SHRI VIPULKUMAR VASANTRAY SHAH,BOTAD vs. THE INCOME TAX OFFICER,WARD-1(3), BHAVNAGAR

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ITA 3386/AHD/2014Status: DisposedITAT Ahmedabad31 October 2017AY 2008-094 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal observed that the quantum appeal related to these additions had already been restored back to the Assessing Officer (AO) for fresh adjudication. Therefore, the penalty appeal was also restored to the AO to be decided along with the quantum appeal.

What were the facts?

The assessee's appeal was against a penalty levied under Section 271(1)(c) of the Income Tax Act. The penalty was based on additions made for unexplained cash credit and short-term capital gains.

What were the issues?

Whether penalty under Section 271(1)(c) can be sustained when the underlying additions are restored back to the AO for fresh consideration. The legality of the penalty levied by the AO and confirmed by the CIT(A).

Which sections of the Income-tax Act were involved?

Section 271(1)(c),Section 68

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “ C ” BENCH, AHMEDABAD

Before: SHRI N.K. BILLAIYA & SHRI MAHAVIR PRASAD

For Respondent: Shri Prasoon Kabra, Sr.D.R
Hearing: 31/10/2017

आदेश / O R D E R

PER SHRI MAHAVIR PRASAD, JUDICIAL MEMBER : This is an appeal by the assessee against the order of the Commissioner of Income Tax(Appeals)-XX, Ahmedabad, dated 26/09/2014 for the Assessment Year (AY) 2008-09, on the following Grounds: i. On the facts and in the circumstances of the case, the learned CIT(A) erred in upholding the legality of the Assessing Officer's order passed u/s.271(1)(c) of the I.T. Act levying penalty of Rs.3,42,560/-. ii. Without prejudice to the aforesaid ground, on the facts and in the circumstance of the case, the learned CIT(A) erred in confirming

ITA No. 3386/Ahd/2014 Shri Vipulkumar Vasantray Shah vs. ITO Asst.Year –2008-09 - 2 - penalty levied by the Assessing Officer u/s.271(1)(c) of the I.T. Act with reference to the addition confirmed by the CIT(A) in quantum appeal.

2.

The relevant facts as culled out from the materials on record are as under:- In this case, the assessee Shri Vipulkumar Vasantbhai Shah is assessed to tax in the status of individual. He is employee of State Govt. He is rendering his services in RTO office, Navsari. His source of income is Salary, Bank Interest and Capital Gain.

2.2 Penalty was levied u/s.271(1)(c) of the Act of Rs.3,42,560/- on account of unexplained cash credit u/s.68 of Rs.6,90,000/- and cash credit treated as short term capital gain of Rs.10,27,680/- totaling to Rs.17,61,940/-.

3.

Against the said order assessee preferred first statutory appeal before the ld. CIT(A) who refused to give any relief to the assessee.

4.

We have gone through the relevant record and impugned order. So far addition of Rs.3,55,000/- for cash in hand of mother-in-law is concerned. In ITA No.771/Ahd/2012 vide Para 13, Page No.7 our Bench restored back to ld. AO in appellant’s quantum proceedings.

4.2 So far addition on account of negative cash balance of Rs.3,35,000/- is concerned. Issue restored back to ld. AO by the Hon’ble

ITA No. 3386/Ahd/2014 Shri Vipulkumar Vasantray Shah vs. ITO Asst.Year –2008-09 - 3 - ITAT in appellant’s quantum proceedings bearing ITA No.771/Ahd/2012 vide Para 13, Page No.7.

4.3 So far addition of Rs.10,71,940/- for short term capital gain in case family members of appellant is concerned. Issue restored back to the ld. AO by the Hon’ble ITAT in appellant’s quantum proceedings bearing ITA No.771/Ahd/2012 vide Para 13, Page No.7.

5.

we have observed that in quantum appeal in ITA No.771/Ahd/2012 our bench has already restored the matter back to the file of the AO who decide this matter denovo after giving opportunity of being heard to the appellant. Therefore, we set aside the order of the CIT and restored this matter back to the file of the AO who will decide this matter along with quantum appeal.

6.

In the result appeal filed by the assessee is allowed for statistical purpose.

This Order pronounced in Open Court on 31/10/2017

Sd/- Sd/- एन.के. �ब�लैया महावीर �साद (लेखा सद�य) (�या�यक सद�य) ( MAHAVIR PRASAD ) ( N.K. BILLAIYA ) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad; Dated 31/10/2017 Priti Yadav, sr.PS

ITA No. 3386/Ahd/2014 Shri Vipulkumar Vasantray Shah vs. ITO Asst.Year –2008-09 - 4 -

आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent. 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त(अपील) / The CIT(A)-XX, Ahmedabad. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 5. 6. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER, स�या�पत ��त //True Copy//

उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील�य अ�धकरण, अहमदाबाद / ITAT, Ahmedabad 1. Date of dictation 25/10/2017 (dictation-pad 3 pages attached at the end of this appeal-file) 2. Date on which the typed draft is placed before the Dictating Member …31/10/2017 3. Other Member… 4. Date on which the approved draft comes to the Sr.P.S./P.S…………….. 5. Date on which the fair order is placed before the Dictating Member for pronouncement…… 6. Date on which the fair order comes back to the Sr.P.S./P.S……. 7. Date on which the file goes to the Bench Clerk………………… 8. Date on which the file goes to the Head Clerk…………………………………... 9. The date on which the file goes to the Assistant Registrar for signature on the order…………………….. 10. Date of Despatch of the Order………………

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