Sh. Paramjit Singh (Prop.) of, Kapurthala V. The Income Tax Officer, Kapurthala

ITA 220/ASR/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5700 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 11 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 19-03-2018
• Assessment Year: 2004-2005
• Appeal Filed On: 18-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJEEV GUBGOTRA LD
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBU NAL AMRITSAR BENCH, AMRITSAR BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER AND SH. N.K.CHOUDHRY, JUDICIAL MEMBER ITA NO.220(ASR)/2016 ASSESSMENT YEAR:2004-05 SH. PARAMJIT SINGH (PROP.) OF M/S DOABA FILLING STATION AMRITSAR ROAD, KAPURTHALA PAN:AJIPS 9329K VS. INCOME TAX OFFICER KAPURTHALA-II KAPURTHALA (APPELLANT) (RESPONDENT) APPELLANT BY: SH. TARUN BANSAL (ADV.) RESPONDENT BY: SH. RAJEEV G UBGOTRA (LD. DR) DATE OF HEARING: 19.03.2018 DATE OF PRONOUNCEMENT: 27.03.2018 ORDER PER N.K.CHOUDHRY, JM: THE INSTANT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE/APPELLANT, ON FEELING AGGRIEVED AGAINST THE ORD ER DATED 17.02.2016 PASSED BY THE LD. CIT(A)-2, LALANDHAR, U/S 250(6) OF THE I.T. ACT, 1961 (HEREINAFTER CALLED AS THE ACT). 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS RUNN ING A PETROL PUMP UNDER THE NAME AND STYLE OF M/S DOABA F ILLING STATION AT AMRITSAR ROAD, KAPUTHALA (AS A PROPRIETOR) . THE ITA NO.220/ASR/2016 (A.Y.2004-05) SH. PARAMJIT SINGH, KAPURTHALA VS. ITO 2 INCOME OF THE ASSESSEE WAS ASSESSED U/S 143(3) OF THE ACT BY MAKING VARIOUS ADDITIONS WHICH INCLUDED ADDITION ON ACCOU NT OF UNEXPLAINED LOANS SHOWN AS OUTSTANDING IN THE NAMES OF ONE SH. BARINDER PAL SINGH AND SMT. PARAMJIT KAUR TO THE TU NE OF RS.2,00,000/- EACH. 3. ON FEELING AGGRIEVED AGAINST THE ASSESSMENT ORDER, THE ASSESSEE PREFERRED THE APPEAL BEFORE THE LD. CIT(A), WH O VIDE ORDER DATED 26.12.2007 UPHELD THE ADDITION OF RS.2,0 0,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED LOAN SHOWN AS TAKEN FROM SMT. PARAMJIT KAUR. THE SAID ORDER WAS APPEALED BEFORE THE ITAT, BENCH AND VIDE PARA NO.7 O F ITS ORDER, WHILE SETTING ASIDE THE ISSUE WITH REGARD TO THE LOAN O F RS.2,00,000/- TAKEN FROM SMT. PARAMJIT KAUR, REMANDE D TO THE FILE OF THE ASSESSING OFFICER FOR FRESH EXAMINATION. HOWE VER, THEREAFTER, ON 23 RD MARCH, 2009, A PENALTY OF RS.60,000/- IMPOSED UPON THE ASSESSEE ON FAILING TO PROVE THE GENUIN ENESS OF THE CASH CREDIT INTRODUCED BY THE ASSESSEE IN THE NAME O F THE SMT. PARAMJEET KAUR IN THE BOOKS OF ACCOUNT. THE SAID P ENALTY ORDER WAS CHALLENGED BEFORE THE LD. CIT(A) WHO ALSO UP HELD THE SAME VIDE ITS ORDER DATED 17.02.2016. 4. ON FEELING AGGRIEVED AGAINST THE PENALTY ORDER, TH E ASSESSEE PREFERRED THE INSTANT APPEAL AND IN SUPPORT OF ITS CASE, THE LD. AR SUBMITTED THAT IN QUANTUM PROCEEDINGS, THE AFORESAID ADDITION OF RS.2,00,000/- WAS SET ASIDE BY THE ITAT BEN CH AT ITA NO.220/ASR/2016 (A.Y.2004-05) SH. PARAMJIT SINGH, KAPURTHALA VS. ITO 3 AMRITSAR VIDE ITS ORDER DATED 27 TH MARCH, 2008, TO THE FILE OF THE AO FOR FRESH ADJUDICATION, IN THAT EVENTUALITY, NO AD DITION QUA UNEXPLAINED LOAN TAKEN FROM SMT. PARAMJEET KAUR WAS IN EXISTENCE, HOWEVER, THE LD. ASSESSING OFFICER ERRED IN PASSI NG THE PENALTY ORDER AND FURTHER THE LD. CIT(A) HAS ALSO ERRED IN CONFIRMING THE SAID ORDER. 5. ON THE OTHER HAND, THE LD. DR HAS NOT STATED ANYTHING ACCEPT TO RELY UPON THE ORDER PASSED BY THE AUTHORITIES BELOW . 6. WE HAVE HEARD THE PARTIES AND PERUSED THE ORDER AVAILABLE ON RECORD. IT APPEARS FROM THE PENALTY ORDER THAT AT THE TIME OF PASSING PENALTY ORDER ON 23 RD MARCH, 2009, IN REPLY TO THE SHOW CAUSE NOTICE DATED 13.03.2009 ISSUED BY AO U/S 129 OF THE ACT, THE ASSESSEE COUNSEL FILED WRITTEN EXPLANATION BY STATING THAT THE ASSESSEE HAS FILED APPEAL BEFORE THE ITAT, AMRITSAR BENCH, AMRITSAR, AGAINST THE ORDER OF THE CIT(A), THEREFORE, THE PENALTY PROCEEDING MAY BE KEPT PENDING TILL THE DISPOSAL OF TH E APPEAL. IN THE APPELLATE PROCEEDING BEFORE THE LD. CIT(A) AL THOUGH IN THE WRITTEN SUBMISSION DATED 17.02.2016, IT WAS GIV EN IN WRITING THAT THE HONBLE ITAT, AMRITSAR BENCH HAS REMA NDED THE ENTIRE CASE TO THE FILE OF THE LD. AO FOR DECIDING AFR ESH, HOWEVER, THERE IS NOTHING ON RECORD TO SHOW THAT THE ASSESSEE HAS SPECIFICALLY EMPHASIZED THAT THE QUANTUM ORDER ITSELF H AS BEEN RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER FOR DECI SION AFRESH AND EVEN OTHERWISE, ORDER OF THE ITAT, AMRITSAR , HAS NOT ITA NO.220/ASR/2016 (A.Y.2004-05) SH. PARAMJIT SINGH, KAPURTHALA VS. ITO 4 BEEN BROUGHT/PLACED ON RECORD FOR PERUSAL BY THE LD. C IT(A) FOR ADJUDICATION OF THE APPEAL. WE REALIZE THAT AT THE INITIAL STAGE OF PASSING PENAL TY ORDER ON DATED 23 RD MARCH, 2009, IF THE ORDER OF THE ITAT, AMRITSAR BENCH WOULD HAVE BEEN FILED/PLACED BEFORE THE ASSESSING O FFICER, THEN CERTAINLY THE PENALTY ORDER WOULD NOT HAVE BEEN PASSED BECAUSE THE ASSESSEE SIMPLY FILED A WRITTEN EXPLANATION T HAT THE ASSESSEE HAS FILED APPEAL BEFORE THE ITAT, AMRITSAR BENCH AT AMRITSAR AGAINST THE ORDER OF THE CIT(A), THEREFORE, DUE TO CERTAIN LIMITS OF THE LAW, THE ASSESSING OFFICER WAS COMPEL LED TO PASS THE PENALTY ORDER IN THE ABSENCE OF ANY AUTHENTIC INFORMATION/ORDER OF ITAT. FURTHER, WE HAVE TO ADD THAT EVEN OTHERWISE BEFORE THE LD. CIT(A) IT WAS NOT SPECIFICALLY ARGUED THAT THE QUANTUM ORDER ITSELF HAS BEEN SET ASIDE BY T HE ITAT, AMRITSAR BENCH TO THE FILE OF THE AO FOR DECIDING AFRE SH AND IN ABSENCE OF ITAT ORDERS, THE LD. CIT(A) CONFIRMED THE PE NALTY. WE FEEL THAT IN THE INSTANT CASE, THE AUTHORITIES BELOW HAVE PASSED THE PENALTY ORDERS ON MISCOMMUNICATION, OR INADVERTENTLY, OR OVERSIGHT OF THE ACTUAL FACTS. WE ARE OF THE CONSIDERED OPINION, ONCE THE QUANTUM ORD ER DATED 10.11.2006 IS NOT IN EXISTENCE, THEREFORE, ON TH E BASIS OF THAT ORDER, NO PENALTY CAN BE LEVIED, HENCE, THE ORD ER UNDER CHALLENGE IS SET ASIDE AND PENALTY IMPOSED BY THE ASSESSING OFFICER AND AFFIRMED BY THE LD. CIT(A) STANDS DELETE D. ITA NO.220/ASR/2016 (A.Y.2004-05) SH. PARAMJIT SINGH, KAPURTHALA VS. ITO 5 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 .03.2018. SD/- SD/- (SANJAY ARORA) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JUDI CIAL MEMBER DATED:27.03.2018 /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) SH. PARAMJIT SINGH, KAPURTHALA (2) THE ITO, KAPURTHALA (3) THE CIT(A)-2, JALANDHAR (4) THE CIT CONCERNED (5) THE SR DR, I.T.A.T., AMRITSAR TRUE COPY BY ORDER