M/s. Padmavati Developers, Valsad v. The ACIT.,C.C.4,, Surat

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH AHMEDABAD BEFORE SHRI A. K. GARODIA ACCOUNTANT MEMBER AND SHRI KUL BHARAT JUDICIAL MEMBER I.T.(SS). NO.676 677 & 678 / AHD/2011 (ASSESSMENT YEAR 2000-01 2001-02 & 2002-03) PADMAVATI DEVELOPERS 404 AMAR CHAMBERS VALSAD VS. ACIT CC-4 SURAT PAN/GIR NO. : AAGEP8374A (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI S D CHHEDA AR RESPONDENT BY: SHRI VINOD TANWANI SR. DR DATE OF HEARING: 28.02.2012 DATE OF PRONOUNCEMENT: 28.02.2012 O R D E R PER SHRI A. K. GARODIA AM:- ALL THESE THREE APPEALS ARE ASSESSEES APPEALS WHI CH ARE DIRECTED AGAINST THE CONSOLIDATED ORDER OF LD. CIT(A) VALSAD DATED 30.09.2011 FOR THE ASSESSMENT YEARS 2000-01 2001-02 & 2002-03. A LL THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY W AY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. IN ALL THESE TH REE APPEALS ONE ADDITIONAL GROUND WAS RAISED BY THE ASSESSEE BUT IN THE COURSE OF HEARING BEFORE US LD. A.R. OF THE ASSESSEE DID NOT PRESS T HIS ADDITIONAL GROUND AND HENCE THE SAME WAS REJECTED IN ALL THE THREE Y EARS AS UNADMITTED. 2. GROUND NO.1 WHICH IS IDENTICAL IN ALL THE THREE YEARS IS AS UNDER: THE LD. CIT(A) HAS ERRED IN LAW & FACTS NOT TO FOL LOW THE JURISDICTIONAL HIGH COURT JUDGMENTS IN DELETING THE PENALTY. I.T.A.NO.676 677 678 /AHD/2011 2 3. IT IS SUBMITTED BY THE LD. A.R. THAT THE WRITTEN SU BMISSION FILED BEFORE LD. CIT(A) AS PER LETTER DATED 25.11.2010 IS APPEARING ON PAGES 6- 8 OF THE PAPER BOOK. HE FURTHER SUBMITTED THAT IN THE SAID WRITTEN SUBMISSIONS RELIANCE WAS PLACED BY THE ASSESSEE ON TWO JUDGMENTS OF HONBLE JURISDICTIONAL HIGH COURT BEING THE JUDGMEN T RENDERED IN THE CASE OF CIT VS MANN ENGINEERING AS REPORTED IN 122 ITR 306 AND IN THE CASE OF NEW SORATHIA AS REPORTED IN 282 ITR 642 (GU J.). IT IS SUBMITTED BY HIM THAT IN THE ORDER OF LD. CIT(A) THESE JUDGM ENTS WERE NOT TAKEN NOTE OF BY LD. CIT(A) WHEREAS THE TECHNICAL ISSUE I S SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THESE TWO JUDGEMENTS OF H ONBLE GUJARAT HIGH COURT CITED BEFORE LD. CIT(A). AT THIS JUNCTURE IT WAS POINTED OUT BY THE BENCH THAT IN THE ABSENCE OF ANY FINDING OF LD. CIT(A) ON THIS ASPECT AS TO WHETHER IN THE FACTS OF THE PRESENT CASE THE SE JUDGMENTS OF HONBLE GUJARAT HIGH COURT ARE APPLICABLE OR NOT THE ISSUE HAS TO BE RESTORED BACK TO THE FILE OF LD. CIT(A) FOR A FRESH DECISION AND IN THAT SITUATION EVEN THE MERIT HAS TO BE RESTORED BACK BECAUSE THE MERIT CANNOT BE DECIDED IN ADVANCE. IN REPLY LD. A.R. HAD NOTHING TO SAY ALT HOUGH HE SUBMITTED THAT THE MATTER MAY BE DECIDED AT TRIBUNAL LEVEL. 4. AS AGAINST THIS IT IS SUBMITTED BY THE LD. D.R. THAT THIS GROUND IS NOT SPECIFIC GROUND AND THEREFORE NO ADJUDICATION IS CALLED FOR. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW. IT WAS VERY MUCH SUBMITTED BEFORE LD. CIT(A) THAT AS PER T HESE TWO JUDGMENTS OF HONBLE GUJARAT HIGH COURT PENALTY IS NOT SUSTA INABLE BECAUSE THE A.O. HAS NOT GIVEN CLEAR CUT FINDING IN THE ASSESSM ENT ORDER AS TO WHETHER THE PENALTY IS BEING LEVIED FOR CONCEALMENT OR FURN ISHING OF INACCURATE PARTICULARS OF INCOME. IF LD. CIT(A) WOULD HAVE DE CIDED THE ISSUE ON THIS I.T.A.NO.676 677 678 /AHD/2011 3 ASPECT BY CONSIDERING THESE TWO JUDGMENTS OF HONBL E GUJARAT HIGH COURT WE WOULD HAVE DECIDED THE ISSUE HERE BUT IN THE PRESENT CASE LD. CIT(A) HAS NOT TAKEN NOTE OF THESE JUDGEMENTS IN HI S ORDER. UNDER THESE FACTS IT IS NOT CLEAR AS TO WHETHER IN THE FACTS O F THE PRESENT CASE THESE JUDGMENTS ARE RELEVANT OR NOT. WE THEREFORE FEEL IT FIT AND PROPER THAT THIS MATTER SHOULD GO BACK TO THE FILE OF LD. CIT(A) TO DECIDE THIS ASPECT AND HENCE WE SET ASIDE THE ORDER OF LD. CIT(A) IN ALL THE THREE YEARS AND RESTORE THE MATTER BACK TO HIS FILE FOR A FRESH DEC ISION AFTER CONSIDERING THE APPLICABILITY OF THESE TWO JUDGEMENTS OF HONBLE GU JARAT HIGH COURT IN THE FACTS OF THE PRESENT CASE HE SHOULD PASS NECE SSARY ORDER AS PER LAW AS PER ABOVE DISCUSSION AFTER PROVIDING ADEQUATE OPPOR TUNITY OF BEING HEARD TO BOTH THE SIDES. REGARDING THE SUBMISSION OF L D. D.R. WE FEEL THAT ALTHOUGH THE GROUND RAISED BY THE ASSESSEE IS NOT H APPILY WORDED BUT THE SAME CALLS FOR DECISION PARTICULARLY IN THE LIGHT O F SPECIFIC SUBMISSION BEFORE LD. CIT(A). 6. REGARDING GROUND NO.2 I.E. ON MERIT WE WOULD L IKE TO OBSERVE THAT ONCE WE ARE RESTORING BACK THE MATTER TO THE F ILE OF LD. CIT(A) FOR A FRESH DECISION REGARDING SUSTAINABILITY OF PENALTY ORDER AS PER TWO JUDGEMENTS OF HONBLE GUJARAT HIGH COURT THE ISSUE ON MERIT CANNOT BE DECIDED AT THIS JUNCTURE AND HENCE THE ISSUE ON ME RIT IS ALSO RESTORED BACK TO THE FILE OF LD. CIT(A) AND IF HE FINDS THAT THE ASSESSEE HAS NO CASE ON TECHNICAL ASPECT THEN HE SHOULD DECIDE THE ISSUE ON MERIT AFRESH. 7. WE WOULD LIKE TO TAKE NOTE OF THIS FACT THAT THI S COMBINED ORDER OF LD. CIT(A) IS FOR FIVE ASSESSMENT YEAS INCLUDING AS SESSMENT YEAR 2003- 04 AND 2004-05. ON QUERY BY THE BENCH IT WAS SUBM ITTED BY THE LD. A.R. THAT NO APPEAL HAS BEEN FILED BY THE ASSESSEE FOR T HE REMAINING TWO YEARS I.E. FOR ASSESSMENT YEAR 2003-04 & 2004-05. HE ALS O SUBMITTED THAT NO I.T.A.NO.676 677 678 /AHD/2011 4 APPEAL HAS BEEN FILED BY THE REVENUE ALSO FOR THESE TWO YEARS ALTHOUGH PART RELIEF WAS ALLOWED BY LD. CIT(A) IN THOSE TWO YEARS. ON THIS LD. D.R. ALSO COULD NOT OBJECT BY SHOWING THAT ANY APPE AL HAS BEEN FILED BY THE REVENUE FOR THESE TWO YEARS. 8. IN THE RESULT ALL THE APPEALS OF THE ASSESSEE A RE ALLOWED FOR STATISTICAL PURPOSES. 9. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (KUL BHARAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR AHMEDABAD BY ORDER 6. THE GUARD FILE AR ITAT AHMEDABAD 1. DATE OF DICTATION 28/2 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 28/2.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 28/2 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.29/2 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 29/2/2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .