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TMI Blog2014 (12) TMI 1194X X X X Extracts X X X X X X X X Extracts X X X X ..... file of the Ld.CIT(A) on this preliminary issue, we refrain ourselves from adjudicating the appeal on merit.- Decided in favour of Revenue for statistical purposes. - ITA No. 1825 to 1828/PN/2012 - - - Dated:- 9-12-2014 - Ms. Sushma Chowla, Judicial Member and Shri R.K. Panda, Accountant Member Appellant by : Shri Nikhil Pathak Respondent by : Smt. M.S.Verma ORDER PER BENCH : The above 4 appeals filed by the Revenue are directed against the common order dated 21-06-2012 of the CIT(A)-I, Nashik relating to Assessment Years 2004-05 to 2007-08 respectively. Since identical grounds have been taken by the Revenue in all these appeals, therefore, for the sake of convenience, these appeals were heard together and are being disposed of in this common order. ITA No.1825/PN/2012 (A.Y. 2004-05) : 2. Facts of the case, in brief, are that the assessee is an individual and derives income from business, i.e. interest from firm as a partner and dividend income. The original return of income u/s.139(1) of the I.T. Act was filed by the assessee declaring total income of ₹ 3,94,132/-. A search and seizure action u/s.132 of the I.T. Act was conducted in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of ₹ 15 lakhs being the amount invested in FD with JRKD, a Credit Cooperative society, Jalgaon in the return of income filed for A.Y. 2005-06 u/s.153A of the Act instead of the A.Y. 2004-05. The said error was rectified by filing second return u/s.153A of the Act on 27-07-2009 declaring total income at ₹ 19,19,132/- for A.Y. 2004-05. It was argued that all earlier proceedings/matters and the original return of income got abated once proceedings u/s.153A were commenced and consequently default, if any, committed with reference to return of income filed u/s.153A alone was relevant. It was argued that the AO in the order passed u/s.153A has accepted the return of income in toto. Therefore, no default could be said to have been committed within the meaning of section 271(1)(c) of the I.T. Act. Further, relevant show cause notice did not specify the exact nature of alleged default, i.e., whether for concealment of income or for furnishing of inaccurate particulars and therefore such penalty order must be held to be bad in law. Various decisions were also relied on before the Ld.CIT(A). 4. Based on arguments advanced by the assessee, the Ld.CIT(A) deleted the penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the Ld.CIT(A) : The respondent submits that the penalty levied u/s. 271(1)(c) is invalid in law since the asst. order passed u/s 153A is null and void on the ground that no search warrant in the name of the assessee and hence, no search was carried out on the assessee and accordingly, there was no jurisdiction with the learned A.O. to pass the order u/s. 153A for this year. 6.1 Relying on the decision of the Delhi Bench of the Tribunal in the case of Dhiraj Suri Vs. Addl.CIT reported in 98 ITD 187, he submitted that an additional ground regarding validity of assessment which involves the pure legal question not involving any investigation into facts can be admitted for decision in appeal against penalty. Referring to the said decision he submitted that since there was no warrant of authorization us/.132 in the name of the assessee, the block assessment becomes void ab-initio and therefore, the penalty levied cannot be sustained. Referring to the statement of facts filed by the Revenue, he drew the attention of the Bench to Point Nos. 4 and 5 which reads as under : 4. No warrant of authorization was issued in the name of the appellant. 5. The appellant accordingl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he has filed the ground as a respondent. 8.1 The Hon ble Bombay High Court in the case of B.R. Bamasi Vs. CIT reported in 83 ITR 223 has held that the Tribunal can permit the assessee to take a new ground before the Tribunal during argument in answer to an appeal filed by the Revenue. In view of the above, the alternate plea of the assessee is admitted as it does not require any fresh investigation of facts and the issue is a purely legal one. 9. We have considered the rival arguments made by both the sides, perused the order of the CIT(A) and the Paper Book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find in the instant case the assessee has filed his return of income u/s.139(1) declaring total income of ₹ 3,94,132/-. In response to notice u/s.153A, he filed the return declaring total income of ₹ 4,79,132/- on 26-06-2009 which was revised to ₹ 19,79,132/- on 27-07-2009. We find the Assessing Officer accepted the income of ₹ 19,79,132/- but levied penalty of ₹ 5,23,050/-u/s.271(1)(c) of the I.T. Act. We find the Ld.CIT(A) deleted the penalty so levied u/s.271(1)(c) of the I.T. Act. 9.1 It ..... X X X X Extracts X X X X X X X X Extracts X X X X
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