The ITO, Ward-6(1), Surat V. Shri Ashish B. Modi (HUF), Surat

MA 20/AHD/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2458 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-10-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 19-09-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 03-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD , , BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER MA NO.20/AHD/2014 - AY 2004-05 (IN ./ IN I.T.A. NO.218/AHD/2014 AY 2004-05) THE INCOME TAX OFFICER WARD-6(1) SURAT (ORIGINAL RESPONDENT) / VS. SHRI ASHISH B.MODI (HUF) 97-98, GIDC PANDESARA SURAT 394 221 (ORIGINAL APPELLANT) ' ./ ./ PAN/GIR NO. : AAEHA 0462 Q ( APPLICANT ) .. ( %&'' / RESPONDENT ) REVENUE B Y : SHRI M.K.SINGH, SR.D.R. ASSESSEE B Y : SHRI MEHUL SHAH, A.R. () / DATE OF HEARING : 19/09/2014 *+,-) / DATE OF PRONOUNCEMENT : 15/10/2014 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS MISCELLANEOUS APPLICATION IS FILED BY THE REVE NUE ON 3.2.2014 (ARISING OUT OF ITA NO.218/AHD/2013 FOR AY 2004-05- ASSESSEES APPEAL) IN THE ORDER DATED 28/06/2013 PASSED BY THE ITAT C BENCH, AHMEDABAD. 2. THE LD.SR.DR REITERATED THE SUBMISSIONS AS WERE MADE IN THE APPLICATION. ON THE CONTRARY, LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE APPLICATION MADE BY THE REVENUE IS MISPLACED A ND ILL-FOUNDED. HE SUBMITTED THAT THE REVENUE HAS STRANGELY SUBMITTING THAT HOW COME THE SECOND ORDER IN ITA NO.1061/AHD/2008 (IN QUANTUM AP PEAL) DATED 24/09/2010 CAME TO BE PASSED WHEN THE SAID ORDER WA S PASSED AFTER THE MISCELLANEOUS APPLICATION NO.237/AHD/2010 WHICH WAS ALLOWED VIDE MA NO.20/AHD/2014 (IN ITA NO.218/AHD/2013) ITO VS. SHRI ASHISH B.MODI (HUF) ASST.YEAR 2004-05 - 2 - ORDER DATED 31/10/2011. HE POINTED OUT THAT SR.DR SHRI O.P. BATHEJA WAS PRESENT AT THE TIME OF HEARING OF MA NO.237/AH D/2010. HE SUBMITTED THAT HIGHHANDNESS AND ARBITRARY ACT CAN B E INFERRED SUCH KIND OF SUBMISSIONS MADE BY THE REVENUE. HE FURTHER SUB MITTED THAT THE REVENUE IS SEEKING REVIEW OF THE ORDER WHICH IS NOT PERMISSIBLE AND BEYOND THE SCOPE OF SECTION 254 OF THE ACT. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT APPEARS THAT BEFORE MAKIN G THE PRESENT APPLICATION BY THE REVENUE HAS NOT CHECKED OUT ITS RECORDS AS THE ORIGINAL ORDER DATED 24/09/2010 DECIDED IN ITA NO.1061/AHD/ 2008 (IN QUANTUM APPEAL) WAS RECALLED VIDE TRIBUNAL (ITAT C BENCH AHMEDABAD) ORDER DATED 31/10/2011 PASSED IN MA NO.237/AHD/2010 (OUT OF ITA NO.1061/AHD/2008 FOR AY 2004-05). AS PER REVENUE I TSELF OUT OF TOTAL ADDITIONS OF RS.25,48,666/- ADDITION TO THE EXTENT OF RS.5,72,665/- HAS BEEN CONFIRMED BY THE HONBLE ITAT. HOWEVER, IT IS NOT DISPUTED THAT THE PENALTY HAS BEEN LEVIED ON ENTIRE ADDITION OF R S.25,48,649/-. IT IS SETTLED LAW THAT MERELY CONFIRMATION OF ADDITION WO ULD NOT BE SUFFICIENT TO LEVY PENALTY, SINCE THE ASSESSMENT PROCEEDINGS A ND PENALTY PROCEEDINGS ARE TWO SEPARATE AND DISTINCT PROCEEDIN GS. IN THE CASE IN HAND, SUBSTANTIAL PART OF ADDITION HAS BEEN DELETED BY THE TRIBUNAL, THAT GOES TO DEMONSTRATE THAT EX-FACIE ON THE DELETED AD DITION, THE PENALTY ALSO NEEDS TO BE DELETED. THEREFORE, IN OUR CONSIDERED VIEW, IF THE CONTENTION OF THE REVENUE IS ACCEPTED, IT WOULD TANTAMOUNT TO REVIEW OF THE ORDER WHICH IS BEYOND THE SCOPE OF SECTION 254 OF THE ACT . MA NO.20/AHD/2014 (IN ITA NO.218/AHD/2013) ITO VS. SHRI ASHISH B.MODI (HUF) ASST.YEAR 2004-05 - 3 - 4. AS A RESULT, MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN COURT ON THE DATE MENTIONED HER EINABOVE AT CAPTION PAGE SD/- SD/- ( ) ( ) ( ANIL CHATURVEDI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 15/ 10 /2014 1..,.../ T.C. NAIR, SR. PS !'#$%$&' / COPY OF THE ORDER FORWARDED TO : 1. '' / THE APPLICANT. 2. %&'' / THE RESPONDENT. 3. 234 5 / CONCERNED CIT. 4. 5 ( ) / THE CIT(A)-I, SURAT 5. 67% 34 , 34- , 2 / DR, ITAT, AHMEDABAD 6. 79:;( / GUARD FILE. / BY ORDER, &6 % //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 8.10.14 (DICTATION-PAD 4-P AGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 09.10.14 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 BEFOR E OTHER MEMBER 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S 15.10.14 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 15.10.14 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