Dr.Sanjeev S Kalsoor, Hubli V. Asst. Commissioner of Income Tax, Belgaum

ITA 1881/BANG/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 4761 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 6 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 14-06-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 08-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D SUDHAKARA RAO
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER A ND SHRI LALIET KUMAR, JUDICIAL MEMBER ITA NO S . 1881 TO 1887/ BANG/201 6 ASSESSMENT YEAR S : 2007 - 08 TO 2013 - 14 DR. SANJEEV S KALSOOR, INDRAPRASTH, AKSHAY COLONY, GOKUL ROAD, HUBLI. PAN: AEEPK0210L VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1, BELGAUM. APPELLANT RESPONDENT APPELLANT BY : SHRI RAVISHANKAR, ADVOCATE RESPONDENT BY : SHRI D. SUDHAKARA RAO, CIT (DR) DATE OF HEARING : 14 . 0 5 .2018 DATE OF PRONOUNCEMENT : 25 . 05 .201 8 O R D E R PER BENCH: ALL THESE SEVEN APPEALS ARE FILED BY THE ASSESSEE W HICH ARE DIRECTED AGAINST A COMBINED ORDER OF LD. CIT (A)-PANAJI DATED 27.07.20 16 FOR ASSESSMENT YEARS 2007-08 TO 2013-14. ALL THESE APPEALS WERE HEARD T OGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS COMMON ORDER FOR THE SAK E OF CONVENIENCE. 2. IN ALL THESE APPEALS, ALTHOUGH THE ASSESSEE HAS RAISED SEVERAL GROUNDS OF APPEAL IN EACH YEAR BUT THERE IS ONLY ONE GRIEVANCE IN ALL THESE APPEALS THAT THE AO IS NOT JUSTIFIED IN IMPOSING PENALTY OF RS. 25,0 00/- IN EACH YEAR U/S. 271A OF IT ACT. AT THE VERY OUTSET, IT WAS NOTED BY THE BE NCH THAT THE IMPUGNED ORDER OF CIT(A) IS EX-PARTE QUA THE ASSESSEE. THE BENCH WAN TED TO KNOW AS TO WHY THERE IS NO APPEARANCE BEFORE CIT(A). IN REPLY, IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT ALL THESE APPEALS WERE FILED BEFORE C IT(A) ON 18.08.2015 AND THE SAME WERE KEPT PENDING FOR THIS REASON THAT THE QUA NTUM APPEALS WERE ALSO ITA NOS. 1881 TO 1887/BANG/2016 PAGE 2 OF 3 PENDING. HE FURTHER SUBMITTED THAT ALTHOUGH THE AS SESSEE HAS MADE WRITTEN SUBMISSIONS DATED 25.07.2016 BEFORE CIT(A) BUT NO P ROPER OPPORTUNITY OF HEARING WAS PROVIDED TO LD. AR OF ASSESSEE AND HENC E, THE MATTER MAY BE RESTORED BACK TO THE FILE OF CIT(A) FOR FRESH DECIS ION AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN THE I NTEREST OF JUSTICE. THE LD. DR OF REVENUE SUPPORTED THE ORDER OF CIT(A). 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT IT IS NOTED BY CIT(A) IN PARA 3.3 OF HIS ORDER THAT AS PER THE SUBMISSION OF ASSESSEE BEFORE HIM, IT WAS STATED BY ASSESSEE THAT ASSESSEE WAS USING THE SERV ICES OF THE ACCOUNTANT AND AUDITOR FOR VARIOUS COMPLIANCES UNDER THE IT ACT AN D ALSO FILING THE RETURNS REGULARLY FOR SEVERAL YEARS AND BOOKS OF ACCOUNTS A RE REGULARLY AUDITED. HE ALSO NOTED THAT THE AO HAS REPRODUCED CERTAIN PART OF HIS STATEMENT RECORDED ON OATH ON 21.11.2012, WHEREIN, THE ASSESSEE HAS ST ATED THAT HE HAS MAINTAINED CASH BOOK, BANK BOOK AND GENERAL LEDGER ON COMPUTER ON TALLY PACKAGE AND ASSESSEE ALSO PRODUCED THE AUDIT REPORT S U/S. 44AB ALONG WITH THE BALANCE SHEET AND INCOME AND EXPENDITURE ACCOUN T AS A PROOF THAT HIS ACCOUNTS WERE AUDITED AND HE FILED THE RETURNS IN T IME. AFTER NOTING THESE FACTS THE LD. CIT(A) NOTED IN PARA 3.6 OF HIS ORDER THAT HE HAS DECIDED THE QUANTUM APPEALS OF THE ASSESSEE FOR ALL THE ASSESSMENT YEAR S FOR WHICH PENALTIES U/S. 271A HAVE BEEN LEVIED BY THE AO. IN THAT PARA, HE HAS NOTED THAT DUE TO NON- MAINTENANCE OF PROPER BOOKS LIKE OPD REGISTER FOR R EPEAT PATIENTS, THERE WERE LOT OF DIFFICULTIES FOR THE AO TO DETERMINE THE COR RECT AMOUNT OF FEES RECEIVED BY THE ASSESSEE FROM THE PATIENTS. ON THE BASIS OF TH IS DECISION IN QUANTUM APPEAL, CIT(A) HAS CONFIRMED THE PENALTY U/S. 271A ALSO. IN OUR CONSIDERED OPINION, QUANTUM PROCEEDINGS AND PENALTY PROCEEDING S ARE SEPARATE PROCEEDINGS AND THEREFORE, IN PENALTY PROCEEDINGS, THE DECISION SHOULD NOT BE BASED MERELY ON THE DECISION IN QUANTUM PROCEEDINGS AND IN PENALTY PROCEEDINGS, THE FACTS SHOULD BE EXAMINED AFRESH AN D THE DECISION SHOULD BE RENDERED INDEPENDENTLY AFTER EXAMINING THE FACTS IN PROPER PERSPECTIVE. IT IS NOT CLEAR AS TO WHEN THE ASSESSEE PRODUCED AUDIT RE PORT U/S. 44AA OF IT ACT, HOW IT CAN BE SAID THAT BOOKS OF ACCOUNTS ARE NOT M AINTAINED BY ASSESSEE U/S. 44AA OF IT ACT. HENCE, WE FEEL IT PROPER THAT THE ISSUE SHOULD BE RESTORED BACK ITA NOS. 1881 TO 1887/BANG/2016 PAGE 3 OF 3 TO THE FILE OF CIT(A) FOR FRESH DECISION AFTER PROV IDING REASONABLE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. ACCORDINGLY, WE SET ASI DE THE ORDER OF CIT(A) IN ALL THESE YEARS AND RESTORE THE MATTER BACK TO HIS FILE FOR FRESH DECISION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BO TH SIDES AND AFTER CONSIDERING THE ABOVE DISCUSSION. 4. IN THE RESULT, ALL THE SEVEN APPEALS FILED BY TH E ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- SD/- (LALIET KUMAR) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 25 TH MAY, 2018. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.