M/s. National Lamination Industries, Nani Daman V. The ACIT., Vapi Circle, Vapi

ITA 1535/AHD/2011

• Counselvise Citation: 153520514 RSA 2011
• Duration Of Justice: 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 02-11-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 31-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVINDRA KUMAR
• Assessee Lawyers: PUNITA BANSAL
• Keywords: Question of law

Judgement Text

ITA NO.1 535/AHD/2011 ASSESSME NT YEAR 2005-06 . 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI A.K. G ARODIA, A.M.) I.T.A. NO. 1535/AHD/2011 (ASSESSMENT YEAR: 200 5- 06 ) NATIONAL LAMINATION INDUSTRIES, PLOT NO.H/1-2 & G-3, M.G. UDYOG NAGAR INDL. ESTATE, DABHEL, NANI DAMAN-396210. (APPELLANT) VS. ASSISTANT COMMISSIONER OF INCOME TAX, VAPI CIRCLE, 303 SHIVAM COMMERCIAL COMPLEX, NR. P.F. OFFICE, NATIONAL HIGHWAY NO.8, VAPI -396191 (RESPONDENT) PAN: AAAFA3357Q APPELLANT BY : SMT. PUNITA BANSAL. RESPONDENT BY : SHRI RAVINDRA KUMAR, CIT (D.R.) ( )/ ORDER DATE OF HEARING : 3-2-2012 DATE OF PRONOUNCEMENT : PER: SHRI A.K. GORADIA, ACCOUNTANT MEMBER. THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST O5RDE R OF LD. CIT (A), VALSAD DATED 17-3-2011 FOR ASSESSMENT YEAR 200 5-06. AN ADDITIONAL GROUND HAS BEEN RAISED BY THE LD. A.R. O F THE ASSESSEE WHICH IS AS UNDER:- ITA NO.1 535/AHD/2011 ASSESSME NT YEAR 2005-06 . 2 THAT THE PENALTY ORDER PASSED BY THE LD. A.O. IS AGAINST THE LAW, THEREFORE, LIABLE TO BE ANNULLED AS THE A.O. HAS NOT INITIATED PENALTY FOR A SPECIFIC CHARGE AND EVEN HAS NOT GIVE N A CLEAR FINDING AS TO WHICH OF THE CHARGE IS APPLICABLE IN THE CASE OF THE ASSESSEE. THE A.O. HAS LEVIED PENALTY FOR FURNISHIN G INACCURATE PARTICULARS AND CONCEALMENT OF PARTICULARS OF INCOM E BY APPLYING EXPLANATION 1 TO SECTION 271(1)(C ). 2. IT WAS SUBMITTED BY THE ASSESSEE AND ALSO BY THE LD. A.R. THAT THIS IS A LEGAL GROUND AND CAN BE TAKEN AT ANY POIN T OF TIME AND HENCE SHOULD BE ADMITTED. RELIANCE WAS PLACED ON THE DECI SION OF HONBLE APEX COURT RENDERED IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. VS. CIT (229 ITR 383) (SC). AS AGAINST THIS, IT WAS SUBMITTED BY THE LD. DR OF THE REVENUE THAT THE ADDITIONAL GROUND SHOUL D NOT BE ADMITTED. HE ALSO PLACED RELIANCE ON THE SAME JUDGMENT IN SUP PORT OF HIS CONTENTION. 3. WE HAVE CONSIDERED RIVAL CONTENTIONS AND PERUSED THE RECORDS AND GONE THROUGH THE JUDGMENT STATED BY BOTH THE SI DES. WE ARE OF THE CONSIDERED OPINION THAT THE ADDITIONAL GROUND R AISED BY THE ASSESSEE IS A LEGAL GROUND AND THEREFORE, THE SAME CAN BE TAKEN BY THE ASSESSEE AT ANY STAGE. AS PER THE JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF NATIONAL THERMAL POWE R CO. LTD. (SUPRA), LEGAL GROUND CAN BE TAKEN AT ANY POINT OF TIME PROVIDED SAID QUESTION OF LAW IS ARISING FROM THE FACTS WHICH ARE ON RECORD IN THE ASSESSMENT PROCEEDINGS. IN THE PRESENT CASE, THIS F ACT IS VERY MUCH AVAILABLE ON RECORD WHILE FRAMING THE ASSESSMENT OR DER BY THE A.O., AND INITIATING THE PENALTY PROCEEDINGS U/S. 271(1)( C ). HENCE, WE ADMIT ITA NO.1 535/AHD/2011 ASSESSME NT YEAR 2005-06 . 3 THE ADDITIONAL GROUND RAISED BY THE ASSESSEE. WHILE ARGUING THE ADDITIONAL GROUND RAISED BY THE ASSESSEE, IT WAS SU BMITTED BY THE LD. A.R. OF THE ASSESSEE THAT THE PENALTY ORDER IS BAD IN LAW BECAUSE THE A.O. HAD NOT INITIATED PENALTY PROCEEDINGS FOR A SP ECIFIC CHARGE. AT THIS JUNCTURE, IT WAS POINTED OUT BY THE BENCH THAT SINCE THIS ISSUE WAS NOT RAISED BEFORE THE CIT (A) AND WAS NOT EXAMI NED BY HIM, THE SAME SHOULD GO BACK TO THE FILE OF THE CIT (A) FOR A FRESH DECISION AS PER LAW. IN REPLY, THE LD. AR HAD NOTHING TO SAY. 4. THE LD. DR SUBMITTED THAT THE ADDITIONAL GROUND SHOULD BE REJECTED BECAUSE ON PAGE 20 AND 21 OF THE ASSESSMEN T ORDER, THE A.O. HAS RAISED SPECIFIC CHARGE OF SUPPRESSED SALES AND THE PENALTY PROCEEDINGS WERE INITIATED BY HIM ON THIS ACCOUNT A ND THEREFORE, THE CHARGE IS SPECIFIC AND HENCE, THE ADDITIONAL GROUND RAISED BY THE ASSESSEE SHOULD BE REJECTED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE ARE OF THE CONSIDERED OPINION THAT IN THE INTEREST OF JUSTICE, THIS ISSUE SHOULD GO BACK ON THIS ASPECT OF THE MATTER AND HENCE, WE RES TORE THIS MATTER TO THE FILE OF CIT (A) FOR A DECISION ON THIS ASPECT O F THE MATTER AFTER PROVIDING PROPER OPPORTUNITY OF HEARING TO BOTH SID ES. THIS ADDITIONAL GROUND IS ALLOWED FOR STATISTICAL PURPOSE. 6. REGARDING OTHER GROUNDS RAISED BY THE ASSESSEE, WE ARE OF THE CONSIDERED OPINION THAT NO ADJUDICATION IS CALLED F OR AT THIS STAGE BECAUSE WE HAVE RESTORED BACK THE MATTER TO THE FIL E OF THE CIT (A) FOR ITA NO.1 535/AHD/2011 ASSESSME NT YEAR 2005-06 . 4 A FRESH DECISION REGARDING THE LEGAL ISSUE RAISED B EFORE US BY WAY OF ADDITIONAL GROUND. THE ISSUE ON MERIT CANNOT BE DEC IDED BEFORE THE DECISION ON LEGAL ASPECT AND HENCE, WE DO NOT OFFER COMMENTS ON THE MERIT AND THE LD. CIT (A) SHOULD DECIDE THE MATTER AFRESH ON MERITS ALSO IF IT IS HELD BY HIM THAT THE ASSESSEE HAS NO CASE ON LEGAL ASPECT. 7. IN THE RESULT, APPEAL OF THE ASSESSEE STANDS ALL OWED FOR STATISTICAL PURPOSE IN THE TERMS INDICATED ABOVE. ORDER PRONOUNCED IN OPEN COURT ON 23 -3- 2012. SD/- SD/- (G.C.GUPTA) (A.K. GARODIA) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. S.A.PATKI. COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) VALSAD. 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD. ITA NO.1 535/AHD/2011 ASSESSME NT YEAR 2005-06 . 5 1.DATE OF DICTATION 15 - 3 -2012 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 21 / 3 / 2012 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S - -2012. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT - -2012 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S - -2012 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK - -2012. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..