Shri Dipal Rajendrabhai Dwivedi, Anand V. The Addl.CIT.,(TDS)Range, Baroda

ITA 1794/AHD/2012

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 2386 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-02-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 15-12-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 14-08-2012
• Court: TRIBUNAL
• Department Lawyers: MRS SOMOGYAN
• Keywords: Opportunity of being heard; Principle of natural justice; Condonation of delay
• Section: 194C

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ./ ITA NOS. 1794 & 1795/AHD/2012 / ASSESSMENT YEAR: 2004-05 & 2005-06 SHRI DIPAL RAJENDRABHAI DWIVEDI, PROP. DWARKESH TRANSPORT CO., POOJA ESTATE, NR. VITHHALBHAI PATEL STATUE, VITHAL UDYOGNAGAR ANAND - 388 120 PAN : ACCPD 1684 K VS. THE ADDL. CIT, TDS RANGE, BARODA / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI MUKUND BAKSHI, AR REVENUE BY : MRS. SOMOGYAN, SR DR. !'# / DATE OF HEARING : 15/12/2015 / DATE OF PRONOUNCEMENT: 09/02/2016 / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE PRESENT TWO APPEALS ARE DIRECTED AT THE INSTANC E OF THE ASSESSEE AGAINST THE SEPARATE ORDERS OF EVEN DATE, I.E., 24. 05.2012, PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-IV, BARODA IN ASSESSMENT YEARS 2004-05 AND 2005-06. 2. THE GRIEVANCE OF THE ASSESSEE IS THAT THE LEARNE D CIT(A) HAS ERRED IN CONFIRMING THE PENALTY OF RS.2,07,958/- AND RS.3,03 ,013/- IMPOSED U/S. 271C OF THE INCOME-TAX ACT IN ASSESSMENT YEARS 2004 -05 AND 2005-06 RESPECTIVELY. 3. THE REGISTRY HAS POINTED OUT THAT THE APPEALS AR E TIME BARRED BY ONE DAY. AN APPLICATION FOR CONDONATION OF DELAY HAS B EEN FILED BY THE ASSESSEE. THE ASSESSEE HAS CONTENDED THAT ON ACCOUNT OF CALCU LATION ERROR ON THE PART ITA NOS. 1794 & 1795/AHD/2012 SHRI DIPAL RAJENDRABHAI DWIVEDI VS. ACIT FOR AY: 2004-05 & 2005-06 2 OF THE ASSESSEE, THE APPEALS BECAME TIME BARRED BY ONE DAY. ON DUE CONSIDERATION OF THE EXPLANATION OF THE ASSESSEE, W E ARE SATISFIED THAT THERE IS NO DELIBERATE ATTEMPT AT THE END OF THE ASSESSEE TO MAKE HIS APPEALS TIME BARRED. THEREFORE, WE CONDONE THE DELAY AND PROCEE D TO DECIDE THE APPEALS ON MERIT. 4. WITH THE ASSISTANCE OF LEARNED REPRESENTATIVES, WE HAVE GONE THROUGH THE RECORD CAREFULLY. THE ASSESSING OFFICER HAS IM POSED PENALTY U/S 271C ON THE GROUND THAT THE ASSESSEE HAS FAILED TO DEDUC T THE TDS U/S 194C OF THE INCOME-TAX ACT ON PAYMENTS OF LORRY CHARGES. THE L EARNED COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET CONTENDED THAT BOTH THE PENALTY ORDERS ARE TIME BARRED. THE ASSESSEE HAS TAKEN A SPECIFIC PLEA TO T HIS EFFECT BEFORE THE CIT(A), BUT LEARNED FIRST APPELLATE AUTHORITY DID NOT ENTER TAIN THIS PLEA ON THE GROUND THAT A SPECIFIC GROUND WAS NOT FILED BY THE ASSESSEE ALONG WITH FORM NO.35. IN OUR OPINION, IT IS A LEGAL PLEA AND EVEN IF A SPECIFIC GROUND WAS NOT RAISED BY THE ASSESSEE, SUCH A PLEA CAN BE TAKE N OUT IN ARGUMENT ALSO. THE LEANED CIT(A) OUGHT TO HAVE ENTERTAINED THE PLE A. THE LEARNED CIT(A) CANNOT LEGALIZE A TIME BARRED PENALTY ORDER MERELY ON THE GROUND THAT A SPECIFIC GROUND TO CHALLENGE THIS ACTION OF THE ASS ESSING OFFICER WAS NOT TAKEN. IT IS PERTINENT TO OBSERVE THAT ONCE THE AS SESSEE HAS CHALLENGED THE IMPOSITION OF PENALTY AND CHALLENGED THE VALIDITY O F SUCH PENALTY ORDER, THEN ALL POSSIBLE ARGUMENTS IN SUPPORT OF THAT CHAL LENGE CAN BE TAKEN AND THOSE ARGUMENTS OUGHT TO HAVE BEEN ENTERTAINED BY T HE CIT(A) ON MERITS. 5. THE ASSESSING OFFICER HAS INITIATED PENALTY PROC EEDINGS BY ISSUANCE OF SHOW-CAUSE NOTICE DATED 17.07.2008. THE COPY OF THE SHOW-CAUSE NOTICES HAVE BEEN PLACED BEFORE US. THEY ARE VERBATIM SAME , EXCEPT VARIATION IN THE AMOUNTS AND THE ASSESSMENT YEARS. THEREFORE, FOR TH E FACILITY OF THE ITA NOS. 1794 & 1795/AHD/2012 SHRI DIPAL RAJENDRABHAI DWIVEDI VS. ACIT FOR AY: 2004-05 & 2005-06 3 REFERENCE, WE ARE REPRODUCING THE SHOW-CAUSE NOTICE IN ASSESSMENT YEAR 2004-05, WHICH READ AS UNDER:- OFFICE OF THE ADDL.COMMISSIONER OF INCOME TAX, ANAND RANGE, ANAND 3RD FLOOR, S.P.COMPLEX, NR. OLD C.K. HALL, MAY FAIR ROAD, ANAND. PHONE:[phone]. FAX NO: [phone]. NO.AND/ADDL.CIT/271-C/DRD/2008-09/104 DATE : 17-07-2008 TO SHRI DIPAL RAJENDRABHAI DIWEDI, PROP : DWARKESH TRANSPORT CO., ANAND. SUB: - SHOW CAUSE NOTICE FOR PENALTY LEVIABLE U/S. 271-C IN YOUR CASE FOR A.Y.2004-05 - REGARDING - ********* PLEASE REFER TO THE ABOVE. 2. FROM THE PERUSAL OF THE CASE RECORDS, IT IS OBS ERVED AS UNDER:- THE SCRUTINY OF THE P & L A/C REVEALED THAT PAYMENT OF RS.1,85,67,696/- TOWARDS LORRY CHARGES WERE MADE DU RING A.Y.2004- 05. TDS ON THE SAME WERE NOT MADE AS PER PROVISIONS OF IT. ACT 1961. 3. ACCORDINGLY ORDER U/S. U/S. 201(L) AND 201(1A) OF THE ACT FOR A.Y.2004-05 WERE PASSED AND DEMAND OF RS.2,85,379/- (TAX & INT. ) WERE RAISED ON 14/11/2006. THEREFORE PENALTY U/S.27 1-C OF THE I.T. ACT IS ALSO LEVIABLE IN YOUR CASE. ACCORDINGLY YOU ARE SHOW CAUSE AS TO WHY PENALTY OF RS.2,85,379/- (TAX & INT. ) U/S.271- C OF THE I.T. ACT SHOULD NOT BE LEVIED IN YOUR CASE. 4. AS A MATTER OF NATURAL JUSTICE, YOU ARE GIVEN A N OPPORTUNITY OF BEING HEARD ON 21/08/2008 AT 12.30 P.M. IN SUPPORT OF YOUR CLAIM, YOU CAN SUBMIT WRITTEN SUBMISSION AS WELL. SD/- (M.N.MAURYA) ADDL. COMMISSIONER OF INCOME TAX, ANAND RANGE, ANAND. 6. AS PER SECTION 275, THE PENALTY ORDER OUGHT TO H AVE BEEN PASSED WITHIN SIX MONTHS FROM THE ISSUE OF SHOW-CAUSE NOTI CE OR BEFORE THE END OF ITA NOS. 1794 & 1795/AHD/2012 SHRI DIPAL RAJENDRABHAI DWIVEDI VS. ACIT FOR AY: 2004-05 & 2005-06 4 FINANCIAL YEAR IN WHICH SUCH PROCEEDINGS WERE INITI ATED. IN ANY CASE, THE PENALTY ORDER COULD BE PASSED BEFORE 31 ST MARCH 2009, BECAUSE SIX MONTHS FROM 17 TH JULY 2008 ENDS IN THE MONTH OF JANUARY ITSELF AND I F WE TAKE IT FROM FINANCIAL YEAR, THEN IT SHOULD HAVE BEEN PASSED BEF ORE 31 ST MARCH 2009. THE PENALTY ORDERS HAVE BEEN PASSED ON 09.12.2009. FRO M ANY YARDSTICK, THEY ARE TIME BARRED. THEREFORE, WE ALLOW THE APPEALS OF THE ASSESSEE AND QUASH BOTH THE PENALTY ORDERS. \ 7. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASS ESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE COURT ON 9 TH FEBRUARY, 2016 AT AHMEDABAD. SD/- SD/- (MANISH BORAD) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 09/02/2016 BIJU T., PS !&''()(*' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! ' # / CONCERNED CIT 4. ' # ( ) / THE CIT(A) 5. &'( ! , ! , / DR, ITAT, AHMEDABAD 6. (- ./ / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD