ITO, Hyderabad V. G.Hari Babu, Hyderabad

ITA 188/HYD/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 3101 (ITAT-HYDERABAD)
• Duration Of Justice: 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 15-07-2010
• Assessment Year: 2007-2008
• Appeal Filed On: 04-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R B NAIK
• Keywords: Non-deduction of tax; Reasonable cause; Tax effect
• Section: 273B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A : HYDERABAD BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER ITA. NO. 188/HYD/2010 ASSESSMENT YEAR 2007-2008 ITO, WARD 14 (3) HYDERABAD. VS. G. HARI BABU, PROP. M/S. LAHARI GREEN PARK, PLOT NO. 723/A, ROAD NO. 37, JUBILEE HILLS, HYDERABAD. (APPELLANT) (RESPONDENT) FOR APPELLANT : SHRI R.B. NAIK (DR) FOR RESPONDENT : -NONE- ORDER PER N.R.S GANESAN, J.M. 1. THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE CIT (A)-II, HYDERABAD DATED 23-11-2009, DELETIN G THE PENALTY IMPOSED BY THE ASSESSING OFFICER UNDER SECTION 271C OF THE I.T. ACT, 1961. 2. THIS APPEAL OF THE ASSESSEE CAME UP FOR HEARING ON 14/7/2010. THE BENCH NOTICED THAT THE CIT (A) HAS P ASSED COMMON ORDER FOR FOUR ASSESSMENT YEARS NAMELY 2004-2005, 2 005-2006, 2007- 2008 AND 2007-2008. BY THE IMPUGNED ORDER FOR ALL T HE FOUR ASSESSMENT YEARS, THE CIT (A) DELETED PENALTY LEVIED BY THE AS SESSING OFFICER UNDER SECTION 271C OF THE ACT ON THE GROUND THAT ASSESSEE WAS PREVENTED BY A REASONABLE CAUSE AS CONTEMPLATED UNDER SECTION 273B OF THE ACT. THOUGH THE CIT (A) PASSED A COMMON ORDER FOR ALL TH E FOUR ASSESSMENT YEARS AS STATED ABOVE, THE REVENUE HAS FILED APPEAL ONLY FOR THE ASSESSMENT YEAR 2007-2008. WHEN THIS WAS BROUGHT TO THE NOTICE OF THE LEARNED DR ON 14-7-2010 AND REQUESTED TO CLARIFY WH ETHER THE 2 DEPARTMENT HAS FILED APPEALS FOR OTHER 3 ASSESSMENT YEARS NAMELY 2004- 2005, 2005-2006 AND 2006-2007 OR NOT ? AND THE APPE AL WAS ADJOURNED TO 15-7-2010. WHEN THE APPEAL WAS TAKEN-UP ON 15-7- 2010 THE LEARNED DR HAS FILED COPY OF THE LETTER SAID TO BE WRITTEN BY THE ASSESSING OFFICER WHICH READS AS FOLLOWS :- IN THE ABOVE CASE, THE CIT (A)-II, HYDERABAD HAS P ASSED AN ORDER FOR THE 4 ASSESSMENT YEARS BY A COMMON ORDER DATED 23-11-2009. THE TAX EFFECT IN THE EACH OF THE ASSES SMENT IS AS FOLLOWS : 1) 2004-05 RS. 1,24,149 2) 2005-06 RS. 1,77,676 3) 2006-07 RS. 84,474 4) 2007-08 RS. 3,12,289 SINCE EXCEPT THE ASSESSMENT YEAR 2007-08, THE TAX EFFECT IS LESS THAN RS. 2 LAKHS AND IN VIEW OF THE INSTRUCTION NO. 5/2008, DATED 15/5/2008, NO SECOND APPEAL WAS PREFERRED FOR THE ASSESSMENT YEARS 2004- 05, 2005-06 AND 2006-07. 3. THEREFORE, IT IS OBVIOUS THAT THE REVENUE HAS D ECIDED NOT TO FILE ANY APPEALS FOR ASSESSMENT YEARS 2004-2005, 20 05-2006 AND 2006- 2007 EVEN THOUGH THE CIT (A) DELETED THE PENALTY LE VIED UNDER SECTION 271C BY A COMMON ORDER FOR ALL THE FOUR ASSESSMENT YEARS. WE ARE CONSCIOUS THAT THE PRINCIPLES OF RESJUDICATA IS NOT APPLICABLE TO THE INCOME TAX PROCEEDING. HOWEVER, JUDICIAL DISCIPLINE REQUIRES CONSISTENCY IN THE JUDICIAL ORDER. THEREFORE, WHEN THERE WAS A REASONABLE CAUSE ON THE PART OF THE ASSESSEE FOR NON-DEDUCTION OF TAX A S FOUND BY THE CIT (A) FOR ASSESSMENT YEARS 2004-2005, 2005-2006 AND 2006- 2007, THE DEPARTMENT CANNOT CHALLENGE THE FINDING OF THE CIT (A) FOR THE 3 ASSESSMENT YEAR 2007-2008. IN OTHER WORDS, WHEN THE REASONING OF THE CIT (A) WAS ACCEPTED BY THE DEPARTMENT FOR THE ASSE SSMENT YEARS 2004- 2005, 2005-2006 AND 2006-2007 IT CANNOT BE CHALLENG ED FOR THE ASSESSMENT YEAR 2007-2008 ESPECIALLY WHEN THE CIT ( A) PASSED A COMMON ORDER FOR ALL THE FOUR YEARS. IN OUR OPINION , THE JUDICIAL DISCIPLINE DEMANDS CONSISTENCY IN JUDICIAL ORDER. T HEREFORE, EVEN THOUGH, THE DEPARTMENT MAY HAVE A REASONABLE CAUSE FOR NOT FILING THE APPEALS FOR THE ASSESSMENT YEARS 2004-2005, 2005-2006 AND 2 006-2007 ON THE GROUND THAT THE MONETARY LIMIT IS LESS THAN RS. 2 L AKHS, IN OUR OPINION, THE DEPARTMENT CANNOT CHALLENGE THE VERY SAME ORDER FOR ASSESSMENT YEAR 2007-2008 ALONE. THEREFORE, WITHOUT GOING INTO THE MERITS OF THE APPEAL, IN OUR OPINION, THIS APPEAL DESERVES TO BE DISMISSED. ACCORDINGLY, THE APPEAL OF THE REVENUE STAND DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 15-07-2010. SD/- SD/- (CHANDRA POOJARI) (NRS. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATE 15 TH JULY, 2010 VBP/- COPY TO 1. ITO, WARD 14 (3), HYDERABAD. 2. G. HARI BABU, PROP. M/S. LAHARI GREEN PARK, PLOT NO. 723/A, ROAD NO. 37, JUBILEE HILLS, HYDERABAD. 3. CIT (A)-II, HYDERABAD. 4. CIT-1 (TDS), HYDERABAD 5. DR A BENCH, HYDERABAD 6. GUARD FILE