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TMI Blog2015 (10) TMI 2040X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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? - ITA Nos. 484 & 485/Ahd/2011 - - - Dated:- 10-9-2015 - SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER For The Assessee : Shri K.H. Shah, AR For The Revenue : Shri Narendra Singh, Sr. DR. ORDER PER SHRI KUL BHARAT, JUDICIAL MEMBER:- These two appeals by the assessee pertaining to Assessment Years 1994-95 1995-96 are directed against the common order of the Commissioner of Income Tax (Appeals)-XVI ( CIT(A) in short ), Ahmedabad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order was challenged before the ld. CIT(A) who confirmed the penalty and dismissed the appeal on delay as well as on merits. The assessee feeling aggrieved by the order of the ld. CIT(A) is in present appeal. 4. The ld. Counsel for the assessee vehemently argued that the authorities below were not justified in imposing the penalty and confirming the same. The ld. Counsel for the assessee submitted that the additions were made on account of cash credits. He submitted that the details of the creditors were duly given; however, the Assessing Officer disregarded the evidences. He further submitted that the ld. CIT(A) has disregarded the evidences as submitted before him on flimsy grounds. He further submitted that under the facts of the present case the Assessing Officer ought not to have imposed the penalty. He submitted that the order imposing penalty was passed on the back of the assessee; therefore, he had no representation before the Assessing Officer. He submitted that there is gross violation of the principles of natural justice. He further submitted that the quantum proceedings and the penalty proceedings are two different and distinct proceedings; and merely because the qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A Nos. 574 575/Ahd/2007 dated 04.05.2007 had restored the issue to the file of the Assessing Officer for decision afresh. The assessee had given an undertaking to appear before the Assessing Officer and would cooperate with the assessment proceedings. The assessee did not show his appearance before the Assessing Officer; therefore, so far as the issue of quantum is concerned, which has been travelled up to the stage of Tribunal; in the third round of litigation, in ITA Nos. 307 and 308/Ahd/2011, the Co-ordinate Bench of the Tribunal in paragraph 12 of its order has observed as under:- 12. This leaves us to the only issue on the merits of the additions made by the AO for both Asstt.Years 1994-95 and 1995-1996. We find that the learned counsel for the assessee at the outset submitted that he has not prepared on the merits of the additions made by the AO and confirmed by the CIT(A). In reply to the query from the Bench that why he was not submitting any arguments on the merits of the case or why he has not prepared, the learned counsel for the assessee could not give any reasons whatsoever. We find that it is third round of litigation before the Tribunal, and since no reason co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , National Textiles vs. CIT vii. ACIT vs. Manish Organics (India) dated 30.11.2011, ITAT, Ahmedabad Benches viii. 17 ITR 478 (Bom), CIT vs. Mysore Iron and Steel Wroks ix. 212 CTR 42 (Delhi), CIT vs. Atul Jain x. 40 SOT 163 (Mum), Chempure Vs. ITO xi. 347 ITR 639 (All), Mehsons Exports vs. ITO xii. 47 DTR 178 (Chennai) (Trib.), A. Rajendran Vs. ACIT xiii. 48 DTR 298 (Ahd), ITO vs. Computer Force xiv. 24 SOT 393 (Delhi), Shri Vardhaman Overseas vs. ACIT 8. It is transpired from the records that in the quantum proceedings as well as in the penalty proceedings the assessee did not avail the opportunity to represent his case despite having been given opportunity. Even the Coordinate Bench of the Tribunal in the quantum proceedings has recorded the finding that the ld. Counsel for the assessee did not prepare the case on the merits of the additions made by the Assessing Officer. The ld. Counsel for the assessee failed to address the arguments on merit of the case. Therefore, the Co-ordinate Bench of the Tribunal decided the issue against the assessee. The appeal preferred against the order of the Tribunal has been admitted by the Hon ble Gujarat High Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has observed that the Counsel for the assessee could not even controvert on the merit of the additions. We are concerned with confirmation of penalty. 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 in his order at page Nos. 19 to 42 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. The Hon ble Jurisdictional High Court had admitted the issue in tax Appeal Nos. 106 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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