Smt. Muktaben P.Patel, Anand v. The ACIT., Circle,, Nadiad

ITSSA 41/AHD/2009 | misc
Pronouncement Date: 08-07-2011 | Result: Allowed

Appeal Details

RSA Number 4120516 RSA 2009
Assessee PAN ACYPP4961D
Bench Ahmedabad
Appeal Number ITSSA 41/AHD/2009
Duration Of Justice 1 year(s) 11 month(s) 11 day(s)
Appellant Smt. Muktaben P.Patel, Anand
Respondent The ACIT., Circle,, Nadiad
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 08-07-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 08-07-2011
Date Of Final Hearing 30-06-2011
Next Hearing Date 30-06-2011
Assessment Year misc
Appeal Filed On 27-07-2009
Judgment Text
IT(SS)A NO.41/AHD/2009 . BLOCK PERIOD 1 -4-89 TO 12-10- 99. 1 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH AH MEDABAD. (BEFORE SHRI T. K.SHARMA & SHRI A. K. GARODIA) I.T .(SS)A. NO.41/AHD/2009 (BLOCK PERIOD 1-4-1989 TO 12-10-1999) SMT. MUKTABEN P. PATEL PROP. SARVODAY NURSING HOME AT BALASINOR DISTRICT KHEDA NADIAD. (APPELLANT) VS. DEPUTY COMMISSIONER OF INCOME TAX KHEDA CIRCLE INCOME TAX OFFICE STATION ROAD NADIAD. (RESPONDENT) PAN: ACYPP 4961D APPELLANT BY : SHRI A. L. THAKKAR. RESPONDENT BY : SHRI SAMIR TEKRIWAL SR. D.R. ( (( ( )/ )/)/ )/ ORDER PER: SHRI A.K. GARODIA A.M. THIS APPEAL IS FILED BY THE ASSESSEE WHICH IS DIRE CTED AGAINST THE ORDER OF LD. CIT (A)-IV BARODA DATED 1-6-2009 FOR THE BL OCK PERIOD 1-4-1989 TO 12-10-1999. 2. THE ONLY GROUND RAISED BY THE ASSESSEE IS AS UND ER:- THE LD. CIT (A)-IV BARODA ERRED IN LAW AND ON FA CTS IN CONFIRMING PENALTY OF RS.6 76 773/-LEVIED U/S. 158B FA(3) OF I.T. ACT BY DY. COMMISSIONER OF INCOME-TAX KHEDA CIRCLE NA DIAD. IT(SS)A NO.41/AHD/2009 . BLOCK PERIOD 1 -4-89 TO 12-10- 99. 2 3. BRIEF FACTS TILL THE STATE OF IMPOSITION OF PENA LTY LEVIED BY THE A.O. ARE NOTED BY LD. CIT (A) IN PARAGRAPH 2 OF HIS ORDER AN D HENCE THE SAME IS REPRODUCED BELOW:- 2. THE ONLY GROUND OF APPEAL IS REGARDING PENALTY U/S. 158BFA (3) OF RS. 6 78 773/-. IN THE ASSESSMENT U/S. 158BD COM PLETED ON 30-12- 2002 ADDITION OF RS. 23 22 104/- ON ACCOUNT OF SUP PRESSED RECEIPT FOR THE BLOCK PERIOD HAD BEEN MADE AND PENALTY PROCEEDI NGS U/S. 158BFA WERE INITIATED BY ISSUING NOTICE DATED 30-12-2002 F IXING THE HEARING ON 10-01-2003. ON THE DATE OF HEARING NONE ATTENDE D. THE ASSESSING OFFICER KEPT THE PENALTY PROCEEDINGS IN ABEYANCE TI LL DECISION OF APPEAL. CIT (APPEALS) IN ORDER DATED 31-1-2005 GRAN TED RELIEF OF RS. 2 97 793/-. IN VIEW OF FURTHER APPEAL BEFORE ITAT PENALTY PROCEEDINGS WERE KEPT IN ABEYANCE. THE ITAT THROUGH ORDER DATED 15-6-2007 DECIDED THE APPEAL BY GRANTING RELIEF OF RS.11 94 150/-. AS PER THE PENALTY ORDER FURTHER OPPORTUNITIES WERE G RANTED BY ISSUING NOTICE U/S. 158BFA (2) DATED 23-11-2007 WHICH WAS DULY SERVED UPON THE APPELLANT ALONG WITH ORDER GIVING EFFECT T O ITATS ORDER FIXING THE HEARING ON 30-11-2007. NONE ATTENDED THE PROCEEDINGS ON THE DATE OF HEARING NEITHER ANY ADJOURNMENT WAS SOU GHT. LAST AND FINAL OPPORTUNITY WAS GRANTED THROUGH NOTICE DATED 8-4-20 08 FIXING THE HEARING ON 22-4-2008 WHICH WAS NOT AVAILED OF. THE ASSESSING OFFICER THEREFORE HELD THAT APPELLANT HAD INTENTIO NALLY AND WILLFULLY SUPPRESSED HER RECEIPTS TO THE EXTENT OF RS.11 27 9 55/- AND THEREBY CONCEALED HER INCOME. IN THIS REGARD ASSESSING OFF ICER REFERRED TO EVIDENCE COLLECTED DURING THE SEARCH AND THE STATEM ENT RECORDED OF THE APPELLANT HER CASHIER ETC. PENALTY U/S. 158BFA(3) OF RS.6 76 773/- WAS LEVIED. 3. THEREAFTER THE ASSESSEE PREFERRED AN APPEAL BEF ORE THE LD. CIT (A) AGAINST THE PENALTY ORDER PASSED BY THE A.O. AND AF TER CONSIDERING VARIOUS SUBMISSIONS MADE BY THE ASSESSEE LD. CIT (A) HE DI SMISSED THE APPEAL OF THE ASSESSEE AND CONFIRMED THE PENALTY IMPOSED BY T HE A.O. NOW THE ASSESSEE IS FURTHER APPEAL BEFORE US. IT(SS)A NO.41/AHD/2009 . BLOCK PERIOD 1 -4-89 TO 12-10- 99. 3 4. IT IS SUBMITTED BY THE LD. A.R. OF THE ASSESSEE THAT IN THE BLOCK RETURN FILED BY THE ASSESSEE THE ASSESSEE HAS DISCLOSED U NDISCLOSED INCOME OF RS.5.50 LAKHS. IT IS SUBMITTED BY HIM THAT WHEN THE A.O. HAS COMPUTED THE UNDISCLOSED INCOME THEN THE INCOME DECLARED BY THE ASSESSEE SHOULD HAVE BEEN EXCLUDED FROM THE TOTAL UNDISCLOSED INCOME COM PUTED BY HIM IN THE BLOCK PERIOD. IT IS SUBMITTED THAT SINCE THIS WAS N OT DONE ATLEAST PENALTY SHOULD NOT HAVE BEEN IMPOSED ON THIS INCOME OF RS.5 .50 LAKHS DECLARED BY THE ASSESSEE IN THE BLOCK RETURN. AS AGAINST THIS LD. D.R. OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. HE A LSO SUBMITTED THAT IN PARAGRAPH 3.4 OF THE ASSESSMENT ORDER THE A.O. HAS WORKED OUT TOTAL UNDISCLOSED INCOME OF THE ASSESSEE AT RS.28 72 104/ - AND AS PER PARAGRAPH 3.15 OF THE ASSESSMENT ORDER THE A.O. HAS ALREADY ALLOWED RELIEF TO THE ASSESSEE OF RS.5.50 LAKHS BEING UNDISCLOSED INCOME DISCLOSED BY THE ASSESSEE IN THE BLOCK RETURN AND HAS MADE ADDITION OF RS.23 22 104/- AND THEREFORE THIS CONTENTION OF THE ASSESSEE HAS NO M ERIT THAT RELIEF OF RS.5.50 LAKHS BEING UNDISCLOSED INCOME DECLARED BY THE ASSE SSEE IN THE BLOCK RETURN HAS NOT BEEN ALLOWED BY THE A.O. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF THE AUTH ORITIES BELOW. WE FIND THAT IT IS NOTED BY THE LD. CIT (A) IN PARAGRAPH 2 OF HIS ORDER THAT AGAINST UNDISCLOSED INCOME ASSESSED BY THE A.O. OF RS.28 7 2 104/- AFTER MAKING ADDITION OF RS. 23 22 104/- THE LD. CIT(A) HAS ALL OWED RELIEF OF RS. 2 97 793/- AND THE TRIBUNAL HAS ALLOWED A RELIEF OF RS.11 94 150/-. HENCE AS PER THESE OBSERVATIONS OF LD. CIT (A) TOTAL RELIEF ALLOWED BY THE LD. CIT (A) AND BY THE TRIBUNAL IS OF RS.14 91 943/-. ADDIT ION WAS MADE BY THE A.O. IT(SS)A NO.41/AHD/2009 . BLOCK PERIOD 1 -4-89 TO 12-10- 99. 4 OF RS.23 22 104/- AND HENCE THE BALANCE ADDITION L YING CONFIRMED AFTER THE ORDER OF THE TRIBUNAL SHOULD BE ONLY RS.8 30 161/- AS PER THESE OBSERVATIONS OF LD. CIT (A) BUT AS PER PARAGRAPH 9 OF THE PENALT Y ORDER PASSED BY THE A.O. RELIEF ALLOWED BY THE CIT (A) AND BY THE TRIBU NAL IS ONLY RS.11 94 150/- OUT OF TOTAL ADDITION OF RS.23 22 1 50/- AND HENCE THE ADDITION STANDS CONFIRMED TO THE EXTENT OF RS. 11 2 7 955/- ON WHICH THE PENALTY HAS BEEN IMPOSED BY THE A.O. IN THE PARAGRA PH 2 OF THE ORDER OF LD. CIT (A) IT WAS STATED THAT LD. CIT(A) HAS ALLOWED RELIEF OF RS.2 97 793/- AND ON FURTHER APPEAL THE TRIBUNAL AS PER ORDER DA TED 15-6-2007 GRANTED RELIEF OF RS.11 94 150/- BUT THIS WAS NOT CLEAR AS TO WHETHER RELIEF OF RS. 11 94 150/- IS A TOTAL RELIEF INCLUDING THE RELIEF ALLOWED BY THE CIT (A) OR THIS IS A FURTHER RELIEF ALLOWED BY THE TRIBUNAL. T HIS SUBMISSION WAS ALSO MADE BY THE LD. A.R. OF THE ASSESSEE THAT HE HIS MO VING AN APPLICATION OF RECTIFICATION U/S. 154 IN THE PENALTY ORDER AND HEN CE IT WAS HIS REQUEST THAT EITHER THIS APPEAL OF THE ASSESSEE SHOULD BE KEPT I N ABEYANCE TILL THE DISPOSAL OF 154 APPLICATION OR A.O. MAY BE DIRECTED TO CONSI DER THE ULTIMATE POSITION AFTER DECISION ON APPLICATION OF THE ASSESSEE U/S. 154 TO BE FILED BY THE ASSESSEE. AFTER CONSIDERING ALL THE FACTS AND SUBM ISSIONS OF BOTH SIDES WE FEEL THAT IN THE INTEREST OF JUSTICE THIS MATTER S HOULD GO BACK TO THE FILE OF THE A.O. FOR A LIMITED PURPOSE TO DETERMINE THE AMOUNT OF PENALTY AS PER THE APPEAL EFFECT ORDER PASSED BY THE A.O. AFTER GIVING EFFECT TO THE ORDER OF LD. CIT (A) AND THE ORDER OF THE TRIBUNAL IN QUANTUM PR OCEEDINGS. IF THE ASSESSEE FILES ANY RECTIFICATION APPLICATION WITHIN ONE MONTH FROM THE DATE OF THIS TRIBUNAL THEN THE A.O. SHOULD FIRST DISPOSE OF SUCH APPLICATION OF THE ASSESSEE U/S. 154 AND THEREAFTER HE SHOULD DETERMI NE THE PENALTY AMOUNT AFTER CONSIDERING THE INCOME OF THE ASSESSEE AS PER THE APPEAL EFFECT ORDER IT(SS)A NO.41/AHD/2009 . BLOCK PERIOD 1 -4-89 TO 12-10- 99. 5 ALONG WITH 154 ORDER TO BE PASSED BY THE A.O. WITH THESE OBSERVATIONS WE SET ASIDE THE ORDER OF THE LD. CIT (A) AND RESTORE THE MATTER BACK TO THE FILE OF THE A.O. FOR FRESH DECISION. THE A.O. SHOULD PAS S SPEAKING ORDER AS PER THE ABOVE DISCUSSION AFTER PROVIDING REASONABLE OPP ORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT APPEAL OF THE ASSESSEE STANDS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 08 - 07 - 2 011. SD./- SD./- (T. K. SHARMA) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD. DATED: 08 - 07 - 2011. S.A.PATKI. COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS)-IV BARODA. 4. THE CIT CONCERNED. 5. THE DR. ITAT AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT AHMEDABAD. IT(SS)A NO.41/AHD/2009 . BLOCK PERIOD 1 -4-89 TO 12-10- 99. 6 1.DATE OF DICTATION 30 - 06 -2011 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 4 /07 / 2011 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S - -2011. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT - -2011 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S - -2011 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK - -2011. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..