Assistant Commissioner of Income-tax, V. The Mula Pravara Electric Co.op. Society,

ITA 1006/PUN/2014

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 2279 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2002-2003
• Appeal Filed On: 15-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K RASTOGI
• Assessee Lawyers: S N DOSHI; PIYUSH P BAFNA
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUN E , , !'!! # , $ % BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM / ITA NO. 1006/PN/2014 $& ' !(' / ASSESSMENT YEAR : 2002-03 ASSTT. COMMISSIONER OF INCOME TAX, AHMEDNAGAR CIRCLE, AHMEDNAGAR ....... / APPELLANT )& / V/S. THE MULA PRAVARA ELECTRIC CO-OP. SOCIETY, TAL.-SHRIRAMPUR, DISTT.-AHMEDNAGAR PAN : AAAAT3309A / RESPONDENT ASSESSEE BY : SHRI S.N. DOSHI & SHRI PIYUSH P. BAFNA REVENUE BY : SHRI S.K. RASTOGI / DATE OF HEARING : 09-12-2015 / DATE OF PRONOUNCEMENT : 11-12-2015 * / ORDER PER VIKAS AWASTHY, JM : THE APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE OR DER OF COMMISSIONER OF INCOME TAX (APPEALS)-IT/TP, PUNE DATED 19 -02-2014 PASSED U/S. 271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTE R REFERRED TO AS THE ACT) FOR THE ASSESSMENT YEAR 2002-03. 2 ITA NO. 1006/PN/2014, A.Y. 2002-03 2. THE COMMISSIONER OF INCOME TAX (APPEALS) VIDE IMPUGNED O RDER CONFIRMED THE LEVY OF PENALTY. THE COMMISSIONER OF INCOME TAX (APPEALS) FURTHER REMITTED THE FILE BACK TO ASSESSING OFFICER T O RE- DETERMINE THE QUANTUM OF PENALTY IN VIEW OF THE FACT THAT THE AMOUNT OF ADDITION HAS UNDERGONE CHANGE, CONSEQUENT TO THE ORDER OF TRIBUNAL IN QUANTUM APPEAL AND APPEAL AGAINST THE ORDER PASSED U/S . 154 OF THE ACT. THE REVENUE IS IN APPEAL AGAINST THE DIRECTIONS OF C OMMISSIONER OF INCOME TAX (APPEALS) TO ASSESSING OFFICER FOR RE-DETERMININ G THE QUANTUM OF PENALTY. 3. SHRI S.N. DOSHI AND SHRI PIYUSH P. BAFNA APPEARING ON B EHALF OF THE ASSESSEE SUBMITTED AT THE OUTSET THAT THE ASSESS EE HAD CHALLENGED THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) DATED 19 -02-2014 CONFIRMING LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT FOR ASSESS MENT YEAR 2002-03 IN ITA NO. 457/PN/2014. THE SAME ORDER OF COMM ISSIONER OF INCOME TAX (APPEALS) IS SUBJECT MATTER OF PRESENT APPEAL BY THE REVENUE. THE CO-ORDINATE BENCH OF THE TRIBUNAL VIDE OR DER DATED 30-05-2014 ALLOWED THE APPEAL OF THE ASSESSEE AND DELETE D THE PENALTY. ONCE, THE PENALTY HAS BEEN DELETED, THE PRESENT APPEAL O F THE REVENUE IS NOT MAINTAINABLE. THE LD. AR PLACED ON RECORD A COPY O F THE ORDER OF TRIBUNAL IN ITA NO. 457/PN/2014 (SUPRA). 4. SHRI S.K RASTOGI REPRESENTING THE DEPARTMENT WHEN CO NFRONTED WITH THE SITUATION EXPRESSED IGNORANCE ABOUT THE EARLIER ORDER OF THE TRIBUNAL DELETING PENALTY. THE LD. DR SUBMITTED THAT PENALT Y OF RS.1,62,54,08,326/- WAS LEVIED ON THE ASSESSEE U/S. 271(1)(C) V IDE ORDER DATED 21-03-2012. THE ASSESSEE CARRIED THE MAT TER IN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). THE COMMIS SIONER 3 ITA NO. 1006/PN/2014, A.Y. 2002-03 OF INCOME TAX (APPEALS) VIDE IMPUGNED ORDER AGREED IN PRIN CIPLE THAT THE ASSESSEE HAD FILED INACCURATE PARTICULARS IN THE RETUR N OF INCOME AND UPHELD THE LEVY OF PENALTY. HOWEVER, THE COMMISSIONER OF INCOME TAX (APPEALS) REMITTED THE MATTER BACK TO THE ASSESSING OFFICER FOR RE- DETERMINING THE PENALTY IN VIEW OF REDUCTION IN THE DEMAND IN QUANTUM PROCEEDINGS. 5. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESEN TATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF AUTHORITIES BE LOW. IN THE PRESENT APPEAL THE IMPUGNED ORDER AGAINST WHICH THE R EVENUE HAS FILED APPEAL HAS ALREADY BEEN REVERSED BY THE CO-ORDINATE BE NCH OF THE TRIBUNAL IN ITA NO. 457/PN/2014 (SUPRA) FILED BY THE ASSESSE E. THE TRIBUNAL HAS DELETED THE PENALTY LEVIED ON THE ASSESSEE W ITH THE FOLLOWING OBSERVATIONS: 20. IN THE PRESENT CASE, THE ASSESSING OFFICER HAS LEVIED THE PENALTY U/S. 271(1)(C) ON THE SPECIFIC CHARGE OF FURNISHING INACCURATE PARTICULARS OF INCOME AND THE SAME HAS BEEN ENDORSED BY THE LD. CIT(A) WHILE CONFIRMING THE PENALTY. A PENALTY U/S. 271(1)(C) C AN ONLY BE IMPOSED IF THE MANDATES OF THE SAID SECTIONS ARE FULFILLED AND IT IS NOT AN AUTOMATIC CONSEQUENCE OF AN ADDITION MADE TO THE INCOME OF TH E ASSESSEE IN THE COURSE OF ASSESSMENT PROCEEDINGS. THE FINDING RECO RDED IN THE ASSESSMENT ORDER MAY CONSTITUTE GOOD EVIDENCE IN TH E PENALTY PROCEEDINGS BUT THOSE FINDINGS CANNOT BE REGARDED A S A CONCLUSIVE PROOF FOR THE PURPOSE OF LEVY OF THE PENALTY AND ADDITION BEING MADE TO THE INCOME DOES, BECAUSE OF IMPACT OF EXPLANATION 1, EF FECTIVELY RAISED A PRESUMPTION AGAINST THE ASSESSEE BUT THAT IS ENTIRE LY REBUTABLY PRESUMPTION AND THE SAME OF REBUTTAL IS PROVIDED IN THE EXPLANATION ITSELF. THERE IS NO DISPUTE ABOUT THE FACT THAT TH E ASSESSEE HAS CONSISTENTLY TAKEN THE STAND FROM THE VERY BEGINNIN G THAT THE BENEFIT RECEIVED OR ACCRUED IN CONSEQUENCE OF THE GOVT. RES OLUTION DATED 21-05- 1999 ARE TO BE SPREAD OVER FROM THE 1977-78 TO 1999 -2000 WHICH IS A PERIOD COVERED IN THE SAID GR. THE EXPRESSIONS IN ACCURATE AND PARTICULARS HAVE BEEN EXPLAINED BY THE HON'BLE SU PREME COURT IN THE DECISION OF THE RELIANCE PETROPRODUCTS PVT. LTD. (S UPRA). WE HAVE EXAMINED THE EXPLANATION OF THE ASSESSEE IN THE BAC KDROP OF 4 ITA NO. 1006/PN/2014, A.Y. 2002-03 EXPLANATION-1 OF SEC. 271(1)(C) AND IT CANNOT BE SA ID THAT THE EXPLANATION IS NOT BONAFIDE AS THE ASSESSEE HAS PLACED ALL THE FACTS ON RECORD WHICH ARE REQUIRED FOR COMPUTATION OF THE INCOME. THE ON LY DISPUTE IS THE APPLICABILITY OF SEC. 41(1) OF THE INCOME-TAX ACT. AS RIGHTLY ARGUED BY THE LD. COUNSEL TAX LAW IS SUCH COMPLEX IT CANNOT BE SA ID THAT THERE WAS SOME CONSCIOUS ACT ON THE PART OF THE ASSESSEE FOR NOT CONSIDERING SEC. 41(1) TO THE EXTENT OF BENEFIT ACCRUED VIDE GOVT. R ESOLUTION DATED 21-05- 1999 BY THE REDUCTION OF THE MSEB LIABILITY. WE AR E, THEREFORE, OF THE OPINION THAT THERE WAS NO JUSTIFICATION ON THE PART OF THE ASSESSING OFFICER FOR LEVYING THE PENALTY ON THE ASSESSEE U/S . 271(1)(C) OF THE ACT. WE, ACCORDINGLY, DELETE THE PENALTY LEVIED BY THE A SSESSING OFFICER AND ALLOW THE GROUNDS TAKEN BY THE ASSESSEE. 6. SINCE, THE PENALTY HAS ALREADY BEEN DELETED BY THE TRIBUNAL IN TH E APPEAL BY ASSESSEE THE PRESENT APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON FRIDAY, THE 11 TH DAY OF DECEMBER, 2015. SD/- SD/- ( . . / R.K. PANDA) ( ! ' / VIKAS AWASTHY) #' / ACCOUNTANT MEMBER $ % #' / JUDICIAL MEMBER / PUNE; &# / DATED : 11 TH DECEMBER, 2015 RK *+,$-.'/'(- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ' () / THE CIT(A)-IT/TP, PUNE 4. ' / THE CIT-I, PUNE 5. !*+ %%,- , ,- , . /01 , / DR, ITAT, A BENCH, PUNE. 6. + 2 34 / GUARD FILE. // ! % // TRUE COPY// #5 / BY ORDER, %6 ,1 / PRIVATE SECRETARY, ,- , / ITAT, PUNE