Deputy Commissioner of Income TAx Central Circle-1(3), Bangalore V. M/s Oblulapuram Mining Company Pvt Ltd , Bellary

ITA 1802/BANG/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 3609 (ITAT-BANGALORE)
• Duration Of Justice: 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 06-09-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B V E N LATES H WARA RA O
• Assessee Lawyers: LAKSHMINARAYANA
• Keywords: Period of limitation; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A. K. GARODIA , ACCOUNTANT MEMBER ITA NO. 1 802 /BANG/201 7 ASSESSMENT YEAR : 20 10 - 11 DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-1(3), 3 RD FLOOR, C. R. BUILDING, QUEENS RAOD, BENGALURU 560 001. VS. M/S. OBULAPURAM MINING COMPANY PRIVATE LTD., ENNOBLE HOUSE, RAGHAVACHARI ROAD, BELLARY 583 101. PAN : AAACO 5753 D APPELLANT RESPONDENT REVENUE BY : SHRI. B. V E N LATES H WARA RA O, CIT ASSESSEE BY : SHRI. LAKSHMINARAYANA, ADVOCATE DATE OF HEARING : 2 4 . 0 7 .201 8 DATE OF PRONOUNCEMENT : 21 . 0 8 .201 8 O R D E R PER SUNIL KUMAR YADAV, JUDICIAL MEMBER THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER THE CIT(A), INTER ALIA, ON FOLLOWING GROUNDS: 1. WHETHER ON FACTS AND IN CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) HAS ERRED ON FACTS AND IN LAW IN CANCELLING THE PENALTY IMPOSED U/S271(1)(C) OF RS.134,18,58,080/- BASED ON CANCELLATION OF ORDER U/S143(3) IN ASSESSEE'S OWN CASE FOR THE AY 2010-11 BY THE HON'BLE ITAT VIDE ORDER DATED 29.07.2016 WHICH HAS NOT BEEN ACCEPTED BY THE DEPARTMENT AND FURTHER APPEAL HAS BEEN FILED BEFORE THE HON'BLE HIGH COURT OF KARNATAKA. ITA NO. 1802/BANG/2017 PAGE 2 OF 3 2. WHETHER ON FACTS AND IN CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) HAS ERRED IN NOT APPRECIATING THE FACT THAT THE ASSESSEE HAD FILED ORIGINAL RETURN FOR AY 201011 DECLARING INCOME OF RS.225,13,29740/-, BUT AS A RESULT OF SCRUTINY ASSESSMENT U/S143(3) , THE CONCEALED INCOME OF THE ASSESSEE TO THE TUNE OF RS.394,78,02,532/- HAS BEEN BROUGHT TO TAX. 3. WHETHER ON FACTS AND IN CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) HAS ERRED ON FACTS AND IN LAW IN CANCELLING THE PENALTY IMPOSED U/S271(1)(C) OF RS. 134,18,58,080/-, WHEREIN THERE IS AN UNREASONABLE DELAY OF ALMOST 9 MONTHS IN FILING OF APPEAL AND THE LD.CIT(A) HAS ALSO OBSERVED IN THE APPELLATE ORDER THAT THE DELAY HAS NOT BEEN EXPLAINED AND HENCE CANNOT BE CONDONED. 4. FOR THESE AND SUCH OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING THE ORDERS OF LD. CIT (A) MAY BE SET ASIDE AND THAT OF ASSESSING OFFICER MAY BE RESTORED. 2. DURING THE COURSE OF HEARING, THE LEARNED DR HAS INVITED OUR ATTENTION THAT THE CIT(A) HAS DISMISSED THE APPEAL BEING BARRED BY LIMITATION AFTER DENYING THE REQUEST FOR CONDONATION OF DELAY IN FILING THE APPEALS OF 9 MONTHS. AFTER DISMISSING THE APPEAL OF THE ASSESSEE ON ACCOUNT OF NON-FILING WITHIN THE PERIOD OF LIMITATION THE CIT(A) HAS GONE FURTHER AND EXAMINED THE ISSUE OF PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT AND THE CIT(A) DELETED THE PENALTY. THE LEARNED DR FURTHER CONTENDED THAT ONCE THE CIT(A) DISMISS THE APPEAL BEING BARRED BY LIMITATION AND DID NOT ADMIT IT FOR ADJUDICATION, HE HAS NO JURISDICTION TO ADJUDICATE THE ISSUE ON MERIT RAISED IN APPEAL. THEREFORE, THE FINDING OF THE CIT(A) WITH REGARD TO THE MERIT OF PENALTY LEVIED UNDER SECTION 271(1)(C) IS NOT SUSTAINABLE IN THE EYES OF LAW. THE LEARNED COUNSEL FOR THE ASSESSEE HAS PLACED RELIANCE UPON THE ORDER THE CIT(A). 3. HAVING CAREFULLY EXAMINED THE ORDER OF THE CIT(A) WE FIND THAT UNDISPUTEDLY CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE BEING BARRED BY LIMITATION AFTER DECLINING THE REQUEST OF THE ASSESSEE OF CONDONING THE DELAY OF 9 MONTHS IN FILING OF THE APPEAL. THIS ORDER OF THE CIT(A) HAS NOT BEEN CHALLENGED BY THE ASSESSEE. THEREFORE, THE FINDING OF THE CIT(A) IN THIS REGARD ATTAINS THE FINALITY; MEANING THEREBY ONCE THE APPEAL WAS DISMISSED BEING BARRED BY LIMITATION, THE CIT(A) OUGHT NOT TO HAVE MOVED ITA NO. 1802/BANG/2017 PAGE 3 OF 3 FURTHER TO ADJUDICATE THE APPEAL ON MERIT. ONCE THE APPEAL IS NOT ADMITTED FOR ADJUDICATION ON ACCOUNT OF BEING BARRED BY LIMITATION, THE APPELLATE AUTHORITY LOSES ITS JURISDICTIONS TO ADJUDICATE THE APPEAL ON MERIT. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE FINDING OF THE CIT(A) ON MERIT OF THE PENALTY AFTER DISMISSING THE APPEAL BEING BARRED BY LIMITATION IS NOT SUSTAINABLE IN THE EYES OF LAW. WE, THEREFORE, SET ASIDE THE FINDING OF CIT(A) ON MERIT. ACCORDINGLY APPEAL OF THE REVENUE STANDS ALLOWED. 4. IN THE RESULT, APPEAL OF THE REVENUE STANDS ALLOWED. PRONOUNCED IN THE OPEN COURT ON 21 ST AUGUST, 2018. SD/- SD/- BANGALORE. DATED: 21 ST AUGUST, 2018. /NS/* COPY TO: 1. APPELLANTS 2. RESPONDENT 3. CIT 4. DR 5. GUARD FILE BY ORDER SR. PRIVATE SECRETARY, ITAT, BANGALORE. ( A. K. GARODIA ) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER