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TMI Blog2013 (8) TMI 516X X X X Extracts X X X X X X X X Extracts X X X X ..... owing decision of Late Harshadrai Contractor Through L/H. Paresh Contractor v. Income-Tax Officer [2013 (7) TMI 823 - ITAT AHMEDABAD] - Decided in favour of assessee. - ITA. No.2125, 2126, 2127/Ahd/2010, ITA. No.2132, 2133, 2134/Ahd/2010 - - - Dated:- 19-7-2013 - Shri D. K. Tyagi And A. K. Garodia,JJ. For the Petitioner : Shri Mehul R. Shah For the Respondent : Shri R.K. Vohra, Sr.DR ORDER Per Bench: Out of this bunch of six appeals, three appeals are filed by Shri Paresh Contractor and remaining three appeals are filed by a different assessee i.e. Devendra Contractor. Both are brothers. These appeals are directed against separate orders of the learned CIT(A)-II, Surat all dated 31.3.2010 for three different assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es are in further appeal before us. 2. It was submitted by the learned AR of the assessee that this issue is now squarely covered in favour of the assessee by the Tribunal decision rendered in the case of Shri Paresh Contractor, legal heir of late Harshadrai Contractor in ITA No.2124/Ahd/2010 order dated 14.6.2013. He submitted that late Harshadrai Contractor was the father of these two assessees and in that case also, penalty was imposed in respect of same land under similar facts for A.Y.2002- 2003, and for the subsequent years, penalty has been imposed in the case of these two assesses because on the death of late Harshadrai Contractor, his two sons i.e. the present two assessees had inherited the same property. He submitted a copy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the AO under section 148, and the said notice was issued after application filed by these two assessees under section 273A of the Act. Under similar facts, the penalty was deleted by the Tribunal in the case of late Harshadrai Contractor through legal heir Shri Paresh Contractor in A.Y.2002- 2003 as per para 6 of the Tribunal order and for the sake of ready reference, the same is reproduced below: "6. After hearing both the parities and perusing the record, we find that in the case of assessee's brother, Shri Balvantrai S. Contractor, who was coowner of this land having 73% right of ownership, on identical facts, the penalty imposed by the A.O. and sustained by the Id. CIT(A), has been deleted by the Hon'ble ITAT vide its order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the Department and notice under s. 148 of the Act was issued long after the settlement petition to the CIT. This would show that no enquiry was made with reference to the declaration filed u/s 273A of the Act by the assessee and no question was asked by the ITO as to the basis he is going to adopt for distributing the total income declared in the computation of income filed before CIT. Surat and determination made by the Assessing Officer for the respective assessment years. The Explanation was acting as a rule of evidence. It is always open to the assessee to prove that the failure to return the correct income did not arise from any fraud or any gross or willful neglect on this part. In the present case, the Assessing Officer did not de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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