B.B. Enterprises, Valsad V. The Dy.CIT.,Cent.Circle-2, Surat

CO 99/AHD/2012

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8262 (ITAT-AHMEDABAD)
• Duration Of Justice: 9 month(s) 23 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 15-03-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 28-02-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 23-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T SANKAR SRDR
• Assessee Lawyers: S D CHHEDA
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE SHRI, A.K.GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER IT(SS)A NO.225, 242 & 243/AHD/2012 ASSESSMENT YEARS :2000-01, 2001- 02 & 2004-05 B.B. ENTERPRISES 402, AMAR CHAMBERS, VALSAD [ PAN NO. ABAPM 1579K ] DCIT, CENTRAL CIRCLE-2, ROM NO. 504, AAYAKAR BHAVAN, MAJURA GATE, SURAT 395001 V/S . V/S . ACIT, CENTRAL CIRCLE-4, SURAT M/S. B.B. ENTERPRISE, 403, CLASIC APPT., OPP. CIRCUIT HOUSE, HALAR ROAD, VALSAD 394248 / APPELLANT .. / RESPONDENT) C.O. NO 98-99/AHD/2012 (A/O ITA NO. IT(SS) A NO. 242- 243/AHD/2012) ASSESSMENT YEARS: 2001-02 &2004-05 B.B. ENTERPRISES PRO. BHARAT P MALDE 402, AMAR CHAMBERS, VALSAD V/S . DCIT, CENTRAL CIRCLE-2, ROM NO. 504, AAYAKAR BHAVAN, MAJURA GATE, SURAT 395001 / APPELLANT .. / RESPONDENT) /BY ASSESSEE SHRI S.D. CHHEDA, AR /BY RESPONDENT SHRI T. SANKAR, SR-DR /DATE OF HEARING 28-02-2013 ! /DATE OF PRONOUNCEMENT 15-03-2013 ' ' ' ' / // / O R D E R PER KUL BHARAT, JUDICIAL MEMBER:- IT(SS)A NO.225,242-43/AHD/12, CO 98-99/AHD/12 A.YS . 00-01, 01-02 & 04-05 B.B. ENTERPRISES V. ACIT CC-4, SRT PAGE 2 OUT OF THIS BUNCH OF FIVE APPEALS AND CROSS OBJE CTIONS (CO), THERE IS ONE APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR (AY) 2000-01 AND THERE ARE TWO APPEALS OF REVENUE FOR AY 2001-02 & 2004-05 AN D TWO CO ARE FILED BY THE ASSESSEE FOR AY 2001-02 AND 2004-05 AND ALL THE SE ARE DIRECTED AGAINST A COMBINED ORDER OF COMMISSIONER OF INCOME-TAX (APPEA LS)-II, AHMEDABAD (CIT(A) FOR SHORT) DATED 06-02-2012. THESE WERE H EARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS COMMON ORDER FOR T HE SAKE OF CONVENIENCE. 2. FIRST WE TAKE UP ASSESSEES APPEAL IN IT(SS)A NO.225/AHD/2012 AND CROSS OBJECTIONS FILED BY THE ASSESSEE BEING CO NO. 98-99/AHD/2012 . 2.1 IN THE APPEAL FILED BY THE ASSESSEE, THE ONLY G ROUND RAISED BY ASSESSEE IS AS UNDER:- IT(SS)A NO. 225/AHD/2012 FOR A.Y.00-01. 1. THE LEARNED CIT(A) HAS ERRED IN LAW & FACTS TO CONFIRM THE PENALTY U/S. 271(1)(C) ON INTEREST INCOME OF RS.4,08,750/-. 2.2 IN THE COS FILED BY ASSESSEE, GROUNDS ARE AS UN DER:- CO NO.98/AHD/2012 FOR AY 01-02. 1. THE LEARNED CIT(A) HAS ERRED IN LAW * IN FACTS NOT CONSIDERING THE FACTS THAT THE PENALTY IS ALSO SNOT LEVIABLE U/S. 2 71(1)(C) WHEN THERE IS NO CLEAR CUT FINDINGS THAT PENALTY IS FOR FURNISHIN G INACCURATE PARTICULARS OR CONCEALMENT OF INCOME. 2. THE LEARNED CIT(A) HAS ERRED IN LAW & IN FACTS F OR NOT MENTIONING THE FACT THAT THERE WAS NO INITIATION OF PENALTY PROCEE DINGS FOR ADDITION PERTAINING TO DISCLOSURE OF RS.710,000/- DURING SUR VEY. 3. THE LEARNED CIT(A) FAILED TO FOLLOW THE RATIO LA ID DOWN BY THE GUJARAT HIGH COURT IN THE CASE OF NEW SORATHIA ENGG. VS. CI T 282 ITR 642, CIT VS MANNU ENGG. 122 ITR 306. CO NO. 99/AHD/2012 FOR AY 04-05. 1. THE LEARNED CIT(A) HAS ERRED IN LAW & IN FACTS NOT CONSIDERING THE FACTS THAT THE PENALTY IS ALSO NOT LEVIABLE U/S/. 2 71(10(C) WHEN THEE IS NO CLEAR CUT FINDINGS THAT PENALTY IS FOR FURNISHING I NACCURATE PARTICULARS OR CONCEALMENT OF INCOME. IT(SS)A NO.225,242-43/AHD/12, CO 98-99/AHD/12 A.YS . 00-01, 01-02 & 04-05 B.B. ENTERPRISES V. ACIT CC-4, SRT PAGE 3 2. THE LEARNED CIT(A) FAILED TO FOLLOW THE RATIO LA ID DOWN BY THE GUJARAT HIGH COURT IN THE CASE OF NEW SORATHIA ENGG. VS. CI T 282 ITR 642, CIT VS MANU ENGG. 122 ITR 306. 3. IN THE COURSE OF HEARING BEFORE US, IT WAS THE M AIN CONTENTION OF THE LD. AR OF THE ASSESSEE THAT NEITHER IN THE ASSESSMENT O RDER NOR IN THE NOTICE ISSUED BY THE ASSESSING OFFICER FOR LEVY OF PENALTY AND NOR IN THE PENALTY ORDER, THERE IS A CLEAR-CUT FINDING BY THE ASSESSIN G OFFICER AS TO WHETHER THE PENALTY IS BEING LEVIED IN RESPECT OF CONCEALMENT O F INCOME OR FOR FURNISHING INACCURATE PARTICULARS OF INCOME. HE DRAWN OUR ATTE NTION TO PARA-5.1 OF THE PENALTY ORDERS OF ALL THE THREE YEARS WHERE IT IS O BSERVED BY THE AO THAT BY VIRTUE OF OPERATION OF EXPLANATION-5, THE ASSESSEE IS TO BE DEEMED TO HAVE CONCEALED PARTICULARS OF INCOME OR FURNISHED INACCU RATE PARTICULARS OF SUCH INCOME. THE OBSERVATION OF THE AO IN ASSESSMENT ORD ER IS ALSO SIMILAR. RELIANCE WAS PLACED BY HIM ON TWO JUDGMENTS OF HON BLE JURISDICTIONAL HIGH COURT RENDERED IN THE CASE OF NEW SORATHIA ENGINEERING CO. V. CIT (2006) 282 ITR 642 (GUJ) AND IN THE CASE OF CIT GUJARAT III V. MANU ENGINEERING WORKS (1980) 122 ITR 306 (GUJ). 4. AS AGAINST THIS, IT WAS SUBMITTED BY LD. DR OF T HE REVENUE THAT IN PARA- 6 OF ALL THE PENALTY ORDERS, IT WAS STATED BY THE AS SESSING OFFICER THAT THE ASSESSEE HAS CLEARLY COMMITTED A DEFAULT U/S. 271(1 ) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) BY CONC EALING THE PARTICULARS OF INCOME AND FURNISHING INACCURATE PARTICULARS OF INC OME AND HENCE, THE OBSERVATION OF THE AO IN PARA-5.1 OF THE PENALTY ORDER CANNOT BE CONSIDERED AS FINAL AND SINCE BOTH THE ALLEGATIONS ARE RAISED BY THE AO IN PARA-6 OF THE PENALTY ORDERS OF ALL THE THREE YEARS, OBJECTION OF THE ASSESSEE IS NOT VALID AND THE JUDGMENTS CITED BY LD. AR OF THE ASSESSEE ARE N OT APPLICABLE IN THE PRESENT CASE. HE PLACED RELIANCE ON THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT RENDERED IN THE CASE OF A.M. SHAH AND COMPANY V. CIT (1999) 238 ITR 415 (GUJ). IT(SS)A NO.225,242-43/AHD/12, CO 98-99/AHD/12 A.YS . 00-01, 01-02 & 04-05 B.B. ENTERPRISES V. ACIT CC-4, SRT PAGE 4 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIALS ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES B ELOW AND THE JUDGMENTS CITED BY BOTH THE SIDES. WE FIND THAT AS PER GROUND RAISED BY THE ASSESSEE BEFORE LD. CIT(A), THIS WAS THE GROUND THAT ASSESSI NG OFFICER HAS ERRED IN FACT AND IN LAW TO LEVY PENALTY U/S. 271(1)(C) OF THE AC T. HENCE, IT IS SEEN THAT THERE IS NO SPECIFIC GROUND BEFORE LD. CIT(A) REGARDING T HE LEGAL OBJECTION WHICH IS BEING TAKEN BY THE ASSESSEE BEFORE US AND THERE IS NO FINDING OF LD. CIT(A) IN ANY OF THE ORDERS ON THIS ASPECT. BEFORE US, THE AS SESSEE HAS FURNISHED A COPY OF ASSESSMENT ORDER AND PENALTY ORDER ALONG WI TH THE ORDER OF LD. CIT(A) BUT THE COPY OF THE NOTICE ISSUED BY THE ASSESSING OFFICER FOR LEVY OF PENALTY IS NOT MADE AVAILABLE BEFORE US BY ANY SIDE. WE FIND T HAT IN THE CASE OF A.M. SHAH AND COMPANY (SUPRA), IT IS HELD BY HONBLE JURISDICTIONAL HIGH COURT THAT BASIS FOR ISSUE OF NOTICE AND FOR IMPOSITION OF PEN ALTY SHOULD BE SAME. IN THE ABSENCE OF NOTICE ISSUED BY THE ASSESSING OFFICER F OR IMPOSITION OF PENALTY, WE CANNOT DECIDE THIS MATTER AND SINCE THERE IS NO DECISION AVAILABLE OF LD. CIT(A) ON THIS ASPECT, WE FEEL IT FIT AND PROPER TO RESTORE THE ENTIRE MATTER BACK TO THE FILE OF LD. CIT(A) FOR DECISION ON THIS ASPE CT OF THE MATTER. HENCE, WE SET ASIDE THE ORDER OF LD. CIT(A) AND RESTORE THE ENTIR E MATTER BACK TO HIS FILE FOR THESE THREE YEARS I.E. AY 2000-01, 2001-02 AND 2004 -05. 5.1 HE SHOULD FIRST DECIDE THE TECHNICAL ASPECT OF THE MATTER AS HAS BEEN ARGUED BEFORE US AS TO WHETHER THERE IS A DEFINITE ALLEGATION OF THE ASSESSING OFFICER OR NOT REGARDING CONCEALMENT OF INCOME OR F URNISHING OF INACCURATE PARTICULARS OF INCOME BY THE ASSESSEE. WHILE DECIDI NG THIS ISSUE, HE SHOULD KEEP IN MIND THE TWO JUDGMENTS OF HONBLE JURISDICT IONAL HIGH COURT CITED BEFORE US BY LD. AR OF THE ASSESSEE. HE SHOULD ALSO KEEP IN MIND THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT CITED BEFORE US BY LD. DR OF THE REVENUE AND AFTER CONSIDERING ALL ASPECTS, LEGAL AN D FACTUAL POSITION AND IN THE LIGHT OF ABOVE DISCUSSION, HE SHOULD PASS NECES SARY ORDER AS PER LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. IT(SS)A NO.225,242-43/AHD/12, CO 98-99/AHD/12 A.YS . 00-01, 01-02 & 04-05 B.B. ENTERPRISES V. ACIT CC-4, SRT PAGE 5 5.2 IN THE RESULT, APPEAL AND COS FILED BY THE ASSE SSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 6. NOW, WE TAKE UP TWO APPEALS FILED BY THE REVENUE IN IT(SS)A NO.242- 243/AHD/2012. 6.1 SINCE FOR THE SAME TWO YEARS, WHILE DECIDING TH E COS FILED BY THE ASSESSEE, WE HAVE RESTORED THE MATTER BACK TO THE F ILE OF LD. CIT(A) FOR DECISION REGARDING TECHNICAL OBJECTION RAISED BY TH E ASSESSEE BEFORE US, THE DECISION OF LD. CIT(A) ON MERIT OF PENALTY CANNOT B E EXAMINED AND DECIDED AT THIS STAGE BECAUSE LD. CIT(A) HAS TO FIRST DECIDE T HE TECHNICAL OBJECTION AND IF HE FINDS THAT THIS TECHNICAL OBJECTION OF ASSESSEE IS VALID THEN NO DECISION IS CALLED FOR REGARDING MERIT OF PENALTY BUT IN CASE, HE FINDS THIS TECHNICAL OBJECTION OF THE ASSESSEE IS NOT VALID THEN HE SHOU LD DECIDED THE MERIT OF THE PENALTY AFRESH AFTER PROVIDING REASONABLE OPPORTUNI TY OF BEING HEARD TO BOTH SIDES. WE ORDER ACCORDINGLY. 7. IN THE RESULT, BOTH THE APPEALS OF REVENUE ARE A LLOWED FOR STATISTICAL PURPOSES. 8. IN COMBINED RESULT, APPEAL OF ASSESSEE AS WELL AS B OTH COS FILED BY ASSESSEE AND BOTH APPEALS FILED BY REVENUE ARE A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- (A.K.GARODIA) (KUL BHARAT) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, *DKP #$%- 15/03/2013 ,-. / ' ' ' ' 0 00 001 01 01 01 21 21 21 21 / COPY OF ORDER FORWARDED TO:- IT(SS)A NO.225,242-43/AHD/12, CO 98-99/AHD/12 A.YS . 00-01, 01-02 & 04-05 B.B. ENTERPRISES V. ACIT CC-4, SRT PAGE 6 1. / APPELLANT 2. / RESPONDENT 3. $.$04 5 / CONCERNED CIT 4. 5- / CIT (A) 5. 1 78 0004, 04!, ,-. / DR, ITAT, AHMEDABAD 6. 8;< => / GUARD FILE. BY ORDER/ ' , /TRUE COPY/ ?/, $ 04!, ,-. / STRENGTHEN PREPARATION & DELIVERY O F ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 13/03 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE NO 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 13/03 4) DATE OF CORRECTION 14/03 5) DATE OF FURTHER CORRECTION - - 6) DATE OF INITIAL SIGN BY MEMBERS 14/03 7) ORDER UPLOADED ON - - 8) ORIGINAL DICTATION PAD-PART HAS BEEN ENCLOSED IN THE FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 15/03