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TMI Blog2019 (9) TMI 867X X X X Extracts X X X X X X X X Extracts X X X X ..... turn filed u/s 139 of the Act and all consequential provisions would apply. The Ld. D.R. has not rebutted this fact. I therefore, respectfully following judgement of Hon ble Gujarat High Court rendered in the case of Kirit Dahyabhai Patel Vs. ACIT [ 2015 (1) TMI 201 - GUJARAT HIGH COURT ] and other case laws as relied by the assessee, direct the A.O. to delete the penalty. The appeal of the assessee is allowed. - Shri Kul Bharat, Judicial Member For the Appellant : Shri P.F. Jain, A.R. For the Respondent : Shri N.K. Goel, Sr.D.R. ORDER PER KUL BHARAT, J.M: These three appeals by three different assessees are directed against three different orders of the Ld. CIT(A)-11, Ahmedabad dated 2.1.2018, 20.12.2017 2.1.2018 respectively. 2. First I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be levied and the case of the assessee is covered by the following decisions: 1. The above appeals are covered by the order of ITAT, in their own case vide ITA No.4.5.6/Ahd/2018 pronounced on 19/07/2019 by ITAT SMC Bench. The facts are same. 2. Kirit Dahyabhai Patel (2017) 80 Taxman.com.162(Gujarat) 3. Neeraj Jindal (2017) 79 Taxmann. Com. 96 (Delhi), 393 ITR 1(Delhi) :- The Hon'ble High Court refered to decision of Gujarat High Court in the case of Kirit Dahyabhai Patel (Para.20) In this case, the decision of Prem Arora V/s. Dy.CIT 149 TTJ (Delhi) 590 has also been mentioned at para-5. This case was relied upon by the assesses before lower authorities. 4. ITAT, Ahmedabad Bench-C ITA No.2662/A/2017,2669, 2670,2671/A/2017 A.Y.2009-10, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, reliance is placed on the judgement of the Hon ble jurisdictional High Court rendered in the case of Kirit Dahyabhai Patel Vs. ACIT (2017) 80 taxamann.com 162 (Gujarat). The Hon ble High Court has decided the issue as follows: 13. Considering the facts and circumstances of the case and also considering the decisions relied upon by learned senior advocate for the appellant, we are of the considered opinion that the view taken by the Tribunal is erroneous. The CIT(A) rightly held that it is not relevant whether any return of income was filed by the assessee prior to the date of search and whether any income was undisclosed in that return of income. In view of specific provision of section 153A of the I.T. Act, the return of income filed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the period of six assessment years pending on the date of initiation of the search under Section 132 or requisition under Section 132A, as the case may be, shall abate. [Ref to Memorandum accompanying the Finance Bill, 2003] Section 153A opens with a non-obstanle clause relating to normal assessment procedure covered by Sections 139, 147, 148, 149, 151 and 153 in respect of searches made after May 31, 2003. The sections, so excluded, relate to returns, assessment and reassessment provisions. However, the provisions that are saved are those under Section 153B and 153C, so that these three ^Sections 153A, 153B and 153C are intended to be a complete code for postsearch assessments. Considering that the non-obstante clause under Section. !53A^ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 139 of the Act and all consequential provisions would apply. The Ld. D.R. has not rebutted this fact. I therefore, respectfully following judgement of Hon ble Gujarat High Court rendered in the case of Kirit Dahyabhai Patel Vs. ACIT (supra) and other case laws as relied by the Ld. Counsel for the assessee, direct the A.O. to delete the penalty. The appeal of the assessee is allowed. 10. Now I take up ITA No.527/Ahd/2018 for the A.Y. 2012-13 and the assessee has raised following grounds of appeal: 1. The learned CIT(A) has erred in law and on facts in upholding penalty of ₹ 51,290/- levied u/s 271(1)(c) without properly appreciating the facts of the appellant. 2. The learned CIT(A) has erred in law and on facts in not considering the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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