LAXMI DEVI AGARWAL, JAIPUR V. INCOME TAX OFFICER, WARD-3-1, JAIPUR

ITA 1129/JPR/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 8568 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 9 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 01-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PANKAJ KUMAR GARG
• Keywords: Reassessment proceedings; Set aside
• Section: 271(1)(c); 142(1); 133(6); 147; 148; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENC HES B JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRA M SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 1129/JP/2018 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2009-10 LAXMI DEVI AGARWAL, B-5, MANDIR MARG, SUBHASH NAGAR, JHOTWARA, JAIPUR CUKE VS. ITO, WARD-3 (1), JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ADZPA5245R VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SH. PANKAJ KUMAR GARG (CA) JKTLO DH VKSJ LS @ REVENUE BY : MS. CHANCHAL MEENA (ADDL. CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 15/07/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 15/07/2020 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-1, JAIPUR DATED 16.07.2018 WHEREIN HE HAS CONFIRMED TH E LEVY OF PENALTY U/S 271(1)(B) OF THE ACT. 2. DURING THE COURSE OF HEARING, THE LD. AR SUBMITT ED THAT THE ASSESSEE HAS DISPUTED THE SERVICE OF THE NOTICE U/S 142(1) OF TH E ACT IN RESPECT OF WHICH THE PENALTY U/S 271(1)(B) HAS BEEN LEVIED BY THE ASSESS ING OFFICER. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE HAS ALSO CHALLENGED THE SERVICE OF THE NOTICE U/S 148 IN THE QUANTUM PROCEEDINGS AND THE APPEAL IS PE NDING ADJUDICATION BEFORE THE LD. CIT(A). IT WAS ACCORDINGLY SUBMITTED THAT T HE MATTER MAY BE SET ASIDE TO THE FILE OF LD. CIT(A) TO DECIDE THE SAME AFTER ADJUDICATION OF THE APPEAL IN THE QUANTUM PROCEEDINGS. ITA NO. 1129/JP/2018 LAXMI DEVI AGARWAL, JAIPUR VS. ITO, WARD 3(1), JAI PUR 2 3. PER CONTRA, THE LD. DR SUBMITTED THAT THE PRESE NT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE LEVY OF PENALTY U/S 271 (1)(B) OF THE ACT AND IS NOT CONSEQUENTIAL AND DEPENDENT ON OUTCOME OF THE QUANT UM PROCEEDINGS WHICH THE LD. AR CLAIMS TO THE PENDING ADJUDICATION BEFOR E THE LD. CIT(A). ON MERITS, SHE HAS RELIED ON THE FINDINGS OF THE LOWER AUTHORI TIES AND SUBMITTED THAT ONCE THE NOTICE ISSUED U/S 133(6) HAS BEEN RECEIVED BY T HE ASSESSEE WHICH WAS SERVED AT THE SAME ADDRESS AT WHICH THE NOTICE U/S 142(1) HAS BEEN ISSUED BY THE ASSESSING OFFICER, THE CONTENTION OF THE ASSESS EE CANNOT BE ACCEPTED WHERE SHE CLAIMS THAT THAT THE NOTICE U/S 142(1) HAS NOT BEEN RECEIVED BY THE HER DUE TO INCORRECT ADDRESS. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PURSUED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ASSESSEE IS IN APPEAL A GAINST THE ORDER PASSED BY THE ASSESSING OFFICER U/S 147 READ WITH SECTION 144 DATED 08.12.2016 AND APPEAL HAS BEEN FILED BEFORE THE LD. CIT(A) ON 21.0 7.2017. ON THE SAME DATE, TWO MORE APPEALS HAVE BEEN FILED NAMELY, APPEAL AGA INST THE LEVY OF PENALTY U/S 271(1)(C) VIDE ORDER DATED 15.06.2017 AND ANOTH ER APPEAL AGAINST THE LEVY OF IMPUGNED PENALTY U/S 271(1)(B) OF THE ACT VIDE O RDER DATED 15.06.2017. THEREFORE, IT APPEARS THAT THOUGH ALL THE APPEALS H AVE BEEN FILED BEFORE THE LD. CIT(A) ON 21.07.2017, THE APPEAL OF THE ASSESSEE IN CONTEXT OF PENALTY PROCEEDINGS U/S 271(1)(B) HAS BEEN DECIDED BY THE I MPUGNED ORDER AND THE OTHER TWO MATTERS ARE PENDING ADJUDICATION BEFORE T HE LD. CIT(A). 5. THE LD. AR HAS STATED AT THE BAR THAT IN THE QU ANTUM APPEAL, THE ASSESSEE HAS ALSO CHALLENGED THE SERVICE OF THE NOT ICE U/S 148 OF THE ACT. A QUESTION WHICH MAY ARISE FOR CONSIDERATION IS WHERE THE MATTER RELATING TO NON- SERVICE OF NOTICE U/S 148 IS FINALLY DECIDED IN FAV OUR OF THE ASSESSEE RESULTING IN QUASHING THE WHOLE OF THE REASSESSMENT PROCEEDINGS, WHETHER THE IMPUGNED PENALTY PROCEEDINGS ARISING OUT OF THE SAID REASSES SMENT PROCEEDINGS CAN STILL SURVIVE. THEREFORE, WE FIND THAT THE OUTCOME OF THE APPEAL IN THE QUANTUM PROCEEDINGS, WHICH APPARENTLY IS PENDING ADJUDICATI ON BEFORE THE LD CIT(A), ITA NO. 1129/JP/2018 LAXMI DEVI AGARWAL, JAIPUR VS. ITO, WARD 3(1), JAI PUR 3 MAY HAVE A BEARING ON THE IMPUGNED MATTER AND IDEAL LY SPEAKING, APPEAL IN QUANTUM PROCEEDINGS SHOULD HAVE BEEN DECIDED FIRST OR ALONG WITH THE PRESENT PENALTY APPEAL. WE THEREFORE AGREE WITH THE CONTEN TION OF THE LD AR AND DEEM IT APPROPRIATE THAT THE MATTER IS SET ASIDE TO THE FILE OF THE LD. CIT(A) WHO SHALL DECIDE THE SAME AFRESH AS PER LAW TAKING INTO CONSI DERATION THE FINAL OUTCOME OF THE APPEAL IN THE QUANTUM PROCEEDINGS AFTER PROV IDING REASONABLE OPPORTUNITY TO THE ASSESSEE. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 15/07/2020. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 15/07/2020 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- LAXMI DEVI AGARWAL, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-3(1), JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 1129/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR