Shri Tejal P.Shah, Nadiad v. The ACIT.,Kheda Circle,, Nadiad

ITA 1315/AHD/2010 | 2001-2002
Pronouncement Date: 30-08-2010 | Result: Partly Allowed

Appeal Details

RSA Number 131520514 RSA 2010
Assessee PAN BGBPS3381Q
Bench Ahmedabad
Appeal Number ITA 1315/AHD/2010
Duration Of Justice 4 month(s) 3 day(s)
Appellant Shri Tejal P.Shah, Nadiad
Respondent The ACIT.,Kheda Circle,, Nadiad
Appeal Type Income Tax Appeal
Pronouncement Date 30-08-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted SMC
Tribunal Order Date 30-08-2010
Assessment Year 2001-2002
Appeal Filed On 26-04-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL : SMC BENCH : AHMEDABA D (BEFORE HON'BLE SHRI T.K. SHARMA JUDICIAL MEMBER ) I.T.A. NOS. 1315 & 1316/AHD./2010 ASSESSMENT YEAR : 2001-2002 TEJAL P. SHAH KHEDA -VS.- ASSISTANT COMM ISSIONER OF INCOME TAX (PAN : BGBPS 3381 Q) KHEDA CIRCLE NADIAD (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI G.C. PIPARA RESPONDENT BY : SHRI K.M. MAHESH SR. D.R. O R D E R THE APPEAL BEING ITA NO. 1315/AHJD/2010 FILED BY THE ASSESSEE ARE AGAINST THE ORDER DATED 09.11.2009 OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV BARODA FOR THE ASSESSMENT YEAR 2001-02 ON THE FOLLOWING GROUNDS :- (1) THE IMPUGNED APPELLATE ORDER IS BAD IN LAW THE ASS ESSMENT ORDER BEING ITSELF BAD IN LAW IN AS MUCH AS THE SAME BEIN G BASED ON INVALID NOTICE U/S. 148 OF THE ACT AS THE APPELLANT WAS A M INOR DURING THE YEAR UNDER CONSIDERATION. ACCORDINGLY THE IMPUGNED ORDE R REQUIRES TO BE QUASHED AS VOID-AB-INITIO. (2) THE LD. CIT(A.) HAS ERRED IN LAW AND ON FACTS IN CO NFIRMING THE ACTION OF THE A.O. IN INVOKING THE PROVISIONS OF SECTION 1 47/148 OF THE ACT IN REOPENING OF THE ASSESSMENT AND SECTION 144 OF THE ACT IN PASSING THE BEST JUDGMENT ORDER KEEPING IN VIEW THE FACT THAT T HE APPELLANT BEING A MINOR DURING THE YEAR UNDER APPEAL NEITHER THE ASS ESSMENT ORDER NOR THE APPELLATE ORDER IS VALIDLY PASSED IN CASE OF TH E APPELLANT. (3) THE APPELLANT STATES THAT THE ASSESSMENT ORDER AND THE ADDITIONS MADE THEREIN REQUIRES TO BE CONSIDERED IN THE HANDS OF A PPELLANTS FATHER SHRI PRAHLADRAY M. SHAH AS PER THE PROVISIONS OF SECTION 64(1A) OF THE ACT/ (4) THE LD. CIT(A.) HAS ERRED IN LAW AND ON FACTS IN CO NFIRMING THE ADDITION OF RS.1 95 000/- ON ACCOUNT OF ALLEGED INVESTMENT I N FDRS IN THE HANDS OF THE APPELLANT WHILE REJECTING THE APPELLANTS CO NTENTION THAT THE SAME REQUIRES TO BE CONSIDERED IN THE HANDS OF APPELLANT S FATHER SHRI PRAHLADRAY M. SHAH. IN VIEW OF THE FACTS OF THE CAS E THE IMPUGNED ADDITION OF RS.1 95 000/- REQUIRES TO BE DELETED MO RE PARTICULARLY KEEPING IN VIEW THE FACT THAT THE APPELLANT BEING A MINOR DURING THE YEAR IN APPEAL THE IMPUGNED ADDITION EVEN IF HELD AS CORRECT (WITHOUT 2 ITA NOS . 1315 & 1316/AHD/2010 ADMITTING) REQUIRES TO BE TAXED IN THE HANDS OF APP ELANTS FATHER SHRI PRAHLADRAY M. SHAH AND NOT THE APPELLANT. THE APPEAL BEING ITA NO. 1316/AHD/2010 FILED BY THE ASSESSEE IS AGAINST THE ORDER DATED 19.11.2009 OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-IV BARODA IN CONFIRMING THE PENALTY OF RS.38 025/- LEVIED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT FOR THE ASSESSMENT YEAR 2001-02. 2. BOTH THESE APPEALS WERE HEARD ON THE SAME DATE ARGUED BY COMMON LD. REPRESENTATIVE THEREFORE THESE ARE DECIDED BY THIS COMMON ORDER F OR THE SAKE OF CONVENIENCE. 3. BOTH THESE APPEALS ARE DELAYED BY 76 DAYS FOR W HICH THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY. THE REASONS FOR SEEKING T HE CONDONATION OF DELAY IN THE SAID APPLICATION READS AS UNDER :- REF.: APPEAL AGAINST CIT(A.)S ORDER DATED 09/11/20 09 FORAY200L-02. SUB: APPLICATION FOR CONDONATION OF DELAY IN FILI NG THE APPEAL. WITH REFERENCE TO THE CAPTIONED SUBJECT I HAVE TO STATE THAT THE APPELLATE ORDER DATED 19/11/2010 PASSED BY THE LEARNED CIT(A)-IV B ARODA AGAINST WHICH THE APPEAL IS BEING FLED BEFORE THE HON'BLE ITAT WAS RE CEIVED BV ME ON 08/12/2009. ACCORDINGLY THE DUE DATE FOR FILING THE APPEAL BEF ORE THE HON'BLE ITAT WAS 08/02/2010. HOWEVER THE SAID APPEAL COULD NOT BE F ILED WITHIN THE PRESCRIBED TIME FOR THE FOLLOWING GENUINE REASONS; 1. THAT KEEPING IN VIEW THE AMOUNT OF PENALTY U/S.271(L)(C) OF THE ACT LEVIED BY THE A 0 AND CONFIRMED BY THE CIT(A) AND ALSO CO NSIDERING THE FACT THAT I HAD NOT FILED A SECOND APPEAL AGAINST THE CIT(A)'S ORDE R DISMISSING THE QUANTUM APPEAL FOR THE ABOVE MENTIONED YEAR INITIALLY I HA D DECIDED NOT TO FILE A SECOND APPEAL BEFORE THE HON'BLE ITAT AHMEDABAD BENCH AGA INST THE CIT(A) R S ORDER CONFIRMING THE PENALTY U/S.271(L)(C) OF THE ACT. 2. THAT SUBSEQUENTLY DURING CERTAIN DISCUSSIO NS WITH MY CHARTERED ACCOUNTANT IN THE THIRD WEEK OF APRIL 2010 IT CAM E TO OUR NOTICE THAT I WAS A MINOR DURING THE YEARS IN DISPUTE AS I WAS BORN ON 31/12/1983 AND HENCE BECAME A MAJOR ONLY ON 31/12/2001 I.E. DURING THE P REVIOUS YEAR RELEVANT TO A.Y.2002-03. 3. THAT ACCORDINGLY I WAS GIVEN TO UNDERSTAND THAT THE ASSESSMENT AND PENALTY ORDERS PASSED IN MY NAME FOR THE YEARS DURI NG WHICH I WAS A MINOR WERE BAD IN LAW AND THE ADDITIONS MADE THEREIN WERE REQUIRED TO BE CONSIDERED IN THE HANDS OF MY FATHER SHRI PRAHLADRAY M. SHAH. AS A CONSEQUENCE THE. 3 ITA NOS . 1315 & 1316/AHD/2010 APPEAL ORDERS CONFIRMING THE ADDITIONS MADE IN THE ASSESSMENT ORDERS AND THE PENALTY LEVIED BY THE A 0 ON THE SAID ADDITIONS AR E ALSO BAD IN LAW AND INVALID. 4. THAT ON GAINING KNOWLEDGE ABOUT THE ABOVE MENTIONED FACTS I HAVE BEEN NOW ADVISED TO FILE APPEALS BEFORE THE HON'BLE ITAT AHMEDABAD BENCH TO CORRECT THE SAID ANOMALY AND MISTAKE APPARENT FROM RECORD. 5. THAT ACCORDINGLY THE APPEALS WERE PREPARED BY MY CHARTERED ACCOUNTANT FOR A.Y 2001-02 DURING WHICH I WAS A MINOR CHALLENG ING THE VALIDITY OF THE ASSESSMENT ORDERS PENALTY ORDERS AND THE APPELLATE ORDERS PASSED IN MY NAME FOR THE SAID YEARS. THE ITAT FEES FOR APPEAL HAVE A LSO BEEN PAID ACCORDINGLY. IN VIEW OF THE ABOVE FACTS AND BONAFIDE REASON AT M Y END THERE HAS BEEN A GENUINE DELAY OF 76 DAYS IN FILING THE APPEAL FOR A Y.2001-02. THE APPEAL IS THUS FILED BEFORE THE HON'BLE 1TAT AHMEDABAD BENCH ALON G WITH CONDONATION APPLICATION. I ACCORDINGLY HUMBLY REQUEST THE HON'B LE MEMBERS TO CONDONE THE BONAFIDE DELAY ON MY PART AND ADMIT THE APPEAL IN T HE INTEREST OF JUSTICE AND OBLIGE. LASTLY I HAVE TO STATE AND CONFIRM THAT THE FACTS STATED HEREINABOVE ARE TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE INFORMATION AN D BELIEF AND I BELIEVE THE SAME TO BE TRUE. 4. AT THE TIME OF HEARING BEFORE ME SHRI G.C. PIPA RA LD. COUNSEL APPEARING ON BEHALF OF THE ASSESSEE POINTED OUT THAT MERELY DELAY OF 76 DAYS B E CONDONED BECAUSE THE ASSESSEE WAS MINOR. THE LD. COUNSEL OF THE ASSESSEE CONTENDED THAT THE APPEALS OF THE ASSESSEE BE ADMITTED BECAUSE IT HAS OCCURRED DUE TO MISTAKEN BELIEF ON THE PART OF THE ASSESSEE. FOR THIS HE RELIED ON THE JUDGMENT DATED 19.02.1987 OF THE HON'BLE SUPREME CO URT IN THE CASE OF COLLECTOR LAND ACQUISITION VS.- MST. KATIJI & ORS. IN CIVIL APPEA L NO. 460 OF 1987. 5. ON THE OTHER HAND SHRI K.M. MAHESH LD. SR. D.R . APPEARING ON BEHALF OF THE REVENUE OBJECTED TO THE PRAYER OF THE LD. COUNSEL OF THE AS SESSEE ON THE GROUND THAT IN CASE THE ASSESSEE IS MINOR THEN ASSESSEES FATHER/ NATURAL GUARDIAN SHOU LD HAVE FILED APPEALS WITHIN TIME. SINCE THIS WAS NOT DONE BOTH THE APPEALS BE DISMISSED. 6. AFTER HEARING BOTH THE SIDES I HAVE CAREFULLY G ONE THROUGH THE CONTENTS OF THE APPLICATION FILED FOR CONDONATION OF DELAY AS WELL AS COPY OF S CHOOL LEAVING CERTIFICATE IN SUPPORT OF DATE OF BIRTH OF THE ASSESSEE. 6.1. UNDER SECTION 5 OF THE LIMITATION ACT OF 1963 THE TRIBUNAL MAY ADMIT AN APPEAL OR PERMIT THE FILING OF AN APPEAL AFTER THE EXPIRY OF PRESCRIBED PERIOD IF IT IS SATISFIED THAT THERE WAS 4 ITA NOS . 1315 & 1316/AHD/2010 SUFFICIENT CAUSE FOR NOT PRESENTING IT WITHIN THAT PERIOD. REGARDING CONTENTION OF DELAY IN FILING THE APPEAL IT HAS BEEN HELD IN SEVERAL RECENT JUDG MENTS OF THE HON'BLE SUPREME COURT STARTING WITH MST. KATIJI BALAKRISHNAN VS.- KRISHNAMURTHI ETC. THAT IN THE PURSUIT OF JUSTICE TECHNICALITIES SHOULD BE AVOIDED AND AN ATTEMPT MUS T BE MADE TO DECIDE THE SUBSTANTIVE ISSUES RAISED IN THE APPEAL. THE EXPRESSION SUFFICIENT C AUSE EMPLOYED BY THE LEGISLATURE IS ADEQUATELY ELASTIC TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SUB-SERVES THE ENDS OF JUSTICE. IN THIS JUDGMENT THE HON'BLE SUPREME COUR T HELD AS UNDER :- (1) ORDINARILY A LITIGANT DOES NOT STAND TO BENEF IT BY LODGING AN APPEAL LATE. (2) REFUSING TO CONDONE DELAY CAN RESULT IN A MERIT ORIOUS MATTER BEING THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTI CE BEING DEFEATED. AS AGAINST THIS WHEN DELAY IS CONDONED THE HIGHEST T HAT CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERITS AFTER HEARING THE PARTIES. (3)EVERY DAYS DELAY MUST BE EXPLAINED DOES NOT M EAN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOURS DELAY EVERY SECONDS DELAY? THE DOCTRINE MUST BE APPLIED IN A RATIONAL C OMMON SENSE AND PRAGMATIC MANNER. (4) WHEN SUBSTANTIAL JUSTICE AN TECHNICAL CONSIDERA TION ARE PITTED AGAINST EACH OTHER THE CAUSE OF SUBSTANTIAL JUSTICE DESERV ES TO BE PREFERRED FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJ USTICE BEING DONE BECAUSE OF A NON-DELIBERATE DELAY. (5) THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONE D DELIBERATELY OR ON ACCOUNT OF CULPABLE NEGLIGENCE OR ON ACCOUNT OF MA LA FIDES. A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY. IN FACT HE RUNS A SERIOUS RISK. (6) IT MUST BE GRASPED THAT THE JUDICIARY IS RESPEC TED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GROUNDS BU T BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. 6.2. THE HON'BLE SUPREME COURT ON 09.06.2010 IN CIV IL APPEAL NO. 2397 OF 2008 IN THE CASE OF IMPROVEMENT TRUST VS.- UJAGAR SINGH HELD THAT U NLESS MALA FIDES ARE WRITE LARGE THE DELAY SHOULD BE CONDONED. THE MATTER SHOULD BE DISPOSED O F ON MERITS AND NOT ON TECHNICALITIES. AFTER CONSIDERING THE SUBMISSIONS MADE BY THE LD. COUNSEL OF THE ASSESSEE PRIMA FACIE IT APPEARS THAT DELAY HAS OCCURRED BECAUSE OF SOME MISTAKEN VIEW. A S A MATTER OF FACT NO PRUDENT MAN WOULD FILE THE APPEAL LATE ONCE THE ORDER IS AGAINST HIM. I AM THEREFORE OF THE VIEW THAT THERE IS A 5 ITA NOS . 1315 & 1316/AHD/2010 SUFFICIENT CAUSE FOR CONDONING THE DELAY OF 76 DAYS . THE DELAY IS THEREFORE CONDONED AND BOTH THE APPEALS OF THE ASSESSEE ARE ADMITTED. 7. ON MERIT THE LD. COUNSEL OF THE ASSESSEE SUBMIT TED THAT THE ASSESSEE WAS A MINOR DURING THE YEAR UNDER APPEAL THEREFORE ISSUANCE OF NOTIC E UNDER SECTION 148 AND ASSESSMENT ORDER PASSED IS INVALID. HE SUBMITTED THAT KEEPING IN VIE W THE PROVISIONS CONTAINED IN SECTION 64 OF THE INCOME TAX ACT THE ADDITION IF ANY SHOULD HAVE B EEN MADE IN THE HANDS OF ASSESSEES FATHER SHRI PRAHLADRAY M. SHAH. THEREFORE THE ASSESSMENT FRAMED BE QUASHED. FURTHER THE PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT BE CANCEL LED BECAUSE ASSESSMENT ORDER IS VOID-AB-INITIO. 8. ON THE OTHER HAND THE LD. D.R. POINTED OUT THAT THE ASSESSING OFFICER FRAMED THE ASSESSMENT UNDER SECTION 144 AS THE ASSESSEE HAS NO T COOPERATED WITH THE DEPARTMENT. THE LD. D.R. FURTHER DREW MY ATTENTION TO THE PROVISIONS CO NTAINED IN PROVISO TO SECTION 64(1A) OF THE ACT WHICH READS AS UNDER :- SEC. 64(1A) : IN COMPUTING THE TOTAL INCOME OF ANY INDIVIDUAL THERE SHALL BE INCLUDED ALL SUCH INCOME AS ARISES OR ACCRUES TO HIS MINOR CHILD [NOT BEING A MINOR CHILD SUFFERING FROM ANY DISABILITY O F THE NATURE SPECIFIED IN SECTION 80U] : PROVIDED THAT NOTHING CONTAINED IN THIS SUB-SECTION SHALL APPLY IN RESPECT OF SUCH INCOME AS ARISES OR ACCRUES TO THE MINOR CH ILD ON ACCOUNT OF ANY (A) MANUAL WORK DONE BY HIM; OR (B) ACTIVITY INVOLVING APPLICATION OF HIS SKILL TALENT OR SPECIALIZED KNOWLEDGE AND EXPERIENCE. EXPERIENCE FOR THE PURPOSES OF THIS SUB-SECTION THE INCOME OF THE MINOR CHILD SHALL BE INCLUDED - (A) WHERE THE MARRIAGE OF HIS PARENTS SUBSISTS IN THE INCOME OF THAT PARENT WHOSE TOTAL INCOME (EXCLUDING THE INCOM E INCLUDIBLE UNDER THIS SUB-SECTION) IS GREATER; OR (B) WHERE THE MARRIAGE OF HIS PARENTS DOES NOT SUBSIST IN THE INCOME OF THAT PARENT WHO MAINTAINS THE MINOR CHILD IN THE PREVIOUS YEAR AND WHETHER ANY SUCH INCOME IS ONCE INCLUDED IN THE TOTAL INCOME OF EITHER PARENT ANY SUCH INCOME ARISING IN ANY SUCCE EDING YEAR SHALL NOT BE INCLUDED IN THE TOTAL INCOME OF THE OTHER PARENT U NLESS THE ASSESSING OFFICER IS SATISFIED AFTER GIVING THAT PARENT AN O PPORTUNITY OF BEING HEARD THAT IT IS NECESSARY SO TO DO. 6 ITA NOS . 1315 & 1316/AHD/2010 THE LD. D.R. SUBMITTED THAT AS PER PROVISO TO SECTI ON 64(1A) A MINOR CAN ALSO BE ASSESSED TO TAX. THEREFORE THE ASSESSMENT CANNOT BE QUASHED. THE LD . D.R. FURTHER POINTED OUT THAT WHETHER THE FDRS WERE PURCHASED BY THE ASSESSEE FROM THE INCOME ON ACCOUNT OF MANUAL WORK DONE BY HER OR ANY ACTIVITY INVOLVING APPLICATION OF HER SKILL TALENT OR SPECIALIZED KNOWLEDGE AND EXPERIENCE NEEDS VERIFICATION AT THE END OF ASSESSING OFFICER. THEREFORE THE ASSESSMENT CANNOT BE QUASHED. 9. IN REJOINDER THE LD. COUNSEL OF THE ASSESSEE SU BMITTED THAT THESE FDRS WERE PURCHASED BY THE FATHER OF THE ASSESSEE. THEREFORE PROVISO TO S ECTION 64(1A) IS INAPPLICABLE. IN CASE THESE FDRS ARE UNEXPLAINED IN THAT EVENT THESE SHOULD B E CONSIDERED AS ADDITION IF ANY REQUIRES TO BE MADE IN THE HANDS OF ASSESSEES FATHER NAMELY SHRI PRAHLADRAY M. SHAH. THE LD. COUNSEL OF THE ASSESSEE FURTHER SUBMITTED THAT THESE FDRS WERE DUL Y CONSIDERED IN THE HANDS OF ASSESSEES FATHER THEREFORE THE ADDITION CANNOT BE MADE TWIC E. 10. AFTER HEARING BOTH THE SIDES I HAVE CAREFULLY GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT NEITHER BEFORE THE ASSESSING OFFICER NOR BEFORE THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) THE ASSESSEE PO INTED OUT THAT SHE IS MINOR. AS A MATTER OF FACT THIS PLEA HAS BEEN TAKEN FOR THE FIRST TIME B EFORE THE ITAT. I ALSO FIND CONSIDERABLE FORCE IN THE SUBMISSIONS MADE BY THE LD. D.R. THAT WHETHER T HE PROVISO TO SECTION 64(1A) IS APPLICABLE TO THE ASSESSEE OR NOT NEEDS VERIFICATION AT THE END O F ASSESSING OFFICER. THEREFORE THE ASSESSMENT FRAMED BY THE ASSESSING OFFICER CANNOT BE QUASHED. RESULTANTLY GROUNDS NO. 1 & 2 ARE REJECTED. 10.1. COMING TO THE MERIT I AM OF THE VIEW THAT IN CASE THESE FDRS WERE PURCHASED BY FATHER OF THE ASSESSEE NAMELY SHRI PRAHLADRAY M. SHAH IN THAT EVENT THESE SHOULD BE CONSIDERED IN THE HANDS OF HER/ ASSESSEES FATHER NAMELY SHRI PRAHLAD RAY M. SHAH. WHETHER THESE FDRS WERE CONSIDERED IN THE HANDS OF ASSESSEES FATHER NAMEL Y SHRI PRAHLADRAY M. SHAH IN THAT EVENT IT NEEDS VERIFICATION AT THE END OF ASSESSING OFFICER. I THEREFORE SET ASIDE THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) AND RESTORE THE ISSUE REGARDING ADDITION OF RS.1 95 000/- TO THE FILE OF ASSESSING OFFICER WITH THE DIRECTION THAT THE ASSESSEE SHOULD FURNISH ALL THE NECESSARY EVIDENCES I.E. EVIDENCE OF MINORITY ASSE SSMENT ORDER OF HER FATHER WHEREIN THE FDRS OF RS.1 95 000/- WERE CONSIDERED AND RE-ADJUDICATE THE ADDITION OF RS.1 95 000/- AFRESH AFTER GIVING OPPORTUNITY OF BEING HEARD. I ALSO DIRECT TH E ASSESSEE TO COOPERATE WITH THE DEPARTMENT 7 ITA NOS . 1315 & 1316/AHD/2010 FURNISH NECESSARY DETAILS/ EVIDENCES IN SUPPORT OF HER CLAIM THAT FDRS WERE PURCHASED BY HER FATHER NAMELY SHRI PRAHLADRAY M. SHAH AND THESE WE RE CONSIDERED IN HIS ASSESSMENT FOR THE RELEVANT ASSESSMENT YEAR. 11. COMING TO THE PENALTY LEVIED UNDER SECTION 271( 1)(C) I AM OF THE VIEW THAT SINCE THE ADDITION OF RS.1 95 000/- ON WHICH PENALTY UNDER SE CTION 271(1)(C) WAS LEVIED HAS BEEN SET ASIDE TO THE FILE OF ASSESSING OFFICER THE PENALTY CANNO T BE SURVIVE. THEREFORE THE PENALTY OF RS.38 025/- LEVIED IS ALSO SET ASIDE WITH THE RIDER THAT ASSESSING OFFICER IS AT LIBERTY TO INITIATE T HE SAME AFTER ADJUDICATING THE ADDITION OF RS.1 95 000 /- WHICH IS RESTORED TO HIS FILE (SUPRA). 12. IN THE RESULT FOR STATISTICAL PURPOSES BOTH T HE APPEALS FILED BY THE ASSESSEE ARE TREATED AS PARTLY ALLOWED TO THE EXTENT AS INDICATED ABOVE. THE ORDER WAS PRONOUNCED IN THE COURT ON 23.08.20 10 SD/- (T.K. SHARMA) JUD ICIAL MEMBER DATED : 23 / 08 / 2010 COPY OF THE ORDER IS FORWARDED TO : (1) THE ASSESSEE (2) THE DEPARTMENT. (3) CIT(A.) CONCERNED (4) CIT CONCERNED (5) D.R . ITAT AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGI STRAR ITAT AHMEDABAD LAHA/SR.P.S.