SHRI DILIPSINH LAXMANSINH RATHOD,AHMEDABAD vs. THE INCOME TAX OFFICER,WARD-2, GODHRA

The solitary issue in the appeal filed by the assessee is confirming the penalty of Rs. 11,89,880/- u/s. 271(1)(c) of the act by the ld. CIT(A) in the aforesaid order.

During the course of the appellate proceedings, the ld. counsel has submitted that the Co-ordinate Bench of the ITAT vide order No. 2768-2772/Ahd/2008 dated 08/02/2016 has set aside the assessment for the year under consideration on the basis of which the aforesaid penalty was levied to the file of the assessing officer. He prayed that order be set aside to the file of the assessing officer on the ground that unless the income is determined, penalty cannot be imposed upon the assessee. The finding of the Co-ordinate Bench of the ITAT are reproduced as under:- “8. We have duly considered the rival contentions and gone through the material available on record. We find that proceedings under the Prevention of Corrupt Act, 1988 were initiated against the assessee for having Disproportionate Assets worth Rs.50,49,590/- in his possession. It was the case of the prosecuting agency that during the course of investigation, it came to the notice of the department that assessee has made investments in his name as well as in the names of his dependents and the evidences demonstrating the Disproportionate Assets had come to the light. The ld. Special Judge has considered these allegations and acquitted the assessee. On due consideration of the judgment of Special Judge, ACB, particularly paragraph, 57 & 74, we are of the view that before the Court of Special Judge, ACB, assessee has produced evidences demonstrating his position about alleged unaccounted assets. In all assessment years, the income has been computed on the basis of Panchnama and other details collected from the A.C.B. Considering the judgment of Special Court of A.C.B. which has analyzed the evidences, we deem it appropriate that all these additions deserve to be set aside to the file of Assessing Officer for re- adjudication because at the time of assessment proceedings neither the Assessing Officer was possessing the clinching evidences which could exhibit the unexplained investments exclusively in the hands of assessee nor the assessee could file his explanation with regard to the allegations posed before him on the strength of Panchnama of ACB. It is pertinent to observe that prosecution in the criminal case failed to establish the possession of disproportionate assets by the assessee, meaning thereby the evidence collected by the prosecution was not of that nature which could satisfy the court about unexplained investment by the accused. Bearing this fact in mind, when we perused the assessment orders then it revealed that AO has relied upon the Panchnama/charge sheet prepared by prosecution. On due consideration of these facts we are of the view that it is for the ld. AO to first lay his hands on an evidence which shows unexplained investment by the assessee. The ld. AO thereafter supposed to call upon the explanation of the assessee qua that investment or any assets possessed by him. If the AO is not satisfied with the explanation of the assessee then addition in the hands of assessee can be made. The ld. Assessing Officer shall decide the issues in accordance with law keeping in view the decision of the Special Judge, ACB.”

In the result, the appeal of the assessee is allowed for statistical purposes.