Mr. D. Yousuff Sharief, Bangalore V. ACIT, Bangalore

ITA 1265/BANG/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 51243 (ITAT-BANGALORE)
• Duration Of Justice: 8 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 18-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUSAN THOMAS GOSE
• Assessee Lawyers: V SRINIVASAN
• Section: 153A; 132

Judgement Text

PAGE 1 OF 4 ITA NOS.1263 TO 1265/BANG/2010 1 IN THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH B BEFORE SHRI GEORGE GEORGE K, J.M. AND SHRI A MOHAN ALANKAMONY, A.M ITA NOS.1263 TO 1265/BANG/2010 (ASSESSMENT YEARS 2004-05 TO 2006-07) SHRI D YOUSUFF SHARIEF, #22/1, KAVERIAPPA LAYOUT, MILLER TANK BUND ROAD, BANGALORE-46. - APPELLANT (PAN : AMZPS5132L) VS THE ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2(3), BANGALORE. - RESPONDENT APPELLANT BY : SHRI V SRINIVASAN, C.A. RESPONDENT BY : SMT. SUSAN THOMAS GOSE, JCIT ORD ER PER BENCH : THESE THREE APPEALS INSTITUTED BY THE ASSESSEE AR E DIRECTED AGAINST THE CONSOLIDATED ORDER OF LEARNED CIT(A)-VI, BANGALORE DATED 19/10/2010. THE ASST. YEARS CONCERN ED ARE 2004- 05 TO 2006-07. THE ORDER OF THE CIT(A) EMANATES FR OM THE ORDER PASSED U/S 271(1)(C) OF THE ACT. 2. THE ASSESSEE IS AN INDIVIDUAL. THERE WAS A SE ARCH CONDUCTED U/S 132 OF THE ACT IN THE RESIDENTIAL PRE MISES OF THE PAGE 2 OF 4 ITA NOS.1263 TO 1265/BANG/2010 2 ASSESSEE ON 14.9.2006. PURSUANT TO THE SEARCH, ASS ESSMENTS WERE COMPLETED AND CONSEQUENT TO THE COMPLETION OF THE A SSESSMENTS, PENALTY U/S 271(1)(C) OF THE ACT WAS IMPOSED FOR THE ABOVE SAID THREE YEARS AMOUNTING TO RS.15,92,426/-, RS.24,31,09 3 AND RS.58,79,948/- RESPECTIVELY. 3. AGGRIEVED BY THE ORDER OF PENALTY U/S 271(1)(C) O F THE ACT, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFO RE THE FIRST APPELLATE AUTHORITY. 4. THE FIRST APPELLATE AUTHORITY NOTICED THAT THE ASSESSEE HAD NOT PAID ADMITTED TAX AS PER THE INCOM E DECLARED IN THE RETURN OF INCOME FILED U/S 153A OF THE ACT FOR THE ABOVE SAID THREE ASST. YEARS AND ACCORDINGLY, BY VIRTUE OF CLAUSE (A) OF SUB- SECTION (4) OF SECTION 249 OF THE ACT; THE APPEALS WERE DISMISSED IN LIMINI. 5. BEING AGGRIEVED BY THE DISMISSAL OF THE APPEALS BY THE FIRST APPELLATE AUTHORITY, THE ASSESSEE IS IN APPEAL BEFORE US. 6. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT ADMITTED TAX HAS BEEN PAID FOR THE ASST. YEARS 2004- 05 TO 2006- 07 AND PRAYED FOR A DIRECTION FOR DISPOSAL OF THE AP PEALS BEFORE THE CIT(A) ON MERITS. THE ASSESSEES COUNSEL FILED A PAPER BOOK CONTAINING THE DETAILS OF TAX PAYMENT AND CHALLANS F OR HAVING PAID THE ADMITTED TAX FOR THE CONCERNED ASST. YEARS. HE ALSO REFERRED TO THE ORDER OF THE TRIBUNAL IN THE CASE OF SRI K S ATISH KUMAR IN PAGE 3 OF 4 ITA NOS.1263 TO 1265/BANG/2010 3 ITA NO.1176/BANG/2010 DATED 13.5.2011, A COPY OF WHI CH IS PLACED ON RECORD. 7. THE LEARNED DR ON THE OTHER HAND SUPPORTED THE ORDER OF THE CIT(A). 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE HONBLE JURISDICTIONAL HIG H COURT IN THE CASE OF D KOMALAKSHI V DCIT (292 ITR 99) AT THE REQ UEST OF THE ASSESSEES COUNSEL, DIRECTED THAT THE ADMITTED TAX BE PAID WITHIN FOUR WEEKS AND IF THE SAME IS PAID AS DIRECTED, THE CIT(A) SHALL CONSIDER THE APPEALS ON MERITS. THE RELEVANT FIND ING OF THE HONBLE HIGH COURT READS AS FOLLOWS:- IN THE NORMAL COURSE, WE WOULD NOT HAVE CONSIDERED SUCH REQUEST FROM THE ASSESSEE. HOWEVER, TAKING INTO CONSIDERATION THE FACTS AND CIRCUMSTANCES OF THE CASE, WE DEEM IT PROPER TO ACCEPT THE SUBMISSION MADE BY LEARNED COUNSEL FOR THE ASSESSEES. WE, THEREFORE, GIVE HIM FOUR (4) WEEKS TIME TO MAKE OVER ADMITTED AMOUNTS BEFORE THE AUTHORITY. IF PAYMENT IS MADE BY THE ASSESEES-APPELLANTS IN TERMS OF THIS ORDER, THE COMMISSIONER (APPEALS) SHALL CONSIDER THE APPEALS ON MERITS AND PASS APPROPRIATE ORDERS IN ACCORDANCE WITH LAW, WITHOUT IN ANY WAY BEING INFLUENCED BY THE EARLIER PROCEEDINGS. NO OPINION ON THE MERITS IS EXPRESSED BY US. ALL CONTENTIONS OF EITHER OF THE PARTIES ARE LEFT OPEN. ORDERED ACCORDINGLY. NO COSTS. PAGE 4 OF 4 ITA NOS.1263 TO 1265/BANG/2010 4 8.1 THE ASSESSEE HAS NOW PRODUCED CHALLANS EVIDEN CING THE PAYMENT OF ADMITTED TAX. IN THE INTEREST OF JUSTICE , WE ARE OF THE VIEW THAT THE MATTER IS TO BE REMITTED TO THE CIT(A ), WHO SHALL VERIFY WHETHER THE ENTIRE ADMITTED TAX HAS BEEN PAID OR NOT AND IF SO, HE SHALL CONSIDER THE CASE ON MERITS IN ACCORDA NCE WITH LAW. IT IS ORDERED ACCORDINGLY. 9. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED ON FRIDAY, THE 12 TH DAY OF AUGUST, 2011 AT BANGALORE. SD/- SD/- (A MOHAN ALANKAMONY) (GEORGE GEORGE K) ACCOUNTANT MEMBER JUDICIAL MEMBER COPY TO : 1. THE REVENUE 2. THE ASSESSEE 3. THE C IT CONCERNED. 4. THE CIT(A) CONCERNED. 5. DR 6. GF MSP/10/8. BY ORDER ASST. REGISTRAR, ITAT, BANGALORE.