GHEVARCHAND GAMANDIRAM JAIN, MUMBAI V. INCOME TAX OFFICER 15(2)(4), MUMBAI

ITA 1163/MUM/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 55304 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 26-09-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 20-02-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K NAYAK
• Assessee Lawyers: D H SAVE

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, G, MUMBAI BEFORE SHRI R V EASWAR, PRESIDENT AND SHRI J SUDHAKAR REDDY, ACCOUNTANT MEMBER I T A NO: 1163/MUM/2009 (ASSESSMENT YEAR: 2001-02) GHEVARCHAND GAMANDIRAM JAIN, MUMBAI APPELLANT (PAN: AABPJ6664L) VS INCOME TAX OFFICER 15(2)(4), MUMBAI RESPONDENT ASSESSEE BY: MR D H SAVE REVENUE BY: MR A K NAYAK DATE OF HEARING: 26 TH SEPTEMBER 2011 DATE OF PRONOUNCEMENT: 26 TH SEPTEMBER 2011 O R D E R R V EASWAR, PRESIDENT: THIS IS AN APPEAL BY THE ASSESSEE AND IT IS DIRECTE D AGAINST THE LEVY OF PENALTY OF ` 3,17,023/- IMPOSED UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961. THE APPEAL IS DELAYED BY 875 DAYS. AN AFFIDAVIT AND AN APPLICATION FOR CONDONATION OF DEL AY HAVE BEEN FILED. WE HAVE PERUSED THE SAME ALONG WITH THE RECORD OF T HE CIT(A) WHICH WAS MADE AVAILABLE BY THE LEARNED DR. IT IS SEEN T HAT THE ORDER DATED 21.07.2006 PASSED BY THE CIT(A) WAS NEVER SERVED ON THE ASSESSEE 2 ITA NO: 1163/MUM/2009 AND WAS RETURNED UNSERVED BY THE POSTAL AUTHORITIES . THEREAFTER AT THE ASSESSEES BEHEST HIS COUNSEL MADE AN APPLICATION T O THE CIT(A) FOR A CERTIFIED COPY OF THE ORDER, WHICH WAS SUPPLIED TO HIM AND AN APPEAL TO THE TRIBUNAL WAS FILED ALONG WITH THE SAID ORDER ON 20.02.2009. SINCE THE ORIGINAL ORDER OF THE CIT(A) WAS NOT SERVED ON THE ASSESSEE, THERE CAN BE NO QUESTION OF ANY DELAY. THERE IS NO DELAY FROM THE DATE ON WHICH A CERTIFIED COPY OF THE ORDER WAS RECEIVED BY THE ASSESSEE. IN THESE CIRCUMSTANCES WE ADMIT THE APPEAL FOR ADJUDIC ATION. 2. AT THE TIME OF THE HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE STATED THAT SEVERAL ADDITIONS AND DISALLOWANCE WHIC H WERE THE SUBJECT MATTER OF PENALTY HAVE BEEN DELETED ON FURTHER APPE AL TO THE CIT(A) / ITAT BUT THE ASSESSING OFFICER HAS NOT MODIFIED THE PENALTY ORDER ON THE BASIS OF THE APPELLATE ORDERS. THE ASSESSEE TH EREFORE SUBMITTED THAT THE MATTER MAY BE RESTORED TO THE ASSESSING OF FICER WITH A DIRECTION TO HIM TO PASS A FRESH ORDER OF PENALTY A FTER TAKING NOTE OF THE APPELLATE ORDERS AND RE-DETERMINE THE PENALTY. THE RE IS NO OBJECTION FROM THE REVENUE. WE THEREFORE SET ASIDE THE ORDER S OF THE DEPARTMENTAL AUTHORITIES AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER, WHO WILL RE-DETERMINE THE QUANTU M OF PENALTY IN THE LIGHT OF THE APPELLATE ORDERS, AFTER GIVING DUE OPP ORTUNITY TO THE ASSESSEE. THE ASSESSEE IS AT LIBERTY TO FILE APPEA L AGAINST THE FRESH ORDER, IF HE IS SO ADVISED. WITH THESE DIRECTIONS THE APPEAL OF THE 3 ITA NO: 1163/MUM/2009 ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURP OSES WITH NO ORDER AS TO COSTS. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF THE HEARING ON 26 TH SEPTEMBER 2011. SD/- SD/- (J SUDHAKAR REDDY) (R V EASWAR) ACCOUNTANT MEMBER PRESIDE NT MUMBAI, DATED 26 TH SEPTEMBER 2011 SALDANHA COPY TO: 1. GHEVARCHAND GAMANDIRAM JAIN C/O D H SAVE ADVOCATE 307 CHURCHGATE CHAMBERS SIR VITHALDAS THAKARSI ROAD MUMBAI 400 020 2. ITO 15(2)(4), MUMBAI 3. CIT-15, MUMBAI 4. CIT(A)-XV, MUMBAI 5. DR G BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI