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2015 (10) TMI 2040 - ITAT AHMEDABADPenalty under sec. 271(1)(c) - Held that:- The additions have been confirmed upto to the stage of the Tribunal; however, the appeals against the quantum are pending for adjudication before the Hon’ble High Court of Gujarat. There is no dispute with regard to the fact that at both stages, i.e., quantum as well as penalty proceedings, the assessee remained absent. However, before the CIT(A), in penalty proceedings, the assessee had filed the evidences which have been considered at length and has given a finding that the appellant has failed to discharge its onus of proving the identity of these persons, genuineness of transactions and creditworthiness; therefore, on merit none of the creditors are allowable. We have given our thoughtful consideration to the facts of the case. One of the grounds admitted by the Hon’ble Jurisdictional High Court is with regard to the service of notice u/s 148 which goes to the very root of the reopening of assessment proceedings. Therefore, under these facts, we hereby set aside the orders of the authorities below on the issue of levying penalty. The Assessing Officer is directed to decide the issue afresh after the outcome of the question Nos. 4 & 6 admitted by the Hon’ble jurisdictional High Court i.e. (4) Whether in the facts and circumstances of the case, learned ITAT has erred in law in not appreciating the fact that, admittedly notice u/s 148 dated 29.05.2001 was served on different address than shown in the return and is not valid service? (6) Whether in the facts and circumstances of the case, learned ITAT has erred in law in not appreciating the facts that, there is no tangible material for AY 1994-95 vide notice dated 29.05.2001 which is beyond 4 years from end of the relevant AY and the said notice is bad in law?
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