD.COUNSEL FOR THE ASSESSEE AND LOOKING TO THE ORDER OF THE AO GIVING APPEAL EFFECT ENCLOSED AT PAGE NO.26 OF THE PAPER-BOOK, WE ARE OF THE VIEW THAT THERE IS A MISTAKE APPARENT ON RECORD WHICH IS TO BE RECT IFIED. THEREFORE, WE RECALL OUR ORDER DATED 26/04/2013 PASSED IN IT(SS)A NO.60/ AHD/2010 AND FIX THE APPEAL FOR HEARING FOR A LIMITED PURPOSE TO VERIFY THE CONTENTION OF THE LD.COUNSEL FOR THE ASSESSEE THAT ALL THESE THREE OR DERS OF THE HONBLE TRIBUNAL PERTAIN TO ONLY ONE BLOCK PERIOD I.E. 1990-91 TO 19 99-2000 AND UPTO 22.6.1999 FOR THE SAME SEARCH. THE REGISTRY IS DIRECTED TO FIX THE APPEAL IN DUE COURSE. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN COURT ON THE DATE MENTIONED HER EINABOVE AT CAPTION PAGE SD/- SD/- ( .. ) (' #$) ( N.S. SAINI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDI CIAL MEMBER AHMEDABAD; DATED 21/ 02 /2014 5..., .../ T.C. NAIR, SR. PS MA NO.105/AHD/2013(BY ASSESSEE) (IN IT(SS)A NO.60/AHD/2010) DCIT VS. SHRI JITENDRA S.JAIN BLOCK PERIOD : 1990-91 TO 1999-2000 UPTO 22.6.1999 - 4 - 2 - )$6 761$ 2 - )$6 761$ 2 - )$6 761$ 2 - )$6 761$/ COPY OF THE ORDER FORWARDED TO : 1. &+ / THE APPLICANT. 2. )*&+ / THE RESPONDENT. 3. !! $ '8 / CONCERNED CIT 4. '8() / THE CIT(A)-XV, AHMEDABAD 5. 6 #9 )$ , , / DR, ITAT, AHMEDABAD 6. 9:; <, / GUARD FILE. 2' 2' 2' 2' / BY ORDER, *6$ )$ //TRUE COPY// = == =/ // / !' !' !' !' ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 18.2.14(DICTATION-PAD 8-P AGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 18.2.14 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 FAIR ORDER PLACED BEFORE OTHER MEMBER 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.21.2.14 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 21.2.14 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER