Shri Murlidhar S.Panjabi, Bhavnagar V. The ACIT.,Circle-1, Bhavnagar

ITA 2179/AHD/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5957 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 9 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 27-04-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 28-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 143(3); 271(1)(c)

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI MAHAVIR PRASAD, JM, AND SHRI MANISH BORAD, AM ./ITA.NO.2179/AHD/2014 ( / ASSTT YEAR :2008-09) SHRI MURLIDHAR S. PUNJABI, P/O. SANTRAM MANGALDAS, B- 46,MARKETING YARD, CHITRA, BHAVNAGAR VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1, PAN : ADDPP9508N (APPELLANT) (RESPONDENT) / APPELLANT BY: SHRI TUSHAR P. HEMANI, D.R / RESPONDENT BY: SHRI K. MADHUSUDAN, SR. D.R / DATE OF HEARING 27-04-2017 /DATE OF PRONOUNCEMENT 01-05-2017 / O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER THIS APPEAL FOR ASSESSMENT YEAR 2008-09 IS DIRECT ED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-XX DATED 24 .06.2014 ARISING OUT OF THE ORDER U/S. 271(1)(C) OF THE ACT FRAMED ON 26 .03.2013 BY ACIT, CIRCLE- 1, BHAVNAGAR. ASSESSEE HAS RAISED SIX GROUNDS OF AP PEAL BUT THE SOLITARY GRIEVANCE IS AGAINST THE ORDER OF COMMISSIONER OF I NCOME TAX(APPEALS) FORMING PENALTY OF RS. 12,04,000/- LEVIED U/S. 271( 1)(C) OF THE ACT. 2. BRIEF STATED FACT AS CULLED OUT FROM THE RECORDS ARE THAT THE ASSESSMENT U/S. 143(3) OF THE ACT WAS COMPLETED ON 24.12.10 IN THE CASE OF ASSESSEE BY LEARNED ASSESSING OFFICER AFTER MAKING ADDITIONS/DI SALLOWANCES OF RS. 34,94,079/-. APPEAL BEFORE THE COMMISSIONER OF INCO ME TAX(APPEALS) COULD ITA.NO.2179/AHD/2014 ASSESSMENT YEAR 2008-09 - 2 NOT BRING ANY SUCCESS TO THE ASSESSEE ON QUANTUM IS SUE. SUBSEQUENTLY PENALTY PROCEEDINGS U/S. 271(1)(C) WERE INITIATED AND AFTER GIVING PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE AND EXAMINING THE SUBMIS SIONS MADE BY HIM, LEARNED ASSESSING OFFICER IMPOSED PENALTY OF RS. 12 ,04,000/- U/S. 271(1)(C) OF THE ACT. AGAINST THE PENALTY ORDER U/S. 271(1)(C ), ASSESSEE PREFERRED APPEAL BEFORE COMMISSIONER OF INCOME TAX(APPEALS), BUT LOS T AS THE PENALTY U/S. 271(1)(C) AT RS. 12,04,000/- WAS CONFIRMED. 3. AGGRIEVED ASSESSEE IS NOW IN APPEAL BEFORE THE T RIBUNAL. AT THE OUTSET LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT WIT H REGARD TO THE QUANTUM ADDITION WHICH WERE CONFIRMED BY THE LEARNED COMMIS SIONER OF INCOME TAX(APPEALS), ASSESSEE PREFERRED APPEAL BEFORE THE HONBLE TRIBUNAL. IT FURTHER SUBMITTED THAT COORDINATE BENCH ON OBSERVIN G THAT THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) WAS EX-PARTE, FOLLOWED THE DECISION OF ITAT, AHMEDABAD BENCH IN THE CASE O F GUJARAT THEMIS BOYCE LIMITED, 34 ITD 339(AHD), AND RESTORED THE IS SUES RAISED IN THE GROUNDS OF APPEAL FOR QUANTUM ADDITION BACK TO THE FILE OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) FOR DECIDING DE -NOVA AFRESH AS PER LAW. THE LEARNED COUNSEL FURTHER REQUESTED THAT AS THE QUANTUM ISSUE STAND RESTORED TO THE FILE OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) AND THE FRESH ORDER IS STILL AWAITED, THE PENALTY ORDER THE ISSUE RELATING TO THE U/S. 271(1)(C) MAY BE RESTORED TO THE FILE OF LEARNED CO MMISSIONER OF INCOME TAX(APPEALS). ON THE OTHER HAND LEARNED DEPARTMENTA L REPRESENTATIVE RAISED NO OBJECTION IF THE MATTER IS SET ASIDE TO THE FILE OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS). ITA.NO.2179/AHD/2014 ASSESSMENT YEAR 2008-09 - 3 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD PLACED BEFORE US. SOLITARY GRIEVANCE OF THE ASSESSEE AGAIN ST THE ORDER OF COMMISSIONER OF INCOME TAX(APPEALS) CONFIRMING PENA LTY OF RS. 12,04,000/- LEVIED U/S. 271(1)(C) OF THE ACT. ON GO ING THROUGH THE SUBMISSION OF LEARNED COUNSEL WE UNDERSTAND THAT COORDINATE BE NCH VIDE ITA NO. 2270/AHD/2011 PRONOUNCED ON 23.12.2014 IN ASSESSEE S CASE FOR ASSESSMENT YEAR 2008-09 RELATING TO QUANTUM ADDITIONS, HAS RES TORED ALL THE ISSUES BACK TO THE FILE OF LEARNED COMMISSIONER OF INCOME TAX(APPE ALS) FOR DECIDING DE- NOVO AFRESH AS PER LAW, AS THE ORDER OF LEARNED COM MISSIONER OF INCOME TAX(APPEALS) WAS EX-PARTE AND THE APPEAL OF THE ASS ESSEE WAS DISMISSED DUE TO NON APPEARANCE AS WELL AS DUE TO DEFECT IN APPEA L MEMO. LEARNED COUNSEL HAS MADE A REQUEST FOR RESTORING PENALTY ISSUE BACK TO THE FILE OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS). 5. WE ARE THEREFORE OF THE VIEW THAT IN THE GIVEN F ACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS THE DECISION OF COORDINATE B ENCH RESTORING THE QUANTUM ISSUE O THE FILE OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS), WE FIND IT JUSTIFIED TO RESTORE THE ISSUE OF PENALTY U/S. 271( 1)(C) OF THE ACT TO THE FILE OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) FOR DEC IDING AFRESH AFTER ADJUDICATING QUANTUM ISSUE ON MERITS. NEEDLESS TO M ENTION THAT THE PROPER OPPORTUNITY OF BEING HEARD SHALL BE PROVIDED TO THE ASSESSEE. IN THE RESULT THIS APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL P URPOSES. ORDER PRONOUNCED IN THE COURT ON 1 ST MAY, 2017 AT AHMEDABAD. SD/- SD/- (SHRI MAHAVIR PRASAD) JUDICIAL MEMBER (SHRI MANISH BOARD) ACCOUNTANT MEMBER