M/s Gurkirat Promotors & Developers Pvt. Ltd., Panchkula V. DCIT, C-6(1), Mohali

ITA 1471/CHANDI/2017

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 3968 (ITAT-CHANDIGARH)
• Duration Of Justice: 11 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 28-08-2018
• Assessment Year: 2006-2007
• Appeal Filed On: 13-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH A CHANDIGARH !, ' # . %.. . & , '( # BEFORE: SMT. DIVA SINGH, JM & DR. B.R.R.KUMAR, AM ./ ITA NO. 1471/CHD/2017 / ASSESSMENT YEAR : 2006-07 M/S GURKIRAT PROMOTORS & DEVELOPERS PVT. LTD., #841, SECTOR 2, PANCHKULA. VS THE DCIT, CIRCLE 6(1), MOHALI. ./ PAN NO: AACCG5057C / APPELLANT / RESPONDENT ! ' / ASSESSEE BY : SHRI TEJ MOHAN SINGH # ! ' / REVENUE BY : SMT. CHANDERKANTA, SR.DR $ % ! &/ DATE OF HEARING : 28.08.2018 '()* ! &/ D ATE OF PRONOUNCEMENT : 08.10.2018 ')/ ORDER PER DIVA SINGH THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSA ILING THE CORRECTNESS OF THE ORDER DATED 04.08.2017 OF CIT(A) GURGA ON PERTAINING TO 200607 ASSESSMENT YEAR ON VARIOUS GROUNDS. 2. THE LD. AR INVITING ATTENTION TO GROUNDS RAISED FAIRLY C ONCEDED THAT THE GROUND NOS. 1 AND 2 RAISED IN THE PRESENT APPEAL W ERE NOT AGITATED BEFORE THE CIT(A). HOWEVER IT WAS HIS SUBMISSION THAT THE SAID GROUNDS ARE LEGAL GROUNDS WHEREIN THE VERY ASSUMPTION OF JURISDICT ION OF THE ASSESSING OFFICER IS CHALLENGED AND THUS ONLY BECAUSE THE SAID GROUND WAS NOT RAISED BEFORE THE CIT(A) IT WAS SUBMITTED CANNOT ACT AS A BAR TO AN ASSESSEE FOR RAISING THE GROUNDS BEFORE THE ITAT. THE SP ECIFIC GROUNDS READ AS UNDER : 1. THAT THE LD. ASSESSING OFFICER HAS ERRED IN LAW IN FAILING TO MENTION WHETHER NOTICE UNDER SECTION 271(L)(C) ISSUED WAS F OR CONCEALMENT OF INCOME OR FOR FURNISHING INACCURATE PARTICULARS OF INCOME AND AS SUCH PENALTY IMPOSED AND UPHELD IN PURSUANCE OF AN INVAL ID NOTICE IS ILLEGAL, ARBITRARY & UNJUSTIFIED. ITA 1471/CHD/2017 A.Y.2006-07 PAGE 2 OF 3 2. THAT THE ASSESSING OFFICER WHILE FRAMING THE ASSESSM ENT HAD MENTIONED IN THE BODY OF THE ASSESSMENT ORDER THAT T HE PENALTY IS INITIATED FOR CONCEALING THE PARTICULARS OF INCOME WHILE THE PENALTY HAS BEEN IMPOSED FOR FURNISHING INACCURATE PARTICULARS OF INCOME AND AS SUCH THE SPECIFIC CHARGE HAS NOT BEEN BROUGHT TO THE NOT ICE OF THE ASSESSEE WHICH RENDERS THE PENALTY ORDER SO UPHELD BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ILLEGAL, ARBITRARY AND UNJUSTI FIED. 3. ADDRESSING THE SAME RELYING UPON THE PAPER BOOK FILED AN D COPIES OF VARIOUS DECISIONS OF THE COURTS AND TRIBUNAL WHICH ADDRESS THE JURISDICTIONAL ISSUE, IT WAS HIS SUBMISSION THAT THE GROUNDS MAY BE ADMITTED AS ADDITIONAL GROUND AND ON CONSIDERING THE FACTS MAY BE ALLOWED. 4. THE LD. SR.DR ON CONSIDERING THE MATERIAL AVAILABLE ON REC ORD SUBMITTED THAT SHE WOULD HAVE NO OBJECTION IF THE GROUNDS ARE ADMIT TED AS IT IS A LEGAL ISSUE RAISED BY THE ASSESSEE AND THERE IS P RECEDENT AVAILABLE FOR ADMISSION OF THE GROUND. HOWEVER, IN ORDER TO ADJUDIC ATE UPON THE SAME IT WAS HER PRAYER THAT THE MATTER MAY BE REMAND ED BACK IN ORDER TO AFFORD AN OPPORTUNITY TO THE CIT(A) TO ADDRESS THE CORRE CT FACTS. THE SAID PRAYER OF THE LD. SR.DR WAS NOT OPPOSED BY THE LD. AR S TATING THAT HE HAS NO OBJECTION IF THE MATTER IS REMANDED FOR VERIFICATION ON FACTS. 5. WE HAVE HEARD THE SUBMISSIONS AND PERUSED THE MATERIA L ON RECORD. IT IS SEEN THAT THE PENALTY ORDER PASSED BY THE ASSES SING OFFICER WAS CHALLENGED BEFORE THE CIT(A) ON VARIOUS GROUNDS ON MERIT. HOWEVER THE ASSESSEE BEFORE THE ITAT HAS CHOSEN TO RAISE THE SPEC IFIC GROUND CHALLENGING THE ORDER PASSED ON THE GROUNDS THAT THE S PECIFIC CHARGE FOR THE LEVY OF PENALTY HAS NOT BEEN SPELT OUT BY THE ASSES SING OFFICER. ACCORDINGLY, IN VIEW OF THIS PATENT AND OBVIOUS SHORTCOMING IN NOTICE SENT IN TERMS OF THE JUDICIAL PRECEDENT AVAILABLE, IT HAS BEEN THE PRAYER THAT THE GROUND MAY BE ADMITTED AND THE APPEAL MAY BE ALLOWED. H OWEVER, CONSIDERING THE SUBMISSIONS OF THE PARTIES BEFORE THE BENC H WHERE ULTIMATELY THE PARTIES AGREED THAT THE MATTER MAY BE R EMANDED FOR VERIFICATION ON FACTS AND ADJUDICATION THEREAFTER, WE DEEM IT APPROPRIATE TO ADMIT THE SAID GROUNDS AND RESTORE THE ISSUE BACK TO THE FILE OF THE CIT(A) WITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW DE-NOVO FIRST ADDRESSING THE ABOVE TWO GROUNDS AND THEREAFTER T O DECIDE THE ISSUE ON MERITS, IF NEED BE. ACCORDINGLY, THE ENTIRE ORDER IS SET ASIDE BACK TO T HE ITA 1471/CHD/2017 A.Y.2006-07 PAGE 3 OF 3 FILE OF THE CIT(A) WITH THE ABOVE DIRECTION. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 08.10. 2018. SD/- SD/- ( . %.. . & ) ( ! ) (DR. B.R.R. KUMAR) (DIVA SINGH) '( #/ ACCOUNTANT MEMBER ' #/ JUDICIAL MEMBER + (, ! -. /. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT - 2. / THE RESPONDENT - 3. $ 0 / CIT 4. $ 0 ()/ THE CIT(A) 5. .34 5, & 5, 7894:/ DR, ITAT, CHANDIGARH 6. 49 ;%/ GUARD FILE (, $ / BY ORDER, < #/ ASSISTANT REGISTRAR ITAT,CHANDIGARH.