M/s. Automat Controls, Ahmedabad V. The Income tax Officer,Ward-6(4), Ahmedabad

ITA 1534/AHD/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 0316 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 06-08-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 10-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K M MAHESH
• Assessee Lawyers: M K PATEL
• Keywords: Set aside
• Section: 142(1); 143(2); 27; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : C BENCH : AHMEDABA D (BEFORE HONBLE SHRI T.K. SHARMA, J.M. & HON'BLE S HRI N.S. SAINI, A.M.) I.T.A. NO. 1534/AHD./2010 ASSESSMENT YEAR : 2002-2003 AUTOMAT CONTROLS, AHMEDABAD -VS.- INC OME TAX OFFICER, WARD-6(4), AHMEDABAD (PAN : AAGFA 1890 E) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI M.K. PATEL RESPONDENT BY : SHRI K.M. MAHESH, SR. D.R. O R D E R PER SHRI T.K. SHARMA, JUDICIAL MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE O RDER DATED 09.03.2010 OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-XXI, AHMEDABAD CONFIRMING THE PENALTY OF RS.50,000/- LEVIED BY THE ASSESSING OFFICER UNDER SECTION 271(1 )(B) OF THE INCOME TAX ACT, 1961 FOR THE ASSESSMENT YEAR 2002-03. 2. BRIEFLY STATED THE FACTS ARE THE ASSESSEE IS A F IRM ENGAGED IN THE BUSINESS OF MANUFACTURING OF CONTROL PANELS. THE ASSESSING OFFI CER FRAMED THE ASSESSMENT UNDER SECTION 144 ON 23.02.2005 AT A TOTAL INCOME OF RS.19,39,517 /- AS AGAINST DECLARED INCOME OF RS.5,37,807/-. IN THE ASSESSMENT ORDER, THE ASSESSI NG OFFICER OBSERVED THAT NOTICES UNDER SECTION 143(2) AND 142(1) WERE ISSUED AS UNDER :- NOTICE DATE OF ISSUE DATE OF SERVICE DATE OF HEARIN G REMARKS 143(2) 24.10.03 29.10.03 27.11.03 A REQUESTED FOR ADJOURNMENT 142(1) 30.04.04 30.04.04 14.05.04 SHRI NIRAV PARIKH , PARTNER, ATTENDED 11.06.04 NONE ATTENDED 142(1) ALONG WITH QUESTIONNAIRE 28.06.04 29.06.04 08.07.04 NONE ATTENDED 142(1) 06.08.04 09.08.04 16.08.04 NONE ATTENDED 142(1) 30.08.04 02.09.04 13.09.04 NONE ATTENDED 142(1) 16.09.04 BY POST 06.10.04 NOTE ATTENDED 142(1) 13.01.05 17.01.05 24.01.05 NONE ATTENDED 2 ITA NO. 1534/AHD/2010 IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER ALSO STATED THAT THE QUESTIONNAIRE WAS ISSUED, WHICH WAS ALSO NOT COMPLIED WITH. HE, THEREFORE, IN ITIATED PENALTY PROCEEDINGS UNDER SECTION 271(1)(B) OF THE INCOME TAX ACT, 1961. 2.1. IN REPLY TO SHOW-CAUSE NOTICES ISSUED BEFORE L EVYING PENALTY UNDER SECTION 271(1)(B), THE ASSESSEE STATED THAT ALL THE NOTICES COULD NOT BE C OMPLIED WITH BECAUSE THE MANPOWER ENGAGED IN DAY-TO-DAY WORK AND THE PARTNER SHRI NIRAV PARIKH W AS LOOKING AFTER THE ACCOUNTS AND INCOME- TAX MATTERS OF THE FIRM. IT WAS ALSO STATED THAT NE W AUDITORS WERE ALSO APPOINTED IN ORDER TO ATTEND THE PROCEEDINGS. THE ASSESSING OFFICER REJECTED THE EXPLANATION OF THE ASSESSEE AND LEVIED THE PENALTY OF RS.50,000/- FOR FIVE DEFAULTS UNDER SECT ION 271(1)(B) OF THE ACT. 3. ON APPEAL, IN THE IMPUGNED ORDER, THE LEARNED CO MMISSIONER OF INCOME TAX(APPEALS) CONFIRMED THE PENALTY FOR THE DETAILED REASONS GIVE N IN PARA 5, WHICH READS AS UNDER :- 5. I HAVE EXAMINED THE ABOVE PENALTY ORDER U/S. 27 1(1)(B) OF THE I.T. ACT. I HAVE ALSO EXAMINED THE GROUNDS OF APPEA L AND WRITTEN SUBMISSION GIVEN TO ME BY THE LD. A.R. ON 4.3.2010 ALONGWITH SOME ANNEXURES, BUT I AM NOT CONVINCED WITH THE WRITTEN SUBMISSIONS AND ANNEXURES GIVEN TO ME, HENCE THE PENALTY ORDER PASS ED BY THE LD. ASSESSING OFFICER IS APPROVED AS IT IS. AGGRIEVED BY THE ORDER OF LEARNED COMMISSIONER OF I NCOME TAX(APPEALS), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4. AT THE TIME OF HEARING, ON BEHALF OF ASSESSEE SH RI M.K. PATEL, LD. COUNSEL APPEARED AND POINTED OUT THAT THE ORDER PASSED BY THE LEARNED CO MMISSIONER OF INCOME TAX(APPEALS) IS CRYPTIC. THE LD. COUNSEL OF THE ASSESSEE ALSO DREW OUR ATTENTION TO THE PROVISIONS CONTAINED IN SECTION 250(6) OF THE INCOME TAX ACT, WHICH PROVIDE THAT APPELLATE ORDERS OF COMMISSIONER (APPEALS) ARE TO STATE THE POINTS ARISING IN APPEAL , THE DECISION OF AUTHORITY THEREON AND REASONS FOR SUCH DECISION. THE PROVISIONS OF SECTION 250(6) ARE MANDATORY AND IT IS OBLIGATORY FOR THE COMMISSIONER (APPEALS) TO PASS A SPEAKING ORDER STA TING THE POINTS RAISED IN APPEAL, HIS DECISION THEREON AND REASONS FOR SUCH DECISION. THE LD. COUN SEL OF THE ASSESSEE SUBMITTED THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED COMMISSI ONER OF INCOME TAX(APPEALS) OUGHT TO HAVE ACCEPTED THE EXPLANATION OF THE ASSESSEE AND CANCEL LED THE PENALTY OF RS.50,000/- LEVIED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(B) OF THE IN COME TAX ACT, 1961. 3 ITA NO. 1534/AHD/2010 5. ON THE OTHER HAND, SHRI K.M. MAHESH, LD. SR. D.R . APPEARING ON BEHALF OF THE REVENUE VEHEMENTLY SUPPORTED THE ORDER OF LEARNED COMMISSIO NER OF INCOME TAX(APPEALS). HE POINTED OUT THAT ON 27.11.2003, THE ASSESSEE MADE A REQUEST FOR ADJOURNMENT. THEREAFTER, ONLY ONCE, I.E. ON 14.05.04, PARTNER SHRI NIRAV PARIKH WAS ATTENDED . THEREAFTER, SIX DATES WHICH WERE FIXED FOR HEARING, THERE WAS NO COMPLIANCE FROM THE SIDE OF A SSESSEE. IN THESE CIRCUMSTANCES, PENALTY UNDER SECTION 271(1)(B) WAS CORRECTLY LEVIED AND CO NFIRMED BY THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS). THEREFORE, THE ORDER OF LEARNE D COMMISSIONER OF INCOME TAX(APPEALS) BE UPHELD. 6. HAVING HEARD BOTH THE SIDES, WE HAVE CAREFULLY G ONE THROUGH THE ORDERS OF AUTHORITIES BELOW. THE EXACT REASONING GIVEN BY THE LEARNED COM MISSIONER OF INCOME TAX(APPEALS) FOR CONFIRMING THE PENALTY IS RE-PRODUCED BY US HEREINA BOVE. FROM THE PERUSAL OF THE SAME, IT CAN BE SEEN THAT THE ORDER OF LD. COMMISSIONER (APPEALS) I S CRYPTIC AND ALSO CONTRARY TO THE PROVISIONS CONTAINED IN SECTION 250(6) OF THE INCOME TAX ACT, 1961. WE, THEREFORE, SET ASIDE THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) AND DIR ECT HIM TO RE-DECIDE THE APPEAL OF THE ASSESSEE AFRESH KEEPING IN VIEW THE PROVISIONS CONT AINED IN SECTION 250(6) OF THE INCOME TAX ACT BY PASSING A SPEAKING ORDER AFTER GIVING OPPORT UNITY OF BEING HEARD TO BOTH THE SIDES. 7. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED. THE ORDER WAS PRONOUNCED IN THE COURT ON 13.08.201 0 SD/- SD/- (N.S. SAINI) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 13/ 08 / 2010 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE (2) THE DEPARTMENT. 3) CIT(A) CONCERNED, (4) CIT CONCERNED, (5) D.R., ITAT, AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGI STRAR, ITAT, AHMEDABAD LAHA/SR.P.S.