Smt. Champaben Amrubhai Desai, Ahmedabad V. The Principal Commissioner of Income Tax-1, Ahmedabad

ITA 1005/AHD/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0181 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-10-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 29-07-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 21-04-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SU RENDRA KUMAR
• Assessee Lawyers: S K KABRA
• Section: 263

Judgement Text

I.T.A. N O. 1005 /AHD/201 6 ASSESSMENT YEAR: 20 1 1 - 12 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH, AHMEDABAD [CORAM: R.P. TOLANI, J.M. AND PRAMOD KUMAR , A . M . ] I.T.A. NO. 1 005 /AHD/201 6 ASSESSMENT YEAR: 20 1 1 - 12 SMT. CHAMPABEN AMRUTBHAI DESAI .. . . APPELLANT C - 141, KRISHNADHAM SOCIETY , NEAR TAKSHILA SOCIETY, ODHAV, AHMEDABAD 382 415 . [PAN: A FHPD 8546 N ] VS. PR. COMMISSIONER OF INCOME TAX - 1 , AHMEDABAD. ... . . RESPONDENT APPEARANCES BY: S.K. KABRA FOR THE APPELLANT SURENDRAKUMAR FOR THE RESPONDE NT DATE OF CONCLUDING THE HEARING : 2 9 .07.2016 DATE OF PRONOUNC ING THE ORDER : 27 . 10.2016 O R D E R PER PRAMOD KUMAR , AM : 1. BY WAY OF THIS APPEAL, THE ASSESSEE APPELLANT HAS CHALLENGED CORRECTNESS OF LEARNED C IT(A) S ORDER DATED 17 TH FEBRUARY, 201 6 , P ASSED BY THE PCIT - 1, AHMEDABAD, UNDER SECTION 263 OF THE INCOME TAX ACT, 1961, FOR THE ASSESSMENT YEAR 201 1 - 12. 2. GRIEVANCES RAISE D BY THE APPELLANT ARE A S UNDER : - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, LD. PRINCIPA L COMMISSIONER HAS ERRED IN PASSING ORDER U/S 263 OF THE ACT. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, LD. PRINCIPAL COMMISSIONER HAS ERRED IN PASSING ORDER U/S 263 OF THE ACT OBSERVING THAT ASSESSING OFFICER HAS FAILED TO INITIATE PENALTY U/S 221(1) OF THE ACT. I.T.A. N O. 1005 /AHD/201 6 ASSESSMENT YEAR: 20 1 1 - 12 PAGE 2 OF 3 3. IT IS PRAYED THAT ABOVE ORDER PASSED BY PRINCIPAL COMMISSIONER OF INCOME TAX MAY PLEASE BE QUASHED/SET ASIDE. 3 . TO ADJUDICATE ON THIS APPEAL, ONLY A FEW MATERIAL FACTS NEED TO BE TAKEN NOTE OF. THERE IS NO DISPUTE THAT WHILE FILING THE INCOME TAX RETURNS THE ASSESSEE HAD PAID ONLY RS.5,00,000/ - AS AGAINST HIS T A X AND INTEREST LIABILITY OF RS.14,21,220/ - . THE BALANCE MOUNT OF RS.9,21,220/ - WAS SUBSEQUENTLY PAID ON 27.04.2013. O N THESE FACTS, HOWEVER, T HE A SSESSING OFFICER DID NOT INITIATE ANY PENALTY PROCEEDINGS UNDER SECTION 221(1) OF THE ACT. ON THESE FACTS, LEARNED PCIT HAS SUBJECTED THE ASSESSMENT, FRAMED BY THE A SSESSING OFFICER, TO REVISION PROCEEDINGS UNDER SECTION 263 ON THE FOLLOWING BASIS : - I HA VE CONSIDERED THE FACTS OF THE C A SE AND THE SUBMISSION OF THE ASSESSEE. IT IS CLEAR THAT WHILE FINALISING THE ASSESSMENT, THE AO HAS NOT INITIATED ANY ACTION FOR LEVY OF PENALTY UNDER SECTION 221(1) OF THE ACT. MOREOVER, THERE IS NOTHING ON RECORD TO SHO W THAT THE AO IS SATISFIED WITH THE REASONS GIVEN BY THE ASSESSEE FOR DELAY IN PAYMENT OF OUTSTANDING TAX. THEREBY, THE AO HAS FAILED TO APPLY T HE PROVISIONS OF THE ACT CORRECTLY . 4. THE ASSESSEE IS AGGRIEVED AND I S IN APPEAL BEFORE US. 5 . WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION 6. W E FIND THAT HON BLE DELHI HIGH COURT, IN T HE CASE OF ACIT VS. SUDERSH A N TALKI E S [(1993) 200 ITR 153 (DEL)], HAS H ELD T HAT THE PENALTY PROCEEDINGS UNDER SECTION 273(B) ARE INDEPENDENT OF THE ASSESSMENT PROCEEDINGS, AS UNDOUBTEDLY THE PROCEEDINGS UNDER SECTION 221(1) ALSO A RE, AND THAT THE COMMISSIONER HAD NO JURISDICTION UNDER SECTION 263 TO DIRECT THE A SSESSING OFFIC ER TO INITIATE PROCEEDINGS UNDER SECTION 273(B). BY THE SAME LOGIC, THE COMMISSIONER IS ALSO D ENUDED OF THE POWERS UNDER SECTION 263 TO I.T.A. N O. 1005 /AHD/201 6 ASSESSMENT YEAR: 20 1 1 - 12 PAGE 3 OF 3 INITIATE PENALTY PROCEEDINGS UNDER SECTION 221(1). A WE HOLD SO, WE MAY ALSO MENTION THAT HON BLE DELHI HIGH COURT S JUDGEMENT IN THE CASE OF S UDERSHAN T ALKIES ( SUPRA ) WAS NOTED, WITH CONCURRENCE, BY HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. PARMANAND PATEL [(2005) 278 ITR 3 (GUJARAT)]. I N VIEW OF THESE DISCUSSIONS, AS ALSO BEARING IN MIND ENTIRETY OF THE CASE, WE VACATE THE IMPUGNED REVISION ORDER. 7 . IN THE RESULT, THE APPEAL IS PARTLY A LLOWED IN THE TERMS INDICATED A BOVE. PRONOUNCED IN THE OPEN COURT TODAY ON 27 TH DAY OF OCTOBER , 2016. SD/ - SD/ - R.P. TOLANI PRAMOD KUMAR (JUD ICIAL MEMBER) (ACCOUNTANT MEMBER) DATED: 27 TH DAY OF OCTOBER , 2016. COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD