The Income Tax Officer,Ward-14(3), Now Ward-5(1)(3), Ahmedabad V. Shri Chandrakant N. Patel, Ahmedabad

MA 64/AHD/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 3705 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-11-2020
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 17-02-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: LALIT JAIN SR DR SHRI S K DEV
• Assessee Lawyers: PF JAIN
• Keywords: Set aside
• Section: 271(1)(c); 69; 27

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD [ CONDUCTED THROUGH VIRTUAL COURT ] BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER MA NO.64/AHD/2020 (IN ./IN ITA NO.150/AHD/2016) [ /ASSESSMENT YEAR : 2009-10] THE INCOME TAX OFFICER WARD-14(3) NOW WARD-5(1)(3) AHMEDABAD (ORIGINAL RESPONDENT) / VS. SHRI CHANDRAKANT N.PATEL 2, SHREE VALLABHKUNJ CO-OP. SOC. NEAR MAHA PRABHI BETHAK NARODA AHMEDABAD-380 025 (ORIGINAL APPELLANT) ./ ./PAN/GIR NO. : ABNPP 2158 G ( /APPLICANT ) .. ( / RESPONDENT ) / APPLICANT BY : SHRI LALIT JAIN, SR.DR SHRI S.K. DEV, SR.DR / RESPONDENT BY: SHRI P.F. JAIN, A.R. DATE OF HEARING 27/08/2019 DATE OF PRONOUNCEMENT 01/10/2019 CORRIGENDUM DATED 06 /11/2020 CORRIGENDUM PER WASEEM AHMED, ACCOUNTANT MEMBER: THIS APPLICATION HAS BEEN FILED ON 17/02/2020 BY THE LD.DR ARISING FROM THE ORDER OF ITAT A BENCH AHMEDABAD PASSED I N ITA NO.150/AHD/2016 DATED 01/10/2019. THROUGH THIS AP PLICATION, THE LD.DR HAS SUBMITTED AS UNDER:- MA NO.64/AHD/2020 (IN ITA NO.150/AHD/2016) ASST.YEAR - 2009 -10 - 2 - 2. THE APPLICANT HAS RECEIVED THE ORDER DATED 01/ 10/2019 IN ITA NO.150/AHD/2016 FOR A.Y. 2009-2010. THIS MISCELLAN EOUS APPLICATION IS ARISING OUT OF THE ABOVE REFERRED ORDER. 3. AS SEEN FROM THE IMPUGNED ORDER OF THE HONBLE I TAT, IT APPEARS THAT THE HONBLE ITAT, AHMEDABAD A BENCH, VIDE ORDER D ATED 0/10/2019 HAS ALLOWED THE APPEAL OF THE ASSESSEE AND SET ASIDE TH E ORDER OF THE LD.CIT(A) AND DIRECT AO TO DELETE THE ADDITION MADE. IN VIEW OF THE ABOVE, THE HONBLE ITAT HAS ALLOWED THE APPEAL OF THE ASSESSEE AGAINST THE ORDER U/S.271(1)(C) OF THE ACT. 4. HOWEVER, THE ORDER IS NOT SPEAKING ON THIS ASPE CT WHETHER THE ORDER OF THE HONBLE ITAT, IS DELETED THE ENTIRE ADDITION MA DE BY THE AO OF RS.83,13,850/- ON ACCOUNT OF SECTION 69 OF THE ACT. THOUGH THE VIEW NOT CLEARLY EXPRESSED BY THE HONBLE ITAT IN THE AFORES AID ORDER. THE DETAILED FACTS OF THE CASE IS NARRATED AS PER ANNEXURE-A WHI CH IS ENCLOSED HEREWITH. AS THE APPEAL OF THE ASSESSEE HAS ALREADY BEEN DISM ISSED BY THE HONBLE ITAT VIDE ORDER NO.ITA NO.2272/AHD/2012 FOR A.Y. 20 09-10, DATED 11/07/2016, AND THE APPEAL FILED BY THE ASSESSEE BE FORE THE HIGH COURT OF GUJARAT, WHICH IS STILL PENDING. HENCE, MISCELLANE OUS APPLICATION (MA) IS TO BE FILED BEFORE THE HONBLE ITAT, TO GET THE SPECIF IC DIRECTION. NECESSARY APPROVAL TO FILE MA BEFORE THE HONBLE ITAT IS ACCO RDED BY THE LD.PR. CIT-5, AHMEDABAD VIDE NO.PR.CIT.5/ITO.TECH/MISC.APPL./CNP/ 2019-20 DATED 03.02.2020. 5. IT IS REQUESTED THAT THE HONBLE TRIBUNAL MAY K INDLY ACCEPT THE MISCELLANEOUS APPLICATION AND RECTIFY THE ORDER PAS SED VIDE ITA NO.150/AHD/2016 DATED 01/10/2019. 6. COPY OF AUTHORIZATION GRANTED BY THE PR.CIT-5, A HMEDABAD VIDE LETTER NO.PR.CIT.5/ITO.TECH/MISC. APPL./CNP/2019-20 DATED 03/02/2020 FOR FILING MISCELLANEOUS APPLICATION IS ENCLOSED HEREWITH ALON G WITH COPY OF HONBLE ITATS ORDER. 3. THE LEARNED DR BEFORE US PRAYED TO RECTIFY T HE ORDER PASSED BY THE ITAT DATED 01 ST OCTOBER-2019. 4. ON THE OTHER HAND, THE LEARNED AR FOR THE ASSES SEE DID NOT RAISE ANY OBJECTION ON THE CONTENTION OF THE LD.DR. MA NO.64/AHD/2020 (IN ITA NO.150/AHD/2016) ASST.YEAR - 2009 -10 - 3 - 5. IN VIEW OF THE ABOVE, WE REPRODUCE HEREUNDER PARA NOS.5 & 6 OF THE ORDER OF THE ITAT DATED 01/10/2019: 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH TH E PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. FROM TH E PRECEDING DISCUSSION THERE REMAINS NO AMBIGUITY THAT THE ADDI TION OF RS.83,13,850/- HAS ALREADY BEEN SUFFERED TO TAX IN THE CASE OF GIRISH RAMANLAL VYAS. THEREFORE, THE ASSESSEE IN RESPECT OF SUCH ADDITION CANNOT BE VISITED WITH THE PENALTY UNDER SECTION 27 1(1)(C) OF THE ACT. ACCORDINGLY WE SET ASIDE THE ORDER OF THE LD.CIT(A) AND DIRECT THE AO TO DELETE THE ADDITION MADE BY HIM. HENCE THE GROU ND OF APPEAL OF THE ASSESSEE IS ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED. 6. WE RECTIFY THE PARAGRAPH NOS.5 & 6 OF THE AFORES AID ORDER OF THE TRIBUNAL DATED 01/10/2019 WHICH READ AS UNDER: 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH TH E PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. FRO M THE PRECEDING DISCUSSION THERE REMAINS NO AMBIGUITY THA T THE ADDITION OF RS.83,13,850/- HAS ALREADY BEEN SUFFERE D TO TAX IN THE CASE OF GIRISH RAMANLAL VYAS. THEREFORE, THE A SSESSEE IN RESPECT OF SUCH ADDITION CANNOT BE VISITED WITH THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT. ACCORDINGLY, W E SET ASIDE THE ORDER OF THE LD.CIT(A) AND DIRECT THE AO TO DE LETE THE PENALTY LEVIED BY HIM U/S.271(1)(C) OF THE INCOME T AX ACT. HENCE, THE GROUND OF APPEAL OF THE ASSESSEE IS ALLO WED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED. MA NO.64/AHD/2020 (IN ITA NO.150/AHD/2016) ASST.YEAR - 2009 -10 - 4 - 7. IN THE RESULT, THE MISCELLANEOUS APPLICATI ON FILED BY THE REVENUE IS DISPOSED OF ACCORDINGLY. THIS ORDER PRONOUNCED IN OPEN COURT ON 6/11/2020 SD/- SD/- (MAHAVIR PRASAD) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 6/11/2020 . . , . . . / T.C. NAIR, SR. PS !' #' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPLICANT. 2. / THE RESPONDENT. 3. ! / CONCERNED CIT 4. ! ( ) / THE CIT(A)-5, AHMEDABAD 5. '#$ , % , / DR, ITAT, AHMEDABAD 6. $)* / GUARD FILE. / BY ORDER, ' //TRUE COPY// / (DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION 06.11.2020 (DICTATION GIVEN BY HONBLE AM) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 3. OTHER MEMBER06.11.2020 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.9.11.20 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 9.11.20 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