SMT ZAHIRA RAMZANALI KHATUN, THANE V. Income-tax Officer,3, PANVEL

ITA 1980/MUM/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 4060 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2009-2010
• Appeal Filed On: 02-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARY ARUN KUMAR SINGH
• Keywords: Opportunity of being heard; Set aside
• Section: 271(1)(c); 143(3); 143(1); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER ITA NO. 1980& 1981 / MUM . /2018 ( ASSESSMENT YEAR : 20 09 10 & 2010 11 ) SMT. ZAHIRA RAMZANALI KHATUN 402, COSMOS MARY PARK KHOPAT THANE 400 601 PAN AOCPK2114B . APPELLANT V/S INCOME TAX OFFICER WARD 3, PANVEL . RESPONDENT ASSESSEE BY : SHRI RAHUL R. SARDAA/W SHRI SASHANKDUNDU REVENUE BY : SHRI CHAUDHARY ARUN K UMAR SINGH DATE OF HEARING 01.08.2019 DATE OF ORDER 16.08.2019 O R D E R PER SAKTIJIT DEY. J.M. CAPTIONED APPEAL S HAVE BEEN FILED BY THE ASSESSEE CHALLENGING THE COMMON ORDER DATED 22 ND FEBRUARY 2018, PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 2 , THANE, CONFIRMING PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ) FOR THE ASSESSMENT YEAR 20 09 10 AND 2010 11 . 2 . BRIEF FACTS ARE, THE ASSESSEE IS AN INDIVIDUAL. FOR THE ASSESSMENT YEAR 2009 10, THE ASSESSEE FILED IT S RETURN OF INCOME ON 2 SMT. ZAHIRA RAMZANALI KHATUN 18 TH SEPTEMBER 2010, DECLARING TOTAL INCOME OF ` 4,03,150. SIMILARLY, FOR THE ASSESSMENT 2010 11, THE ASSESSEE FILED ITS RETURN OF INCOME ON 18 TH SEPTEMBER 2010, DECLARING TOTAL INCOME OF ` 4,01,780. INITIALLY, THE RETURN OF INCOME FIL ED BY THE ASSESSEE WERE PROPOSED UNDER SECTION 143(1) OF THE ACT. SUBSEQUENTLY, ON THE BASIS OF INFORMATION RECEIVED FROM THE SALES TAX DEPARTMENT THAT CERTAIN PURCHASES MADE BY THE ASSESSEE IN THE AFORESAID ASSESSMENT YEARS ARE NOT GENUINE AS THEY WERE EF FECTED FROM PERSONS/DEALERS WHO WERE IDENTIFIED AS HAWALA OPERATORS, THE ASSESSING OFFICER RE OPENED THE ASSESSMENT S UNDER SECTION 147 OF THE ACT. AFTER CALLING UPON THE ASSESSEE TO PROVE THE GENUINENESS OF THE PURCHASES , THE ASSESSING OFFICER ULTIMATELY C OMPLETED THE ASSESSMENT S UNDER SECTION 143(3) R/W SECTION 147 OF THE ACT DISALLOWING THE PURCHASES MADE IN BOTH THE ASSESSMENT YEARS AND ADD ING BACK TO THE INCOME OF THE ASSESSEE. THE ADDITION S MADE BY THE ASSESSING OFFICER IN DIFFERENT ASSESSMENT YEARS AR E AS UNDER: A.Y. 2009 10 ` 96,52,276 A.Y. 2010 11 ` 1,08,22,734 3 . O N THE BASIS OF SUCH ADDITIONS, THE ASSESSING OFFICER ALSO INITIATED PROCEEDINGS FOR IMPOSITION OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT ALLEGING FURNISHING OF INACCURATE PARTICULARS OF INCOME AND CONCEALMENT OF INCOME. AGAINST THE ADDITIONS SO MADE, TH E ASSESSEE PREFERRED APPEALS BEFORE LEARNED COMMISSIONER (APPEALS) AND 3 SMT. ZAHIRA RAMZANALI KHATUN THEREAFTER BEFORE THE TRIBUNAL. DURING THE PENDENCY OF ASSESSEES APPEALS BEFORE THE TRIBUNAL, THE ASSESSING OFFICER ISSUED SHOW CAUSE NOTICES UNDER SECTION 271(1)(C) R/W SECTION 274 OF THE ACT SEEKING EXPLANATION OF THE ASSESSEE AS TO WHY PENALTY UNDER SECTION 271(1)(C) OF THE ACT SHOULD NOT BE IMPOSED. THOUGH , THE ASSESSEE FILED EXPLANATION S OPPOSING IMPOSITION OF PENALTY, HOWEVER, THE ASSESSING OFFICER REJECTING THE EXPLANATIONS OF TH E ASSESSEE PROCEEDED TO IMPOSE PENALTY OF ` 4,02,490, IN ASSESSMENT YEAR 2009 10 AND ` 4,07,911, IN ASSESSMENT YEAR 2010 11. 4 . THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , WHILE DECIDING QUANTUM APPEALS OF THE ASSESSEE, LEARNED COMMISSIONER (APPEALS) HA S RESTRICTED THE ADDITION TO 12.5% OF THE NON GENUINE PURCHASES. WHEREAS , WHILE DECIDING ASSESSEES APPEAL S AGAINST THE SAID ORDER OF THE LEARNED COMMISSIONER (APPEALS), THE TRIBUNAL VIDE ITA NO.645& 646/PUN./2016, DATED 31 ST JANUARY 2019, HAS GRANTED FURT HER RELIEF TO THE ASSESSEE BY DIRECTING THAT THE ADDITIONS SHOULD BE SUSTAINED @ 10% OF THE NON GENUINE PURCHASES AND RESTORED THE ISSUE TO THE ASSESSING OFFICER FOR RE ADJUDICATION IN TERMS WITH THE DIRECTIONS. HE SUBMITTED , LEARNED COMMISSIONER (APPEALS) HAS DISPOSED OF THE APPEALS FILED BY THE ASSESSEE AGAINST IMPOSITION OF PENALTY EX PARTE WITHOUT ALLOWING PROPER OPPORTUNITY OF BEING HEARD. THUS, HE 4 SMT. ZAHIRA RAMZANALI KHATUN SUBMITTED , THE MATTER MAY BE RESTORED TO LEARNED COMMISSIONER (APPEALS) FOR DECIDING AFRESH. 5 . THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS NO OBJECTION FOR RE ADJUDICATION OF THE ISSUE BY LEARNED COMMISSIONER (APPEALS). 6 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. UNDISPUTEDLY, ON THE BASIS OF INFORMATION RECEIVED FROM THE SALES TA X DEPARTMENT THE ASSESSING OFFICER HAS TREATED CERTAIN PURCHASES MADE BY THE ASSESSEE AS NON GENUINE AND HAS ACCORDINGLY MADE ADDITION S WHILE COMPLETING THE ASSESSMENT S FOR THE IMPUGNED ASSESSMENT YEARS. HOWEVER, WHILE DECIDING ASSESSEES APPEALS AGAINST S UCH ADDITIONS, LEARNED COMMISSIONER (APPEALS) HAD RESTRICTED SUCH ADDITION TO 12.5% OF THE NON GENUINE PURCHASES. IT IS EVIDENT , ON THE BASIS OF ADDITION S SUSTAINED BY LEARNED COMMISSIONER (APPEALS), THE ASSESSING OFFICER HAS PROCEEDED TO IMPOSE PENALTY UN DER SECTION 271(1)(C) OF THE ACT IN BOTH THE YEARS UNDER APPEAL. HOWEVER, WHILE DECIDING ASSESSEES QUANTUM APPEALS IN THE ORDER CITED SUPRA, THE TRIBUNAL HAS GRANTED FURTHER RELIEF TO THE ASSESSEE. UNDISPUTEDLY, THE AFORESAID DECISION OF THE TRIBUNAL WAS RENDERED AFTER THE IMPUGNED ORDER OF LEARNED COMMISSIONER (APPEALS) CONFIRMING THE IMPOSITION OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. FURTHERMORE, IT IS APPARENT THAT LEARNED COMMISSIONER (APPEALS) HAS DECIDED THE APPEALS FILED BY THE ASSESSEE CHALL ENGING LEVY OF PENALTY EX PARTE . T HEREFORE, 5 SMT. ZAHIRA RAMZANALI KHATUN CONSIDERING THE FACT THAT REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE WAS NOT PROVIDED AND LEARNED COMMISSIONER (APPEALS) DID NOT HAVE THE BENEFIT OF THE ORDER PASSED BY THE TRIBUNAL IN THE QUANTUM PROC EEDINGS, WE ARE INCLINED TO SET ASIDE THE IMPUGNED ORDER OF LEARNED COMMISSIONER (APPEALS) AND RESTORE THE ISSUE RELATING TO THE IMPOSITION OF PENALTY TO HIS FILE FOR FRESH ADJUDICATION AFTER DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. GROUNDS RAISED A RE ALLOWED FOR STATISTICAL PURPOSES. 7 . IN THE RESULT, APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN C OURT ON 16.08.2019 SD/ - N.K. PRADHAN ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 16.08.2019 COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI