Smt. Nair Girijiben Baburaj, Anand v. The Income tax Officer, Ward-1,, Anand

ITA 2604/AHD/2007 | 2003-2004
Pronouncement Date: 29-12-2010 | Result: Allowed

Appeal Details

RSA Number 260420514 RSA 2007
Bench Ahmedabad
Appeal Number ITA 2604/AHD/2007
Duration Of Justice 3 year(s) 6 month(s) 17 day(s)
Appellant Smt. Nair Girijiben Baburaj, Anand
Respondent The Income tax Officer, Ward-1,, Anand
Appeal Type Income Tax Appeal
Pronouncement Date 29-12-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 29-12-2010
Date Of Final Hearing 29-12-2010
Next Hearing Date 29-12-2010
Assessment Year 2003-2004
Appeal Filed On 11-06-2007
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD B BENCH (BEFORE S/SHRI G.D. AGARWAL VICE-PRESIDENT AND BHAVNESH SAINI JUDICIAL MEMBER) ITA NO.2603 AND 2604/AHD/2007 [ASSTT. YEAR : 2002-2003 AND 2003-2004] SMT. NAIR GIRIJABEN BABURAJ 1 SON HARI KUNJ SOCIETY NR. GANESH CHOKDI ANAND. VS. ITO WARD-1 ANAND. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI GAURAV MEHTA REVENUE BY : SHRI ROBIN RAWAL O R D E R PER G.D. AGARWAL VICE-PRESIDENT : THESE ARE TWO ASSESSEES APPEALS AGAINST THE ORDER OF THE COMMISSIONER OF IN COME TAX (APPEALS)-IV BARODA ARISING OUT OF THE ORDERS OF THE ASSESSING O FFICER. ITAT NO.2603/AHD/2007 : A.Y.2002-2003 2. THE ONLY GROUND RAISED IN THIS APPEAL BY THE ASS ESSEE IS AGAINST LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT AMOUNTIN G TO RS.2 51 819/-. 3. AT THE TIME OF HEARING BEFORE US THE LEARNED CO UNSEL FOR THE ASSESSEE SUBMITTED THAT THE ENTIRE ADDITIONS MADE BY THE AO HAVE BEEN SET ASIDE BY THE ITAT VIDE ORDER DATED 23-12-2009 IN ITA NO.2413/AHD /2005 FOR FRESH ADJUDICATION AS PER THE DIRECTION BY THE ITAT IN TH AT ORDER. THEREFORE THE PENALTY IMPOSED BY THE LOWER AUTHORITIES DOES NOT S URVIVE AND THE SAME IS LIABLE TO BE CANCELLED. THE LEARNED DR HAS NOT CO NTROVERTED TO THIS SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE. 4. AFTER HEARING BOTH THE PARTIES AND CONSIDERING T HE MATERIAL AVAILABLE BEFORE US WE FIND THAT THE ITAT IN QUANTUM APPEAL IN ITA NO.2413/AHD/2003 IN THE ASSESSEES CASE (SUPRA) HAS SET ASIDE THE IS SUE BACK TO THE FILE OF THE AO WITH DIRECTION TO DECIDE THE SAME AFRESH IN ACCORDA NCE WITH LAW. THEREFORE ITA NO.2603 AND 2604/AHD/2007 -2- SINCE THE ADDITION BASED ON WHICH THE IMPUGNED PENA LTY WAS IMPOSED HAS BEEN SET ASIDE AND RESTORED BACK TO THE FILE OF THE AO F OR FRESH ADJUDICATION THE PENALTY UNDER SECTION 271(1)(C) DOES NOT SURVIVE T HE SAME IS CANCELLED. HOWEVER THE AO IS AT LIBERTY TO IMPOSE PENALTY IF THE CASE SO WARRANTS AFTER FRESH ADJUDICATION OF THE ISSUE IN THE SET ASIDE PR OCEEDINGS IN ACCORDANCE WITH LAW. ITA NO.2604/AHD/2007 : A.Y.2003-2004 5. THE ONLY GROUND RAISED IN THIS APPEAL READS AS U NDER: 1. THE LD.CIT(A) ERRED IN CONFIRMING ADDITION OF R S.1 52 350/- TREATING AGRICULTURAL INCOME AS ALLEGED INCOME FROM OTHER SOURCES. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL PLACED BEFORE US. WE FIND THAT SIMILAR ISSUE WAS RAISED BY THE A SSESSEE IN ITS APPEAL FOR A.Y.2002-2003 AND THE ITAT VIDE ITA NO.2413/AHD/200 5 (SUPRA) SET ASIDE THE MATTER BACK TO THE FILE OF THE AO. THE RELEVA NT FINDINGS OF THE ITAT READ AS UNDER: WE FIND THAT THE ASSESSEE HAS FILED ADDITIONAL EVI DENCE ON ACCOUNT OF THESE ISSUES OF UNEXPLAINED CASH DEPOSIT AND THE AG RICULTURAL INCOME. WHEN A QUERY WAS RAISED THE LD. SR. DEPARTMENTAL R EPRESENTATIVE STATED THAT THIS CAN BE ADMITTED AND THE ISSUES BE REMITTE D BACK TO THE FILE OF THE AO SO THAT HE CAN EXAMINE THE VERACITY OF THESE DOCUMENTS AS WELL AS FURTHER EXAMINE THE ISSUE AFRESH AFTER TAKING TH ESE EVIDENCES. WE FIND THAT THE ASSESSEE HAS FILED WRITTEN SUBMISSION BEFO RE US AND MADE ARGUMENT IN THE WRITTEN SUBMISSION IN RESPECT OF TH IS ADDITIONAL EVIDENCE AND THE ASSESSEES WRITTEN SUBMISSIONS ALSO REQUIRE EXAMINATION AS WELL AS THE EVIDENCES OF THE CULTIVATOR WHO WAS LOOKING AFTER THE LAND OF THE ASSESSEE. THE ASSESSEE HAS ALSO FILED AN AFFIDAVIT FROM THE CREDITOR AND THE SAME BEING NEW EVIDENCE WE ARE OF THE VIEW THA T IN ENTIRETY ALL THE THREE ISSUES REQUIRE RE-VERIFICATION AT THE LEVEL O F AO. ACCORDINGLY WE SET ASIDE THIS APPEAL TO THE FILE OF THE AO AND AO IS DIRECTED TO DECIDE THESE ISSUES AFRESH AFTER TAKING INTO CONSIDERATION ALL RELEVANT FACTS AND CIRCUMSTANCES AS PER THE PROVISIONS OF LAW. ACCOR DINGLY THIS APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO.2603 AND 2604/AHD/2007 -3- WE THEREFORE RESPECTFULLY FOLLOWING THE ABOVE DECIS ION OF THE ITAT IN THE ASSESSEES OWN CASE FOR A.Y.2002-03 SET ASIDE THE O RDERS OF THE AUTHORITIES BELOW ON THIS POINT AND RESTORE THE MATTER BACK TO THE FILE OF THE AO TO RE- ADJUDICATE AS PER THE DIRECTION OF THE ITAT GIVEN I N THE ABOVE ORDER. 7. IN RESULT ITA NO.2603/AHD/2007 IS ALLOWED AND I TA NO.2604/AHD/2007 IS ALLOWED FOR STATISTICAL PURPOSE ONLY. ORDER PRONOUNCED IN OPEN COURT ON 29 TH DECEMBER 2010. SD/- SD/- (BHAVNESH SAINI) JUDICIAL MEMBER (G.D. AGARWAL) VICE-PRESIDENT PLACE : AHMEDABAD DATE : 29-12-2010 COPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR ITAT. BY ORDER DR/AR ITAT AHMEDABAD