Income Tax Appellate Tribunal - AhmedabadB.B. Enterprises, Valsad vs Assessee on 6 February, 2012IN THE INCOME TAX APPELLATE TRIBUNAL
            AHMEDABAD BENCH "D" AHMEDABAD

          Before Shri, A.K.Garodia, Accountant Member and
                   Shri Kul Bharat, Judicial Member

                         IT(SS) A No.225, 242 &
                             243/ Ahd/2012
                    Assessm ent Years :2000-01, 2001-
                              02 & 2004-05

      B.B. Enterprises                   V/s.   ACIT, Central Circle-4,
      402, Am ar Cham bers,                     Surat
      Valsad
      [PAN No. ABAPM 1579K]

      DCIT, Central Circle-2,            V/s.   M/s. B.B. Enterprise,
      Rom No. 504, Aaya kar                     403, Clasic Appt., Opp.
      Bhavan, Majura Gate,                      Circuit House, Halar
      Surat - 395001                            Road, Valsad - 394248

           अपीलाथȸ/Appellant             ..       ू×यथȸ/Respondent)

                       C.O. No 98-99/Ahd/2012
                    (a/o ITA No. IT(SS) A No. 242-
                            243/Ahd/2012)
                 Assessm ent Years: 2001-02 &2004-05

      B.B. Enterprises                   V/s.   DCIT, Central Circle-2,
      Pro. Bharat P Malde                       Rom No. 504, Aaya kar
      402, Am ar Cham bers,                     Bhavan, Majura Gate,
      Valsad                                    Surat - 395001

           अपीलाथȸ/Appellant             ..       ू×यथȸ/Respondent)



       आवेदक कȧ ओर से/By Assessee                Shri S.D. Chheda, AR
       राजःव कȧ ओर से/By Respondent              Shri T. Sankar, SR-DR
       सुनवाई कȧ तारȣख/Date of Hearing           28-02-2013
       घोषणा कȧ तारȣख/Date of Pronouncement       15-03-2013



                               आदे श/O R D E R


PER Kul Bharat, Judicial Member:-IT(SS)A No.225,242-43/Ahd/12, CO 98-99/Ahd/12 A.Ys. 00-01, 01-02 & 04-05
B.B. Enterprises v. ACIT CC-4, SRT                                         Page 2

       Out of this bunch of five appeals and Cross Objections (CO), there is
one appeal of the assessee for Assessment Year (AY) 2000-01 and there are
two appeals of Revenue for AY 2001-02 & 2004-05 and two CO are filed by
the assessee for AY 2001-02 and 2004-05 and all these are directed against a
combined order of Commissioner of Income-tax (Appeals)-II, Ahmedabad
('CIT(A)' for short) dated 06-02-2012. These were heard together and are
being disposed of by way of this common order for the sake of convenience.2.     First we take up assessee's appeal in IT(SS)A No.225/Ahd/2012 and
Cross Objections filed by the assessee being CO No. 98-99/Ahd/2012.2.1    In the appeal filed by the assessee, the only ground raised by assessee
is as under:-"IT(SS)A No. 225/Ahd/2012 for A.Y.00-01."1. The learned CIT(A) has erred in law & facts to confirm the penalty
       u/s. 271(1)(c) on interest income of Rs.4,08,750/-."2.2    In the COs filed by assessee, grounds are as under:-CO No.98/Ahd/2012 for AY 01-02."1. The learned CIT(A) has erred in law * in facts not considering the
       facts that the penalty is also snot leviable u/s. 271(1)(c) when there is
       no clear cut findings that penalty is for furnishing inaccurate particulars
       or concealment of income.2. The learned CIT(A) has erred in law & in facts for not mentioning the
       fact that there was no initiation of penalty proceedings for addition
       pertaining to disclosure of Rs.710,000/- during survey.3. The learned CIT(A) failed to follow the ratio laid down by the Gujarat
       High Court in the case ofNew Sorathia Engg. Vs. CIT282ITR 642, CIT
       Vs Mannu Engg.122 ITR 306."CO No. 99/Ahd/2012 for AY 04-05."1. The learned CIT(A) has erred in law & in facts not considering the
       facts that the penalty is also not leviable u/s/. 271(10(c) when thee is no
       clear cut findings that penalty is for furnishing inaccurate particulars or
       concealment of income.IT(SS)A No.225,242-43/Ahd/12, CO 98-99/Ahd/12 A.Ys. 00-01, 01-02 & 04-05
B.B. Enterprises v. ACIT CC-4, SRT                                         Page 32. The learned CIT(A) failed to follow the ratio laid down by the Gujarat
       High Court in the case ofNew Sorathia Engg. Vs. CIT282 ITR 642, CIT
       Vs Manu Engg. 122 ITR 306."3.     In the course of hearing before us, it was the main contention of the Ld.
AR of the assessee that neither in the assessment order nor in the notice
issued by the Assessing Officer for levy of penalty and nor in the penalty
order, there is a clear-cut finding by the Assessing Officer as to whether the
penalty is being levied in respect of concealment of income or for furnishing
inaccurate particulars of income. He drawn our attention to para-5.1 of the
penalty orders of all the three years where it is observed by the AO that by
virtue of operation of Explanation-5, the assessee is to be deemed to have
concealed particulars of income or furnished inaccurate particulars of such
income. The observation of the AO in assessment order is also similar.
Reliance was placed by him on two judgments of Hon'ble jurisdictional High
Court rendered in the case ofNew Sorathia Engineering Co. v. CIT(2006)
282 ITR 642 (Guj) and in the case of CIT Gujarat III v. Manu Engineering
Works (1980) 122 ITR 306 (Guj).4.     As against this, it was submitted by Ld. DR of the Revenue that in para-
6 of all the penalty orders, it was stated by the Assessing Officer that the
assessee has clearly committed a default u/s. 271(1)© of theIncome-tax Act,
1961(hereinafter referred to as 'the Act') by concealing the particulars of
income and furnishing inaccurate particulars of income and hence, the
observation of the AO in para-5.1 of the penalty order cannot be considered
as final and since both the allegations are raised by the AO in para-6 of the
penalty orders of all the three years, objection of the assessee is not valid and
the judgments cited by Ld. AR of the assessee are not applicable in the
present case. He placed reliance on the judgment of Hon'ble jurisdictional
High Court rendered in the case ofA.M. Shah And Company v. CIT(1999)
238 ITR 415 (Guj).IT(SS)A No.225,242-43/Ahd/12, CO 98-99/Ahd/12 A.Ys. 00-01, 01-02 & 04-05
B.B. Enterprises v. ACIT CC-4, SRT                                         Page 45.     We have considered the rival submissions, perused the materials on
record and gone through the orders of authorities below and the judgments
cited by both the sides. We find that as per ground raised by the assessee
before Ld. CIT(A), this was the ground that Assessing Officer has erred in fact
and in law to levy penaltyu/s. 271(1)(c)of the Act. Hence, it is seen that there
is no specific ground before Ld. CIT(A) regarding the legal objection which is
being taken by the assessee before us and there is no finding of Ld. CIT(A) in
any of the orders on this aspect. Before us, the assessee has furnished a
copy of assessment order and penalty order along with the order of Ld. CIT(A)
but the copy of the notice issued by the Assessing Officer for levy of penalty is
not made available before us by any side. We find that in the case ofA.M.
Shah And Company(supra), it is held by Hon'ble jurisdictional High Court that
basis for issue of notice and for imposition of penalty should be same. In the
absence of notice issued by the Assessing Officer for imposition of penalty,
we cannot decide this matter and since there is no decision available of Ld.
CIT(A) on this aspect, we feel it fit and proper to restore the entire matter back
to the file of Ld. CIT(A) for decision on this aspect of the matter. Hence, we set
aside the order of Ld. CIT(A) and restore the entire matter back to his file for
these three years i.e. AY 2000-01, 2001-02 and 2004-05.5.1    He should first decide the technical aspect of the matter as has been
argued before us as to whether there is a definite allegation of the Assessing
Officer or not regarding concealment of income or furnishing of inaccurate
particulars of income by the assessee. While deciding this issue, he should
keep in mind the two judgments of Hon'ble jurisdictional High Court cited
before us by Ld. AR of the assessee. He should also keep in mind the
judgment of Hon'ble jurisdictional High Court cited before us by Ld. DR of the
Revenue and after considering all aspects, legal and factual position and in
the light of above discussion, he should pass necessary order as per law after
providing reasonable opportunity of being heard to both sides.
 IT(SS)A No.225,242-43/Ahd/12, CO 98-99/Ahd/12 A.Ys. 00-01, 01-02 & 04-05
B.B. Enterprises v. ACIT CC-4, SRT                                           Page 5

5.2    In the result, appeal and COs filed by the assessee are allowed for
statistical purposes.6.     Now, we take up two appeals filed by the Revenue in IT(SS)A No.242-
243/Ahd/2012.6.1    Since for the same two years, while deciding the COs filed by the
assessee, we have restored the matter back to the file of Ld. CIT(A) for
decision regarding technical objection raised by the assessee before us, the
decision of Ld. CIT(A) on merit of penalty cannot be examined and decided at
this stage because Ld. CIT(A) has to first decide the technical objection and if
he finds that this technical objection of assessee is valid then no decision is
called for regarding merit of penalty but in case, he finds this technical
objection of the assessee is not valid then he should decided the merit of the
penalty afresh after providing reasonable opportunity of being heard to both
sides. We order accordingly.7.     In the result, both the appeals of Revenue are allowed for statistical
purposes.8.     In combined result, appeal of assessee as well as both COs filed
by assessee and both appeals filed by Revenue are allowed for
statistical purposes.Order pronounced in Open Court on the date mentioned
 hereinabove at caption page.Sd/-                                                   Sd/-
    (A.K.Garodia)                                           (Kul Bharat)
  (Accountant Member)                                    (Judicial Member)
Ahmedabad,

*Dkp
Ǒदनांकः-   15/03/2013       अहमदाबाद ।
आदे श कȧ ूितिलǒप
         ूितिलǒप अमेǒषत / Copy of Order Forwarded to:-IT(SS)A No.225,242-43/Ahd/12, CO 98-99/Ahd/12 A.Ys. 00-01, 01-02 & 04-05
B.B. Enterprises v. ACIT CC-4, SRT                                               Page 61. अपीलाथȸ / Appellant2. ू×यथȸ / Respondent3. संबंिधत आयकर आयुƠ / Concerned CIT4. आयकर आयुƠ- अपील / CIT (A)5. ǒवभागीय ूितिनिध, आयकर अपीलीय अिधकरण, अहमदाबाद / DR, ITAT, Ahmedabad6. गाड[ फाइल / Guard file.By order/आदे श से,
                                     /True Copy/
                                                                           उप/सहायक पंजीकार
                                                                       आयकर अपीलीय अिधकरण,
                                                                                  अहमदाबाद ।Strengthen preparation & delivery of orders in the ITAT1) date of taking dictation                                    13/032) direct dictation by Member straight on                      No
computer/laptop/dragon dictate3) date of typing & draft order place before Member            13/034) date of correction                                          14/035) date of further correction                                  --6) date of initial sign by Members                             14/03
7) order uploaded on                                           --8) original dictation pad-part has been enclosed in the file Yes9) final order and 2nd copy send to Bench Clerk on             15/03