Multivision Infotech Pvt.Ltd., Ahmedabad V. The ACIT.,Cent.Circle-1(4), Ahmedabad

ITA 1854/AHD/2013

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3644 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 18-05-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 27-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANILKUMAR BHARADWAJ
• Section: 27; 144

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI RAJPAL YADAV, JUDICIAL MEMBER ./ ITA NO.1854/AHD/2013 / ASSTT.YEAR: 2009-2010] MULTIVISION INFOTECH P. LTD. 2 ND FLOOR, NARAYAN CHAMBERS NR.PATANG HOTEL ASHRAM ROAD, AHMEDABAD 380 009. PAN : AACCM 2016 P VS ACIT, CENT.CIR.1(4) AHMEDABAD. ( APPLICANT ) (RESPONDENT) ASSESSEE BY : SHRI PRITESH SHAH REVENUE BY : SHRI ANIL KUMAR BHARADWAJ, SR.DR / DATE OF HEARING : 18/05/2016 / DATE OF PRONOUNCEMENT: 01 /06/2016 *+/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE ORD ER OF THE LD.CIT(A)-I DATED 13.12.2012 PASSED FOR THE ASSTT.Y EAR 2009-10. 2. SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT THE L D.CIT(A) HAS ERRED IN CONFIRMING THE PENALTY OF RS.1,02,518/- IMPOSED BY THE AO UNDER SECITON271(1)(C) OF THE INCOME TAX ACT, 1961. 3. THE LD.COUNSEL FOR THE ASSESSEE, AT THE VERY OUT SET, SUBMITTED THAT THE ADDITION ON WHICH PENALTY UNDER SECTION 27 1(1)(C) HAS BEEN IMPOSED, HAS ALREADY BEEN SET ASIDE BY THE TRIBUNAL TO THE FILE OF THE AO FOR RE-ADJUDICATION VIDE ORDER DATED 8.3.2016 IN ITA ITA NO.1854/AHD/2013 2 NO.161/AHD/2013. HE PLACED ON RECORD COPY OF THE T RIBUNAL ORDER, AND PRAYED THAT SINCE ADDITION IS NO MORE, THEREFORE, T HERE CANNOT BE ANY PENALTY. 4. ON THE OTHER HAND, THE LD.DR UNABLE TO CONTROVER T THE CONTENTION OF THE ASSESSEE. 5. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE RELEVANT MATERIAL ON RECORD. WE FIND TH AT IN THE QUANTUM APPEAL OF THE ASSESSEE, THE TRIBUNAL VIDE ABOVE ORD ER HAS SET ASIDE THE ISSUE FOR RE-ADJUDICATION TO THE FILE OF THE AO ON THE GROUND THAT IT WAS AN EX PARTE ASSESSMENT ORDER THE ASSESSEE HAS NOT B EEN GIVEN REASONABLE OPPORTUNITY OF HEARING TO DEFEND ITS CAS E. THE DISCUSSION MADE BY THE TRIBUNAL IN QUANTUM APPEAL READS AS UND ER: 2. BRIEFLY STATED, THE RELEVANT MATERIAL FACTS ARE LIKE THIS. THE ASSESSMENT IN THIS CASE WAS COMPLETED UNDER SECTION 144 OF THE ACT, BY ESTIMATING INCOME AT RS.2,00,000/-, AS THE ASSESSEE DID NOT CITE ANY DETAILS OF INCOME. AGGRIEVED, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LEARNED CIT(A) BUT THAT ONLY INCREASED THE TAX BURDEN. LEARNED CIT(A) ENHANCED THE INCOME TO R.3,31,772/- AS HE FOUND THAT THE RECEIPTS OF THE A SSESSEE AT RS.4,73,960/- WERE IN THE NATURE OF RENT RECEIPTS. DISCARDING THE PROFIT AND LOSS ACCOUNT OF THE ASSESSEE, WHICH SHOW ED LOSS OF RS.36,710/-, THE LEARNED CIT(A) PROCEEDED TO ADOPT RS.3,31,772/-, AFTER PROVIDING FOR DEDUCTION UNDER SECTION 24(1), AS INCOME FROM OTHER SOURCES. THE ASSESSEE IS AGGRI EVED AND IS IN APPEAL BEFORE US. 3. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF APPLICABLE LEGAL POSITION. 4. WE FIND THAT ONE OF THE CONDITIONS SINE QUA NON FOR TAXABILITY OF AN INCOME UNDER THE HEAD INCOME FROM HOUSE PROPERT Y IS THAT ASSESSEE SHOULD BE OWNER OF THE PROPERTY FROM WHICH SUCH AN INCOME IS DERIVED. THAT CONDITION IS CLEARLY NOT SA TISFIED IN THE PRESENT CASE AS ADMITTEDLY THE BALANCE SHEET OF THE ASSESSEE DOES NOT SHOW OWNERSHIP OF THE LAND OR BUILDING FRO M WHICH RENTAL INCOME IS EARNED. HOWEVER, IT IS ALSO A FACT THAT T HE ASSESSING OFFICER DID NOT HAVE ANY OPPORTUNITY TO EXAMINE THE FACTS AS NO ITA NO.1854/AHD/2013 3 DOCUMENTS WERE PRODUCED BEFORE HIM. IT IS ALSO NOT CLEAR AS TO WHO WAS THE OWNER OF THIS PROPERTY AND, IF ASSESSEE WAS NOT THE OWNER, WHAT WAS THE NATURE OF RIGHTS THAT HE HAD IN THIS PROPERTY SO AS TO ENTITLE HIM TO EARN THIS RENTAL INCOME. IN VIEW OF THESE DISCUSSIONS, AS ALSO BEARING IN MIND ENTIRETY OF TH E CASE, WE DEEM IT FIT AND PROPER TO REMIT THE MATTER TO THE FILE O F THE ASSESSING OFFICER FOR ADJUDICATION DE NOVO AFTER GIVING AN OP PORTUNITY OF HEARING TO THE ASSESSEE, IN ACCORDANCE WITH THE LAW AND BY WAY OF A SPEAKING ORDER. THE ASSESSEE SHALL HAVE THE LIBER TY, AS INDEED THE DUTY, TO PLACE ALL THE RELEVANT FACTS AND SUPPO RTING EVIDENCES BEFORE THE ASSESSING OFFICER. WITH THESE DIRECTIONS , THE MATTER STANDS RESTORED TO THE FILE OF THE ASSESSING OFFICE R. 5. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES IN THE TERMS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT TODAY ON THE 8TH DAY O F MARCH, WHETHER THE ASSESSEE IS TO BE VISITED WITH PENALTY OR NOT QUA ADDITION MADE IN HIS TOTAL INCOME IS THE QUESTION WHICH IS D EPENDED UPON THE MERIT OF QUANTUM ADDITION. BUT SINCE WE HAVE SET AS IDE THE QUANTUM PROCEEDINGS TO THE FILE OF THE AO FOR RE-ADJUDICATI ON, IT WILL BE PREMATURE TO DECIDE THE PENALTY APPEAL ON MERIT. THE PENALTY CAN ONLY BE IMPOSED UPON THE ASSESSEE AFTER CONCLUSION OF QUANTUM ADDIT ION. IN VIEW OF THE ABOVE, WE RESTORE THIS ISSUE TO THE FILE OF THE AO, BECAUSE, IT IS IN THE DISCRETION OF THE AO TO VISIT THE ASSESSEE WITH PENALTY OR NOT, AFTER CONCLUSION OF RE-ASSESSMENT PROCEEDINGS, AS EARLIER ASSESSMENT WAS AN EX PARTE ASSESSMENT ORDER. IN VIEW OF THE ABOVE, T HE APPEAL OF THE ASSESSEE IS ALLOWED AND THE PENALTY IMPOSED BY THE AO IS DELETED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE COURT ON 1 ST JUNE, 2016 AT AHMEDABAD. SD/- SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 01/06/2016