M/s. Roopmangal Emporium, Surat V. The Incom tax Officer,Ward-5(4), Surat

ITA 1950/AHD/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 5635 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 1992-1993
• Appeal Filed On: 07-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K M MAHESH
• Assessee Lawyers: R N VEPARI
• Keywords: Opportunity of being heard; Difference of opinion; Set aside
• Section: 143(3); 40(b); 250; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH AHMEDABAD (BEFORE S/SHRI BHAVNESH SAINI, JM AND D. C. AGRAWAL , AM) ITA NO.1950, 1951, 1952 AND 1953/AHD/2010 A.Y.: 1992-93, 1993-94, 1994-95 AND 1995-96 M/S. ROOPMANGAL EMPORIUM, NEAR LALGATE, KANPITH, SURAT VS THE INCOME TAX OFFICER, WARD-5(4), AAYAKAR BHAVAN, OPP. NEW CIVIL HOSPITAL, MAJURA GATE, SURAT PA NO. AAJPV 5068 Q (APPELLANT) (RESPONDENT) APPELLANT BY SHRI R. N. VEPARI, AR RESPONDENT BY SHRI K. M. MAHESH, DR O R D E R PER BHAVNESH SAINI: ALL THE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF THE LEARNED CIT(A)-IV , SURAT DATED 30 TH MARCH, 2010 FOR THE ABOVE ASSESSMENT YEARS 1992-93 TO 1995-96, CHALLENGING THE LEVY OF PENALTY U/S 271 (1) ( C ) O F THE IT ACT. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT ASSESSME NT ORDER U/S 143(3) OF THE IT ACT WAS PASSED MAKING THE ADDITIONS ON AC COUNT OF DISALLOWANCE OF ROYALTY PAYMENT AND INTEREST PAID T O THE PARTNERS U/S 40(B) OF THE IT ACT. PENALTY PROCEEDINGS WERE ACCOR DINGLY INITIATED. THE LEARNED CIT(A) DELETED THE ADDITIONS. THE DEPARTMEN T PREFERRED APPEALS BEFORE THE TRIBUNAL AND THE TRIBUNAL RELIED UPON TH E CASE OF THE SISTER CONCERN OF THE ASSESSEE M/S. ROOPMANGAL STORES WHER EIN FINDINGS WERE GIVEN THAT PAYMENT OF ROYALTY WAS WRONGLY ALLOWED B Y THE AO. AS PER DIRECTION GIVEN BY THE LEARNED CIT, SURAT U/S 263 O F THE IT ACT, THE AO DECIDED THE ISSUE AND ADDITIONS WERE MADE ACCORDING LY. PENALTY ITA NO.1950, 1951, 1952 AND 1953/AHD/2010 ROOPMANGAL EMPORIUM, SURAT VS ITO W-5(4), SURAT 2 PROCEEDINGS WERE AGAIN INITIATED AND VIDE SEPARATE ORDER THE AO LEVIED PENALTY U/S 271 (1) ( C ) OF THE IT ACT. IT WAS SUB MITTED BEFORE THE LEARNED CIT(A) THAT THE ISSUE IS CONTROVERSIAL AND IT IS A CASE OF DIFFERENCE OF OPINION. THEREFORE, PENALTY IS NOT LEVIABLE. THE LE ARNED CIT(A) HOWEVER, DISMISSED THE APPEAL OF THE ASSESSEE BY MERELY NOTI NG I HAVE CONSIDERED THE RIVAL CONTENTIONS. WHEN THE MATER IS SUBJUDICED WITH HIGHER BODIES, I UPHOLD THE ACTION OF THE A. O . AS JUSTIFIABLE . 3. AFTER CONSIDERING THE RIVAL SUBMISSIONS OF THE P ARTIES, WE ARE OF THE VIEW THAT THE MATTER REQUIRES RECONSIDERATION AT TH E LEVEL OF THE LEARNED CIT(A). ACCORDING TO SECTION 250 (6) OF THE IT ACT, THE LEARNED CIT(A) IS REQUIRED TO MENTION THE POINT OF DETERMINATION AND REASONS FOR DECISION IN THE APPELLATE ORDER. THE ORDERS OF THE LEARNED C IT(A) ARE THUS NOT SUSTAINABLE IN LAW, BECAUSE NO REASON FOR DECISION HAS BEEN MENTIONED IN THE IMPUGNED ORDERS. THE LEARNED CIT(A) FAILED TO GIVE ANY FINDING AND REASONS FOR DECISION IN THE IMPUGNED ORDERS PARTICU LARLY WHEN IT WAS ARGUED BEFORE HIM THAT THE ISSUE BEING CONTROVERSIA L AND AT VARIOUS DIFFERENT STAGES DIFFERENT VIEWS HAVE BEEN TAKEN, T HEREFORE, IT MAY BE A CASE OF DIFFERENCE OF OPINION AND PENALTY CANNOT BE LEVIED ON SUCH A MATTER. THE ORDERS OF THE LEARNED CIT(A) ARE THUS V IOLATIVE OF SECTION 250 (6) OF THE IT ACT. WE ACCORDINGLY, SET ASIDE THE IM PUGNED ORDERS AND RESTORE THIS ISSUE TO THE FILE OF THE LEARNED CIT(A ) WITH DIRECTION TO RE- DECIDE ALL THE APPEALS OF THE ASSESSEE ON MERIT BY GIVING REASONS FOR DECISION IN THE APPELLATE ORDER AFTER GIVING REASON ABLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ITA NO.1950, 1951, 1952 AND 1953/AHD/2010 ROOPMANGAL EMPORIUM, SURAT VS ITO W-5(4), SURAT 3 4. AS A RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 9-07-2010 SD/- SD/- (D. C. AGRAWAL) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 9-07-2010 LAKSHMIKANT/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER DY. REGISTRAR, ITAT, AHMEDABAD