Shri Rakesh D. Tiwari, Vapi V. The Income Tax Officer, Ward-3, Vapi

ITA 1661/AHD/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6097 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 27-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SITA RAM MEENA
• Keywords: Opportunity of being heard; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CAMP AT SURAT BEFORE SHRI RAJPAL YADAV , JUDICIAL MEMBER AND SHRI AMARJIT SINGH , ACCOUNTANT MEMBER ./ ITA NO. 1661 /AHD/201 4 / ASSTT. YEAR: 2007 - 08 SHRI RAKESH D. TIWARI, PLOT NO.6140, NEAR PEPSI GODOWN, 4 TH PHASE, GIDC, VAPI PAN : ACXPT 1887 B VS. INCOME TAX OFFICER, WARD - 3, VAPI / (APPELLANT) / (RESPONDENT) ASSESSEE BY : MR. RAJESH UPADHYAY REVENUE BY : MR. SITA RAM MEENA, SR DR / DATE OF HEARING : 2 7 / 0 4 /201 7 / DATE OF PRONOUNCEMENT: 28 / 0 4 /201 7 / O R D E R PER RAJPAL YADAV , JUDICIAL MEMBER : THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST THE ORDER OF LD. CIT(A) , VALSAD DATED 19 .0 3 .201 4 PASSED FOR AY 2007 - 08 . 2. THE SOLITARY GROUND RAISED BY THE ASSESSEE READS AS UNDER: LEARNED ITO ERRED IN LEVYING PENALTY U/S 271(1)(C) WHEN QUANTUM APPEAL FILED BY ITO AND CROSS OBJECTION FILED BY APPELLANT IN SUCH APPEAL IS PENDING TO BE DECIDED BY ITAT AHMEDABAD. LEARNED CIT(A) HAS ALSO ERRED TO CONFIRM PENALTY ORDER LEVIED BY ITO. 3. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT THE QUANTUM ADDITION WAS CHALLENGED BY THE ASSESSEE IN APPEAL BEFORE THE ITAT AND THE ITAT VIDE ITS ORDER DATED 22.05.2015 IN ITA ITA NO. 1661/AHD/ 2014 RAKESH D. TIWARI VS. ITO AY : 2007 - 2008 2 NO.1209/AHD/2011 & CO NO.192/AHD/2011 SET ASIDE THE SAM E BY FOLLOWING OBSERVATIONS: - 5. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, FAIRLY ADMITTED THAT THE FRESH EVIDENCES WERE FILED BEFORE THE CIT(A); HE, HOWEVER, STATED THAT IN THE GROUNDS OF APPEAL RAISED BEFORE THE ITAT, THE REVENUE HAS NOT CH ALLENGED THE ADMISSION OF ADDITIONAL EVIDENCES. MOREOVER, BEFORE THE CIT(A), THE ASSESSING OFFICER APPEARED AND HE ALSO NEVER OBJECTED TO THE CONSIDERATION OF ADDITIONAL EVIDENCES BY THE CIT(A). HE, THEREFORE, SUBMITTED THAT THE ORDER OF THE CIT(A) MAY BE SUSTAINED; IN ALTERNATIVE, HE SUGGESTED THAT IF THE BENCH IS OF THE OPINION THAT THE CIT(A) WRONGLY CONSIDERED THE ADDITIONAL EVIDENCES WITHOUT STRICTLY FOLLOWING THE PROVISIONS OF RULE 46A, THEN THE MATTER MAY BE SET ASIDE TO THE FILE OF THE ASSESSING OFF ICER SO THAT THE ASSESSEE MAY PRODUCE ALL THE EVIDENCES BEFORE THE ASSESSING OFFICER AND HE MAY RE - ADJUDICATE BOTH THE ISSUES RAISED IN THIS APPEAL BY THE REVENUE. HE ALSO SUBMITTED THAT IF THE ISSUES RAISED IN THE REVENUES APPEAL ARE SET ASIDE, THEN THE ISSUE RAISED IN THE ASSESSEES CROSS - OBJECTION SHOULD ALSO BE SET ASIDE BECAUSE OUT OF THREE ISSUES RAISED IN THE CROSS - OBJECTION, TWO ARE COMMON TO THE REVENUES APPEAL, BECAUSE ON BOTH THE ISSUES PART RELIEF IS ALLOWED BY THE CIT(A). IN RESPECT OF ONE M ORE ISSUE RAISED BY THE ASSESSEE IN THE CROSS - OBJECTION, SOME RECONCILIATION IS REQUIRED WITH THE EARLIER YEAR WHICH THE ASSESSEE WILL BE ABLE TO SUBMIT IF THE MATTER IS SENT BACK TO THE FILE OF THE ASSESSING OFFICER. THE LD. DEPARTMENTAL REPRESENTATIVE H AS NO OBJECTION IN SENDING THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER. 6. AFTER CONSIDERING THE ARGUMENTS OF BOTH THE SIDES AND FACTS OF THE CASE, WE ARE OF THE OPINION THAT IT WOULD BE IN THE INTEREST OF JUSTICE IF THE ISSUES RAISED BY THE REV ENUE IN ITS APPEAL AND IN THE CROSS - OBJECTION BY THE ASSESSEE ARE SET ASIDE AND RESTORED TO THE FILE OF THE ASSESSING OFFICER. WE ORDER ACCORDINGLY AND DIRECT THE ASSESSING OFFICER TO ALLOW ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ALSO DIRE CT THE ASSESSEE TO PRODUCE ALL THE EVIDENCES AS WELL AS EXPLANATION BEFORE THE ASSESSING OFFICER IN RESPECT OF ALL THE ISSUES MENTIONED IN THE REVENUES APPEAL AS WELL AS HIS CROSS OBJECTION. THEREAFTER, THE ASSESSING OFFICER IS DIRECTED TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW. 4. IT IS FURTHER CONTENDED THAT IN THE CONSEQUENT ASSESSMENT PROCEEDINGS, THE LD. ASSESSING OFFICER HAS INITIATED SEPARATE PROCEEDINGS U/S 271(1)(C) OF ITA NO. 1661/AHD/ 2014 RAKESH D. TIWARI VS. ITO AY : 2007 - 2008 3 THE ACT. SINCE THE IMPUGNED ASSESSMENT ORDER ITSELF STANDS SET ASIDE, THE PENALTY IN QUESTION BECOMES INFRUCTUOUS . 5. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. SINCE THE ASSESSMENT IN QUESTION FROM WHICH THE IMPUGNED PENALTY AROSE HAS BEEN SET ASIDE BY THE TRIBUNAL , THE PENALTY IN QUESTION BECOMES INFRUCTUOUS. IN VIEW THEREOF, THE PENALTY LEVIED U/S 271(1)(C) STANDS DELETED. 6. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 2 8 T H APRIL, 2017 AT CAMP SURAT . SD/ - SD/ - ( AMARJIT SINGH ) ACCOUNTANT MEMBER ( RAJPAL YADAV) JUDICIAL MEMBER SURAT ; DATED 2 8 / 0 4 /201 7 * BT / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , / DR, ITAT, 6. / GUARD FILE . / BY ORDER, T R U E C O P Y / (DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD