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TMI Blog2009 (7) TMI 1098X X X X Extracts X X X X X X X X Extracts X X X X ..... istry and wrongly served on the petitioner (Hirachand Ebha Wadhel) and the petitioner's (Hirachand Ebha Wadhel) refund is illegally withheld and his (Hirachand Ebha Wadhel) residential flat standing in his name has been illegally attached in spite of the fact that the petitioner (Hirachand Ebha Wadhel) appeal before the Commissioner of Income-tax (Appeals)-XVII is allowed and it has been conclusively decided that `VDIS declaration does not belong to the appellant namely Hirachand Ebha Wadhel'. 3. Similarly the order of the Assessing Officer dated April 12, 2006 levying penalty in the name of Hiralal Ebha Mistry has been wrongly confirmed by the Commissioner of Income-tax (Appeals)-XVII by an order dated November 23, 2006 as in the said VDIS declaration no assets/property/investment has been declared by the declarant, i.e., Hiralal Ebha Mistry and as such there is no concealment of income. 4. The notice, the assessment order and whole proceeding is made in the name of Hiralal Ebha Mistry but illegally for the purpose of collection of taxes and penalty the orders are served on the appellant, i.e., Hirachand Ebha Wadhel and illegal steps are taken by the Assessing Officer by withh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order under section 144 read with section 147 of the Act determining the total income of the said assessee at Rs. 26,70,500. The assessment order was challenged by the present appellant before the learned Commissioner of Income-tax (Appeals) taking the plea that he had never filed any declaration under the VDIS Scheme 1997 and there is a mistaken identity and the staff of the Income-tax Department has forcibly served notice under section 148 upon him in spite of his resistance and protest. The assessee pleaded that the declaration filed by the third party under the VDIS was wrongly considered as filed by him and now the Department is forcing him to pay the tax raised against Shri Hiralal Ebha Mistry. To prove his identity the appellant has filed the school leaving certificate, physical disability certificate, ration card, election card, etc., that he is not Hiralal Ebha Mistry but he is Hirachand Ebha Wadhel. After considering the plea of the assessee and the evidence filed, the learned Commissioner of Income-tax (Appeals) has held that the Assessing Officer has rightly made the assessment under section 144 read with section 147 of the Income-tax Act on Hiralal Ebha Mistry, but, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmed the order of the learned Commissioner of Income-tax (Appeals) vide order dated September 23, 2008 in I. T. A. No. 6906/M/2005. The operative part of the Tribunal order in the quantum appeal reads as under : "9. In our opinion there has been no proof brought out by the Assessing Officer that Hirachand Ebha Wadhel and Hiralal Ebha Mistry are the same person. Also Hirachand Ebha Wadhel has filed affidavit denying filing the VDIS form. In these circumstances, we agree with the opinion of the Commissioner of Income-tax (Appeals) that the assessment in the name of Hiralal Ebha Mistry is to be confirmed while allowing the appeal of the appellant being Hiralchand Ebha Wadhel. Therefore the direction given by the Commissioner of Income-tax (Appeals) to the Assessing Officer to ascertain the identity and whereabouts of the Hiralal Ebha Mistry and serve the assessment upon him is confirmed by us." Subsequently, the Assessing Officer has levied the penalty of Rs.10,41,200 upon Shri Hiralal Ebha Mistry under section 271(1)(c) of the Act vide order dated April 12, 2006. The present appellant challenged the said penalty order before the learned Commissioner of Income-tax (Appeals), but w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... file the appeal to the Tribunal as provided in sub-section (1) or (2) of section 253 which reads as under : "253. (1) Any assessee aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order (a) an order passed by a Deputy Commissioner (Appeals) before the 1st day of October, 1998, or, as the case may be, a Commissioner (Appeals) under section 154, section 250, section 271, section 271A or section 272A ; or (b) an order passed by an Assessing Officer under clause (c) of section 158BC, in respect of search initiated under section 132 or books of account, other documents or any assets requisitioned under section 132A, after the 30th day of June, 1995, but before the 1st day of January, 1997 ; or (ba) an order passed by an Assessing Officer under sub-section (1) of section 115VZC ; or (c) an order passed by a Commissioner under section 12AA or under clause (vi) of sub-section (5) of section 80G or under section 263 or under section 271 or under section 272A or an order passed by him under section 154 amending his order under section 263 or an order passed by a Chief Commissioner or a Director-General or a Director under section 272A. (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uing order of attachment in respect of the abovementioned property taking stand that said property belongs to the appellant. Admittedly no assessment or penalty or demand is raised or enforced against the present appellant namely Shri Hirachand Ebha Wadhel. It is pertinent to note that the present appellant has challenged the penalty order passed against Shri Hiralal Ebha Mistry before the learned Commissioner of Income-tax (Appeals) ; he only stated that he is challenging the said order on behalf of Shri Hiralal Ebha Mistry but while filing the appeal in the Tribunal, he has filed the appeal on his name. Moreover, the appellant cannot be treated as an "assessee" within the meaning of section 2(7) of the Act and there is no demand against the present appellant has been raised. What we find that he is only disputing the title of the flat which is attached by the Tax Recovery Officer as well as his refund is withheld by the Revenue. In our opinion, if he is disputing the ownership or title of the flat which is attached by the Tax Recovery Officer or his refund is withheld towards recovery of demand against Shri Hiralal Ebha Mistry, then the said dispute cannot be the subject-matter o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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