The ACIT, Circle-1,, Bhavnagar v. Shri Kiritsinh H. Gohil, Bhavnagar

ITA 754/AHD/2009 | 1998-1999
Pronouncement Date: 31-12-2010 | Result: Dismissed

Appeal Details

RSA Number 75420514 RSA 2009
Assessee PAN ACTPG6767D
Bench Ahmedabad
Appeal Number ITA 754/AHD/2009
Duration Of Justice 1 year(s) 9 month(s) 24 day(s)
Appellant The ACIT, Circle-1,, Bhavnagar
Respondent Shri Kiritsinh H. Gohil, Bhavnagar
Appeal Type Income Tax Appeal
Pronouncement Date 31-12-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted C
Tribunal Order Date 31-12-2010
Date Of Final Hearing 21-12-2010
Next Hearing Date 21-12-2010
Assessment Year 1998-1999
Appeal Filed On 06-03-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD C BENCH (BEFORE S/SHRI G.D. AGARWAL VICE-PRESIDENT AND MUKUL KUMAR SHRAWAT JUDICIAL MEMBER) ITA.NO.754 TO 756/AHD/2009 [ASSTT. YEAR : 1998-1999 1999-2000 AND 2000-2001] ACIT CIR.1 BHAVNAGAR. VS. SHRI KIRITSINH H. GOHIL 1117 NIRMAL NIWAS B/H RUBBER FACTORY KRISHNANAGAR BHAVNAGAR. PAN : ACTPG 6767 D (APPELLANT) (RESPONDENT) REVENUE BY : MRS.SHALINI VERMA ASSESSEE BY : SHRI M.J. SHAH O R D E R PER BENCH : THESE ARE THREE APPEALS BY THE REVENUE AGAINST THE ORDERS OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-XX AHMEDA BAD DATED 14.11.2008 ARISING OUT OF THE ORDER OF THE ASSESSING OFFICER P ASSED UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT 1961. THE ONLY GROUND RAISE D IN ALL THESE APPEALS BY THE REVENUE IS AGAINST THE CANCELLATION OF PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT AS UNDER: ASSTT.YEAR AMOUNT (RS.) I) 1998-1999 RS.1 08 680/- II) 1999-2000 RS.2 09 320/- III) 2000-2001 RS.12 76 420/- 2. AT THE TIME OF HEARING BEFORE US IT IS SUBMITTE D BY THE LEARNED COUNSEL THAT THESE PENALTIES HAVE BEEN LEVIED IN RESPECT OF ADDITIONS FOR UNEXPLAINED CREDIT ENTRIES UNDER SECTION 68 AND FOR UNEXPLAINED DEPOSIT IN THE BANK ACCOUNT UNDER SECTION 69. THAT BOTH THE ADDITIONS HAVE BEE N SET ASIDE BY THE ITAT TO ITA.NO.754 TO 756/AHD/2009 -2- THE FILE OF THE AO VIDE ORDER IN ITA NO.2536 2537 2538 AND 2673/AHD/2006 ORDER DATED 17-6-2008. HE THEREFORE SUBMITTED THAT WHEN THE ADDITIONS ITSELF HAVE BEEN SET ASIDE THE PENALTY UNDER SECTION 271(1 )(C) IN RESPECT OF THESE ADDITIONS MAY BE CANCELLED. THE LEARNED DR ON OT HER HAND RELIED UPON THE ORDER OF THE AO. 3. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND PERUSED THE MATERIAL PLACED BEFORE US. WE FIND THAT THE ADDITI ONS IN RESPECT OF WHICH THE PENALTY HAVE BEEN LEVIED HAVE BEEN SET ASIDE BY THE ITAT IN THE QUANTUM APPEAL VIDE ORDER IN ITA NO. 2536 2537 2538 AND 2 673/AHD/2006 DATED 17-6- 2008 WITH THE FOLLOWING FINDINGS: 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE O N RECORD. WE FIND THAT ADDITION(S) OF RS.2 81 025/- RS.7 26 561/- & RS.30 65 415/- IN ASSESSMENT YEARS 1998-99 1999-2000 AND 2000-01 RES PECTIVELY AS UNEXPLAINED DEPOSITS IN JOINT BANK ACCOUNT MAINTAIN ED WITH BHAVNAGAR DISTRICT CO-OPERATIVE BANK LTD. IN THE NAME OF ASSE SSEE AND HIS EX-WIFE CAME TO BE MADE AS THE ASSESSEE COULD NOT FURNISH T HE SALE BILLS BEFORE THE ASSESSING OFFICER FOR JEWELLERY WHICH PROCEEDS WERE CLAIMED TO HAVE BEEN DEPOSITED WITH THE SAID BANK. THESE BILLS AND INFORMATION RECEIVED FROM BHAVNAGAR DISTRICT CO-OPERATIVE BANK LTD. WHIC H COULD NOT BE PRODUCED BEFORE THE AO AND WERE PRODUCED BEFORE THE LD.CIT(A) WERE NOT ACCEPTED BY THE LD.CIT(A) ON THE GROUND THAT TH ESE ARE ADDITIONAL EVIDENCES/DOCUMENTS INADMISSIBLE UNDER RULE 46A OF THE INCOME TAX RULES 1962. WE FIND THAT THE FRESH EVIDENCES FILE D BY THE ASSESSEE BEFORE THE LD.CIT(A) GOES TO THE ROOT OF THE MATTER AND FO R RENDERING THE JUSTICE IN THE MATTER THE PLEA OF THE ASSESSEE TO TAKE INT O CONSIDERATION THE SAME HAS FORCE. FURTHER BOTH THE PARTIES HAVE AGR EED TO RESTORE THE MATTER BACK TO THE FILE OF THE AO FOR FRESH ADJUDIC ATION OF THE ISSUE AFTER CONSIDERING THE EVIDENCES FILED BEFORE THE LD.CIT(A ) WE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND DIRECT THE AO T O RE-ADJUDICATE THE ISSUE AFRESH IN ACCORDANCE WITH LAW. AFTER CONSIDE RING THE EVIDENCES FILED BY THE ASSESSEE. SIMILARLY AS BOTH PARTIES HAVE AGREED TO RESTORE THE ISSUES REGARDING THE ADDITION(S) OF RS.2 08 590 /- MADE UNDER SECTION 68 OF THE INCOME TAX ACT 1961 AND RS.3 25 000/- MA DE UNDER SECTION 69 OF THE INCOME TAX ACT 1961 ON ACCOUNT OF UNEXPL AINED INVESTMENT TO THE FILE OF THE AO FOR DECIDING THE SAME AFRESH AFT ER CONSIDERING THE EVIDENCES FILED BY THE ASSESSEE BEFORE THE LD. CIT( A) WHICH WAS NOT BEFORE THE AO. THEREFORE WE SET ASIDE THE ORDERS OF THE LOWER ITA.NO.754 TO 756/AHD/2009 -3- AUTHORITIES AND REMAND THE MATTER BACK TO THE FILE OF THE AO FOR FRESH ADJUDICATION OF THE ISSUES AFTER CONSIDERING THE E VIDENCES FILED BY THE ASSESSEE IN ACCORDANCE WITH LAW. NEEDLESS TO MENTI ON THAT THE AO SHALL ALLOW PROPER AND REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE BEFORE ADJUDICATING THE ISSUE(S) AFRESH. SINCE THE ADDITIONS IN RESPECT OF WHICH THE PENALTY UNDER SECTION 271(1)(C) WERE LEVIED HAVE BEEN SET ASIDE BY THE ITAT THE S AID PENALTY CANNOT STAND. WE THEREFORE UPHOLD THE ORDER OF THE CIT(A) CANCELI NG THE PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT. HOWEVER WE MAY CLAR IFY THAT AFTER THE COMPLETION OF SET ASIDE ASSESSMENT IF THE FACTS OF THE CASE SO WARRANT THE AO WILL BE AT LIBERTY TO RE-INITIATE THE PROCEEDINGS U NDER SECTION 271(1)(C) IN ACCORDANCE WITH LAW. 4. IN THE RESULT THE REVENUES APPEALS ARE DISMISS ED. ORDER PRONOUNCED IN OPEN COURT ON 31 ST DECEMBER 2010. SD/- SD/- (MUKUL KR. SHRAWAT) JUDICIAL MEMBER (G.D. AGARWAL) VICE-PRESIDENT PLACE : AHMEDABAD DATE : 31-12-2010 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