D Ramamurthy Patra & Sons, Khurda V. ITO, Khurda

ITA 130/CTK/2012

• Counselvise Citation: 13022114 RSA 2012
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-07-2012
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 18-07-2012
• Assessment Year: 2009-2010
• Appeal Filed On: 10-02-2012
• Court: TRIBUNAL
• Assessee Lawyers: P K MISHRA
• Keywords: Opportunity of being heard

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK ( ) BEFORE . . , , HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER. /AND . . . , HONB LE SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER / I.T.A.NO. 130/CTK/2012 ( / ASSESSMENT YEAR 2009 - 10) D.RAMAMURTHY PATRA & SONS, AT/P.O.BALUGAON, DIST. KURDA 752 030 PAN: AADFD 9898 E - - - VERSUS - INCOME - TAX OFFICER, KHURDA WARD , KHURDA. ( /APPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI P.K.MISHRA, AR / FOR THE RESPONDENT: / S MT . PARAMITA TRIPATHY/ SHRI A.BHATTACHARJEE,DR / DATE OF HEAR ING: 18.07.2012 / DATE OF PRONOUNCEMENT: 20.07.2012 / ORDER . . , , SHRI K.K.GUPTA, ACCOUNTANT MEMBER . THIS APPEAL BY THE ASSESSEE IS ON THE SOLITARY ISSUE ON CONFIRMATION OF PENALTY LEVIED U/S.271B OF THE I.T.ACT,1 961 WHEN THE LEARNED CIT(A) WITHOUT ADJUDICATING THE ISSUE ON MERITS DECLINED TO CONDONE THE DELAY IN FILING THE APPEAL BELATEDLY BY 13 DAYS AND NOT 8 DAYS AS CALCULATED BY THE ASSESSEE. 2. THE LEARNED COUNSEL FOR THE ASSESSEE INITIATING HIS ARGUMENTS SUB MITTED THAT THE LEARNED CIT(A) HAS RATHER CONSIDERED HIS OPINION QUOTING CERTAIN DECISIONS ON THE DELAY FROM 8 TO 13 DAYS SHOULD HAVE BEEN ON THE BASIS OF SUFFICIENT CAUSE WHICH LIMITATION CANNOT BE VIEWED OTHERWISE DESERVING A LIBERAL APPROACH. HE FURTHER SUBMITTED THAT THE MERE GLANCE I.T.A.NO. 130/CTK/2012 2 OVER THE PENALTY ORDER U/S.271B WHICH WAS PART OF THE APPEAL MEMO OUGHT TO HAVE BEEN APPRISED BY THE LEARNED CIT(A) THAT THE ASSESSING OFFICER HAS CONSIDERED THE TURNOVER FOR THE ASSESSMENT YEAR 2006 - 07 FOR THE PURPOSE OF HO LDING THAT THE ASSESSEE HAS NOT EITHER OBTAINED THE AUDIT REPORT UNDER THE PROVISIONS OF SECTION 44AB OR OUGHT TO FURNISH THE SAME ALONG WITH THE RETURN WITHIN THE DUE DATE OF FILING OF THE RETURN THE SPECIFIED DATE BEING 30.9.2009. THIS MISSTATEMENT OF F ACTS BY THE ASSESSING OFFICER WAS ON THE BASIS OF HIS EXPARTE ORDER WHEN THE LAW PROVIDES THAT NO PENALTY CAN BE LEVIED UNLESS A REASONABLE OPPORTUNITY OF BEING HEARD IS AFFORDED TO THE ASSESSEE. HE SUBMITTED THAT THE ASSESSING OFFICER OUGHT TO HAVE FOUND THE TURNOVER FOR THE ASSESSMENT YEAR 2009 - 10 WORTHY OF AUDIT U/S.44AB FOR THE IMPUGNED ASSESSMENT YEAR WHEN THE FATE OF ORDER U/S.143(3)HAS NOT BEEN BROUGHT ON RECORD BY HIM. FOR THIS PROPOSITION HE SUBMITTED THAT THE ASSESSEE HAS OBTAINED THE AUDIT REPORT BEFORE THE DUE DATE AND AS PER THE CBDT CIRCULAR NO.03 OF 2009 DT.21.5.2009, THE ASSESSING OFFICER OUGHT NOT TO HAVE TAKEN THE TURNOVER FOR THE ASSESSMENT YEAR 2006 - 07 AS FOR THE PENALTY MATTER THE PRINCIPLES OF RESJUDICATA WOULD NOT APPLY. HE PRAYED THAT A SUITABLE DIRECTION MAY BE GIVEN TO CANCEL THE PENALTY. 3. THE LEARNED DR OPPOSED THE CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE. HE SUBMITTED THAT A MAXIMUM AMOUNT OF PENALTY PRESCRIBED BY LAW HAS BEEN LEVIED AMOUNTING TO 1 LAKH IS ON THE BASIS OF TURNOVER FOR THE ASSESSMENT YEAR 2006 - 07 COULD NOT ALTER INSOFAR AS IT IS NOT THE ASSESSEES CASE THAT THE PENALTY WOULD HAVE BEEN REDUCED ON THE BASIS OF RETURN OF LOW TURNOVER FOR RETURNING A LOW PROFIT. WITH RESPECT TO THE CO NTENTION OF THE DELAY IN FILING THE APPEAL BEFORE THE LEARNED CIT(A), HE SUPPORTED THE ORDER I.T.A.NO. 130/CTK/2012 3 OF THE LEARNED CIT(A). HE PRAYED THAT THE ISSUE BE RESTORED TO THE FILE OF THE LEARNED CIT(A) ON ABOVE SUBMISSIONS. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PER USED THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW AND THE MATERIAL AVAILABLE ON RECORD. ON CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE INCLINED TO FIND THAT THE ASSESSEE APPELLANT HAS BEEN VISITED WITH PENALTY PROVISIONS U/S.271B WHEN THE ASSESSING OFFICER HIMSELF DOES NOT KNOW THE FACTS FOR LEVYING PENALTY AND SUCH INITIATION. HE HAS NOT CONSIDERED WHETHER THE ASSESSEE HAD ACTUALLY FURNISHED THE AUDIT REPORT AFTER HAVING OBTAINED IT IN ACCORDANCE WITH THE CBDT CIRCULAR. THE TURNOVER DE FINITELY ALONE THEREFORE COULD NOT BE A GROUND FOR LEVY OF PENALTY WHICH TURNOVER BELONGS TO ASSESSMENT YEAR 20 06 - 07. THREE YEARS HAVE PASSED THEREAFTER AND IT WAS NOBODYS CASE THAT THE ASSESSEE WAS TO OBTAIN AND FURNISH THE AUDIT REPORT FOR THAT TURNOVER IN THE IMPUGNED ASSESSMENT YEAR. CONTENTION OF THE LEARNED DR TO RESTORE THE ISSUE TO THE FILE OF THE LEARNED CIT(A) FOR THE SAID PROCEDURE OF CONSIDERATION OF THE APPEAL DISMISSED IN LIMINE BY CONDONING THE DELAY IN FILING THE APPEAL BELATEDLY BY 8 TO 13 DAYS, IN OUR CONSIDERED VIEW, WOULD SERVE NO PURPOSE IN VIEW OF THE FACT THAT THE LEARNED CIT(A) WILL NOT BE ABLE TO RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER AS PER THE PROVISIONS OF THE I.T.ACT W.E.F. 1.6.2001. THEREFORE, IN THE INTEREST OF JUSTICE, WE FIND IT APPROPRIATE TO RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR AFFORDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND VERIFY THE FACTUAL ASPECTS OF THE ASSESSEE HAVING OBTAINED AND FURNISHED THE AUDIT REPORT I N ACCORDANCE WITH THE I.T.ACT AND MORE SO ACCORDING TO CBDT CIRCULAR (SUPRA) AND PASS NECESSARY ORDERS IN ACCORDANCE WITH LAW. I.T.A.NO. 130/CTK/2012 4 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. SD/ - SD/ - ( . . . ) , (K.S.S.PRASAD RAO), JUDICIAL MEMBER ( . . ) , , (K.K.GUPTA), ACCOUNTANT MEMBER. ( ) DATE: 20.07.2012 - COPY OF THE ORDER FORWARDED TO: 1 . / THE APPELLANT : D.RAMAMURTHY PATRA & SONS, AT/P.O.BALUGAON, DIST. KURDA 752 030 2 / THE RESPONDENT: INCOME - TAX OFFICER, KHURDA WARD, KHURDA. 3 . / THE CIT, 4 . ( )/ THE CIT(A), 5 . / DR, CUTTACK BENCH 6 . GUARD FILE . / TRUE COPY, / BY ORDER, APPENDIX XVII SEAL TO BE AFFIXED ON THE ORDER SHEET BY THE SR. P.S./P.S. AFTER DICTATION IS GIVEN 1. DATE OF DICTATION 18.07.2012 . 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 19.07.2012 OTHER MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.... 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S . 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 20.07.2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER ................ 9. DATE OF DESPATCH OF THE ORDER .. ( ), (H.K.PADHEE), SENIOR.PRIVATE SECRETARY.