ITO, Ward-56(4), Kolkata, Kolkata V. M/S. Nopany & Sons, Kolkata

ITA 1546/KOL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1705 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 10 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-06-2017
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 18-07-2014
• Court: TRIBUNAL
• Department Lawyers: S K TULSIYAN
• Assessee Lawyers: MD G HYAS UDDIN
• Section: 143(3)

Judgement Text

1 ITA NO.1546/KOL/2014 NOPANY & SONS, AY 2007-08 , A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA () BEFORE .. , /AND ... , ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] / I.T.A NO. 1546/KOL/2014 / ASSESSMENT YEAR: 2007-08 INCOME-TAX OFFICER, WD-56(4), KOLKATA VS. M/S. NOPANY & SONS (PAN: AACFN5493N) ( /APPELLANT ) ( / RESPONDENT ) DATE OF HEARING 20.03.2017 DATE OF PRONOUNCEMENT 09.06.2017 FOR THE APPELLANT/ MD. GHYAS UDDIN, JCIT FOR THE RESPONDENT/ SHRI S. K. TULSIYAN, SR. ADVOCATE / ORDER PER SHRI A.T.VARKEY, JM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A)-XXXVI, KOLKATA DATED 21.03.2014 FOR AY 2007-08 AGAINST THE DELETION OF PENALTY BY THE LD. CIT(A). 2. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE AS SESSEE BROUGHT TO OUR NOTICE THAT THE PENALTY HAS BEEN IMPOSED ON THE ADDITIONS MADE IN T HE SCRUTINY ASSESSMENT DATED 31.12.2009 WHICH HAS BEEN ANNULLED BY THE TRIBUNAL VIDE ORDER DATED 20.07.2016 IN ITA NO. 1621 & 1301/KOL/2011 FOR RELEVANT AY 2007-08 AN D DREW OUR ATTENTION TO THE ORDER OF THE TRIBUNAL WHICH WE HAVE PERUSED. WE NOTE THAT T HE TRIBUNAL HAS FOUND THAT THERE WAS NO NOTICE ISSUED TO ASSESSEE U/S. 143(2) OF THE INCOME -TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) BEFORE COMPLETION OF ASSESSMENT U/S. 143 (3) OF THE ACT, SO, THE TRIBUNAL ANNULLED THE ASSESSMENT ORDER. SINCE THE PENALTY HAS BEEN IM POSED FOR THE ADDITIONS/DISALLOWANCES MADE IN CONSEQUENCE TO IMPUGNED ASSESSMENT ORDER WH ICH HAS BEEN SUBSEQUENTLY ANNULLED 2 ITA NO.1546/KOL/2014 NOPANY & SONS, AY 2007-08 BY THE TRIBUNAL, SO, THE PENALTY DOES NOT SURVIVE. WHEN THE ASSESSMENT ORDER PASSED U/S. 143(3) OF THE ACT ITSELF HAS BEEN FOUND TO BE NULL IN THE EYES OF LAW AND, THEREFORE, THE PENALTY ORDER PASSED ON THE ASSESSMENT ORDER ALSO B ECOME NULL IN THE EYES OF LAW. THE CASE OF THE ASSESSEE IS SQUARELY COVERED BY THE LEGAL MA XIM SUBLATO FUNDAMENTO CREDIT OPUS, MEANING IN CASE A FOUNDATION IS REMOVED, THE SUPER- STRUCTURE FALLS. IN BADRINATH VS GOVERNMENT OF TAMIL NADU AND ORS. AIR 2000 SC 3243 THE HONBLE SUPREME COURT HELD THAT ONCE THE BASIS OF THE PROCEEDINGS IS GONE ALL CONSEQUENTIAL ORDERS AND ACTS WOULD FALL ON THE GROUND AUTOMATICALLY WHICH PRINCIPLE IS APPLICA BLE TO THE JUDICIAL AND QUASI JUDICIAL PROCEEDINGS ALSO. THEREFORE, THOUGH THE LD. CIT(A ) HAS DECIDED THE PENALTY ISSUE ON MERITS AND HAS GIVEN RELIEF TO THE ASSESSEE, WE AFT ER PERUSAL OF THE TRIBUNALS ORDER ANNULLING THE 143(3) ORDER, PENALTY FLOWING FROM THE ANNULLED ASSESSMENT PROCEEDING FALLS AND, THEREFORE, CANNOT BE SUSTAINED AND, THEREFORE, WE C ONFIRM THE ORDER OF THE LD. CIT(A) ON THIS GROUND ALSO. THEREFORE, WE DISMISS THE APPEAL OF TH E REVENUE. 3. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER IS PRONOUNCED IN THE OPEN COURT ON 09.06.201 7. SD/- SD/- (DR. A. L. SAINI) (ABY. T. VARKEY) (...) ( .. ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 9 TH JUNE, 2017 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT ITO, WARD-56(4), KOLKATA. 2 RESPONDENT M/S. NOPANY & SONS, 3, PRETORIA STREET , KOLKATA-71. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, SENIOR PRIVATE SECRETARY