Commissioner Of Income Tax Rajkot -I v. Pravinchandra F Parekh -Huf-....Opponent(S

O/TAXAP/414/2014 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL NO. 414 of 2014 With TAX APPEAL NO. 415 of 2014 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE K.J.THAKER ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ?judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================COMMISSIONER OF INCOME TAX RAJKOT -I....Appellant(s)Versus PRAVINCHANDRA F PAREKH -HUF-....Opponent(s) ================================================================ Appearance: MR PRANAV G DESAI, ADVOCATE for the Appellant(s) No. 1 MR MANISH J SHAH, ADVOCATE for the Opponent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE K.J.THAKER Date : 12/08/2014 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.As common question of law and facts arise in both these appeals, as such, with respect to the same assessee, but different assessment years, and therefore, they are disposed of by this common judgment and order. 2.Feeling aggrieved by and dissatisfied with the impugned judgment and order passed by the Income Tax Appellate Tribunal (hereinafter referred to as ‘the Tribunal’) dated 3.1.2014 in ITA No. 238/Rjt/2013 for A.Y. 2004-05, the Revenue has preferred the present Tax appeal No. 414 of 2014 to consider the following substantial question of law: “Whether the ITAT is justified in law and in fact in cancelling the penalty levied u/s. 271(1)(c) of the Act inspite of the fact that the quantum appeal is kept alive by the same ITAT Bench ?” 3.Tax Appeal No. 415/2014 has been preferred by the Revenue challenging the impugned judgment and order passed by the learned Tribunal dated 3.1.2014 passed in ITA No. 239/Rjt/2013 for A.Y. 2005-06 raising the similar issue/question which is raised in Tax Appeal No. 414/2014. 4.We have heard Mr. Pranav G. Desai learned advocate appearing on behalf of the Revenue and Mr.J.P. Shah learned advocate appearing on behalf of the respondent-assessee and perused the common judgment and order passed by the learned Tribunal deleting the penalty imposed under section 271(1)(c) of the Act. 5.Mr. Pranav G. Desai learned advocate appearing on behalf of the revenue has stated that identical question came to be considered by the Division Bench of this Court in Tax Appeal No. 587 of 2013, in which, a similar order passed by the learned Tribunal deleting penalty under sec. 271(1)(c) of the Act was challenged and the Division Bench of this Court vide its order dated 4.2.2014 has allowed the said appeal and has remanded the matter to the learned Tribunal for a fresh consideration and dispose it of in accordance with law. Mr. J.P. Shah learned advocate appearing on behalf of the respondent-assessee is not in a position to dispute the above, and as such, he is not disputing the same, and therefore, he has requested to pass the similar order which came to be passed by the Division Bench of this Court in Tax Appeal No. 587 of 2013. 6.In view of the above and the order passed by the Division Bench of this Court in Tax Appeal No. 587 of 2013 and considering the facts of the case on hand, when the learned Tribunal while disposing of the appeal upholding the deletion of penalty imposed by the CIT(A) has solely relied upon the order passed by the CIT(A) on quantum of appeal and the same was challenged before the learned Tribunal and the said order was set aside and further direction was issued, the impugned order passed by the learned Tribunal also deserves to be quashed and set aside and the matters are required to be remanded to the learned Tribunal to decide the said appeal afresh in accordance with law and on merits. 7.In view of the above and for the reasons stated above, both the appeals succeed. The impugned judgment and order passed by the learned Tribunal in ITA No. 238/Rjt/2013 for A.Y. 2004-05 and ITA No. 239/Rjt/2013 for A.Y. 2005-06 are hereby quashed and set aside. The matters are remanded to the learned Tribunal for a fresh consideration and dispose it of in accordance with law, after hearing both the sides. The present appeals are allowed to the aforesaid extent. No order as to costs. (M.R.SHAH, J.) mandora O/TAXAP/414/2014 JUDGMENT (K.J.THAKER, J)