Gopal S. Pandith, Mangalore V. JCIT, Panaji

ITA 1090/BANG/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7279 (ITAT-BANGALORE)
• Duration Of Justice: 2 year(s) 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 31-01-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 23-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R RAMESH
• Assessee Lawyers: R CHANDRASHEKAR
• Keywords: Opportunity of being heard
• Section: 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBERAN D SHRI LALIET KUMAR, JUDICIAL MEMBER IT A NOS. 1084, 1085, 1090 TO 1097/BANG/2015 ASSESSMENT YEAR S : 200 4 - 05 TO 2009 - 10 SHRI GOPAL S. PANDITH, PROP: M/S. PANDIT DEVELOPERS, EMPORIUM, COMMERCIAL COMPLEX, III FLOOR, OLD PUMP WELL ROAD, KANKANADY, MANGALORE 575 002. PAN: AEQPP 4615Q VS. THE JOINT COMMISSIONER OF INCOME TAX, CENTRAL RANGE, PANAJI, GOA. APPELLANT RESPONDENT IT A NO. 1060/BANG/2015 ASSESSMENT YEAR : 20 07 - 08 SMT. RAJESHWARI PANDITH, W/O SHRI GOPAL S. PANDITH, PROP: M/S. PANDIT DEVELOPERS, EMPORIUM, COMMERCIAL COMPLEX, III FLOOR, OLD PUMP WELL ROAD, KANKANADY, MANGALORE 575 002. PAN: AEPPP 4638G VS. THE JOINT COMMISSIONER OF INCOME TAX, CENTRAL RANGE, PANAJI, GOA. APPELLANT RESPONDENT ASSESSEE BY : SHRI R. CHANDRASHEKAR, ADVOCATE REVENUE BY : SHRI B.R. RAMESH, JCIT (DR) DATE OF HEARING : 1 6 . 1 1 .201 7 DATE OF PRONOUNCEMENT : 21 .1 1 .2017 O R D E R PER BENCH; ALL THESE APPEALS ARE FILED BY THE ASSESSEE I.E. SH RI GOPAL S. PANDITH FOR ASSESSMENT YEARS 2004-05 TO 2009-10 IN RESPECT OF P ENALTY IMPOSED BY THE AO U/S. 271D OF THE IT ACT AND BY THE SAME ASSESSEE FOR ASSESSMENT YEARS 2006-07 TO 2009-10 IN RESPECT OF PENALTY IMPOSED BY THE AO U/S. 271E OF THE IT ITA NOS. 1084, 1085, 1090 TO 1097 & 1060/BANG/2015 PAGE 2 OF 3 ACT AND ONE REMAINING APPEAL IS FILED BY A DIFFEREN T BUT CONNECTED ASSESSEE SMT. RAJESHWARI PANDITH FOR ASSESSMENT YEAR2007-08 IN RESPECT OF PENALTY IMPOSED BY THE AO U/S. 271D OF THE IT ACT. ALL THE SE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON O RDER FOR THE SAKE OF CONVENIENCE. 2. IN ALL THESE ELEVEN APPEALS, THE GROUND NO. 1 RA ISED BY THE ASSESSEE IS IDENTICAL WHICH READS AS UNDER. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OU GHT TO HAVE HELD THE ORDER OF PENALTY IS BARRED BY LIMITATION. 3. IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT THIS ISSUE WAS RAISED BEFORE CIT (A) ALSO THAT PENALTY ORDER PASSED BY THE AO IN ALL THE SE CASES IS BARRED BY LIMITATION BUT THIS ASPECT HAS NOT BEEN DECIDED BY LD. CIT (A) AND THEREFORE, IN THE INTEREST OF JUSTICE, THE MATTER SHOULD BE RESTO RED BACK TO THE FILE OF CIT (A) FOR FRESH DECISION AFTER DECIDING THIS TECHNICAL AS PECT. THE LD. DR OF REVENUE SUPPORTED THE ORDERS OF AUTHORITIES BELOW. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT AS PER HIS ORDER DATED 11.03.2015, THE LD. CIT(A) HAS DECIDED FIVE APPEALS IN RESPECT OF ASSESSMENT YEARS 2004-05 AND 2006-07 TO 2009-10 IN RESPECT OF PENALTY IMPOSED BY THE AO U/S. 271D OF THE IT ACT AND TWO APPEALS FOR ASSE SSMENT YEARS 2008-09 AND 2009-10 IN RESPECT OF PENALTY IMPOSED BY THE AO U/S . 271E OF IT ACT IN THE CASE OF THE ASSESSEE SHRI GOPAL S. PANDITH. IN THI S ORDER, THERE IS NO FINDING OF CIT (A) REGARDING THIS TIME BARRING ASPECT. REMAIN ING THREE APPEALS IN THE CASE OF SHRI GOPAL S. PANDITH OUT OF WHICH ONE APPE AL IS REGARDING PENALTY IMPOSED BY THE AO U/S. 271D FOR ASSESSMENT YEAR 200 5-06 AND THE REMAINING TWO APPEALS ARE IN RESPECT OF PENALTY IMPOSED BY TH E AO U/S. 271E OF THE IT ACT FOR ASSESSMENT YEARS 2006-07 AND 2007-08 AND ONE AP PEAL IN THE CASE OF SMT. RAJESHWARI PANDITH FOR ASSESSMENT YEAR 2007-08 IN RESPECT OF PENALTY IMPOSED BY THE AO U/S. 271D OF THE IT ACT WAS DECID ED BY CIT(A) AS PER HIS ORDER DATED 11.03.2015 AND IN THIS ORDER ALSO, THER E IS NO DECISION REGARDING TIME BARRING ASPECT. AS PER THE GROUNDS OF APPEAL RAISED BEFORE THE CIT(A), IT IS SEEN THAT IN ALL THESE ELEVEN APPEALS, THE TIME BAR RING ASPECT WAS RAISED BY THE ASSESSEE AS PER GROUND NO. 1 OF THE APPEALS IN ALL THESE APPEALS WHICH IS NOT ITA NOS. 1084, 1085, 1090 TO 1097 & 1060/BANG/2015 PAGE 3 OF 3 DECIDED BY CIT(A). UNDER THESE FACTS, WE FEEL IT P ROPER TO RESTORE THE ENTIRE MATTER BACK TO THE FILE OF CIT (A) FOR FRESH DECISI ON. THE LD. CIT (A) SHOULD DECIDE THIS TECHNICAL ASPECT AS TO WHETHER THE PENA LTY ORDERS PASSED BY THE AO IS TIME BARRED OR NOT AND AFTER DECIDING THIS TECHN ICAL ASPECT, IF IT IS FOUND BY LD. CIT (A) THAT PENALTY ORDER IS NOT TIME BARRED, HE S HOULD DECIDE THE ISSUE ON MERIT AFRESH AND IF IT IS FOUND THAT THE PENALTY OR DERS ARE TIME BARRED THEN NOTHING REMAINS TO BE DECIDED. WE WANT TO MAKE IT CLEAR THAT SUFFICIENT OPPORTUNITY OF BEING HEARD SHOULD BE PROVIDED TO BO TH SIDES AND LEARNED CIT (A) SHOULD PASS A REASONED AND SPEAKING ORDER. 5. IN THE RESULT, ALL THE ELEVEN APPEALS FILED BY T HE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- SD/- (LALIET KUMAR) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 21 ST NOVEMBER, 2017. /MS/ COPY TO: 1. APP ELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.