Serajuddin & Co, Kolkata V. DCIT,Circle-2(1), Bhubaneswar

ITA 224/CTK/2020

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 6199 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-08-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2003-2004
• Appeal Filed On: 19-11-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BEFORE AND ARUN KHODPIA, ACCOUNTANT MEMBER Assessment Year Serajuddin & Cio., 19/A, British Indian Street, Kolkata-700 069 PAN/GIR No. (Appellant Per Bench These are appeals filed by the assessee of the ld CIT(A) years 2003-04 to 2009 the Act. 2. None represented on behalf of the assessee. Shri M.K.Gautam, ld CIT DR appeared on behalf of the revenue. 3. A written submission has been filed by the assessee, which is extracted herein below: IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE S/SHRI GEORGE MATHAN, JUDICIAL AND ARUN KHODPIA, ACCOUNTANT MEMBER ITA Nos.224 to 230/CTK/20 Assessment Years : 2003-04 to 2009 Serajuddin & Cio., 19/A, British Indian Street, 700 069 Vs. DCIT, Circle Bhubaneswar PAN/GIR No.ABIFS 3758 G (Appellant) .. ( Respondent Assessee by : None (written submission filed) Revenue by : Shri M.K.Gautam, CIT Date of Hearing : 17/8 Date of Pronouncement : 17/8 O R D E R These are appeals filed by the assessee against the separate orders of the ld CIT(A)-1, Bhubaneswar all dated 21.8.2020 for the assessment 04 to 2009-10 confirming the levy of penalty u/s.271(1)(c) of None represented on behalf of the assessee. Shri M.K.Gautam, ld CIT appeared on behalf of the revenue. A written submission has been filed by the assessee, which is extracted herein below: Page1 | 5 IN THE INCOME TAX APPELLATE TRIBUNAL, JUDICIAL MEMBER AND ARUN KHODPIA, ACCOUNTANT MEMBER /CTK/2020 04 to 2009-2010 DCIT, Circle-2(1), Bhubaneswar Respondent) : None (written submission filed) : Shri M.K.Gautam, CIT DR 8/ 2022 8/2022 against the separate orders 1, Bhubaneswar all dated 21.8.2020 for the assessment 10 confirming the levy of penalty u/s.271(1)(c) of None represented on behalf of the assessee. Shri M.K.Gautam, ld CIT A written submission has been filed by the assessee, which is ITA Nos.224 to 230/CTK/2020 Assessment Years : 2003-04 to 2009-2010 Page2 | 5 “1. That the above noted appeals are pending before this Hon'ble Tribunal and are fixed for hearing on 17.08.2022. 2. That the above noted appeals relate to penalty u/s 271(l)(c) for AYs 2003-04 to 2006-07 and penalty u/s 271AAA for AYs 2008-09 and 2009-10. 3. That Ground No. 13 in respect of appeals for AYs 2003-04 to 2006-07 and Ground No. 11 in respect of appeals for AYs 2008-09 and 2009-10 are that impugned penalties imposed on the basis of invalid assessment orders passed in violation of the provisions of section 153D of the Income Tax Act,1961 are illegal. It is the submission of the Appellant that Hon'ble Bench while adjudicating the Quantum Appeals of the Appellant for the AYs 2003- 04 to 2009-10 in ITA(ss) A Nos 25 to 28/CTK/2013 , ITA(ss) A No. 22/CTK/2013 , ITA(ss) A No. 16/CTK/2013 & ITA(ss) A No. 17/CTK/2013 respectively allowed the said Appeals in favour of the Appellant on the basis of Ground No.2 i.e. non-compliance to the provisions of section 153D of the Income Tax Act, 1961 vide consolidated order dated 21.01.2022. Vide paragraph 45 of the said decision dated 21.01.2022 , it was held by this Hon'ble Bench as under: “45. Since by the earlier part of this order, we have held that the assessment orders are void and bad in law and consequently, the assessment orders have been quashed, hence, all other issues or grounds challenging the merits of the additions or disallowances agitated by both the sides in then respective cross appeals from A.Y. 2003-04 to 2009-10marising out of impugned assessment orders are rendered to be academic and thus, not being adjudicated upon.” 4. That in view of submission in para 3 above, the impugned penalties for A.Ys 2003-04 to 2009-10 do not survive in the eyes of the law and hence, liable to be quashed/annulled. The appellant is prepared to file copy of the said decision dated 21.1.2022 of this Hon’ble Bench, if so directed by your honorus. Prayers That the appellant pray your honours that this submission of the appellant alongwith the grounds of appeals may kindly be considered and the captioned appeals may kindly be allowed. Alternatively, the case may be adjourned in terms of decision dated 29.4.2021 of the ITAT, Chandigarh in the case of Amrik Singh Bhullar vs ITO in ITA No.1089/Chd/2019 for the AY 2015-16 holding that “written submission without a conscious waiver cannot be treated as waiver of right to be heard. To put it differently in case the ITA Nos.224 to 230/CTK/2020 Assessment Years : 2003-04 to 2009-2010 Page3 | 5 captioned appeals of the appellant are allowed, there is no need to adjourn the matter so as to enable the appellant to file written submission covering all the grounds of appeals.” 4. It was submitted by ld CIT DR that the quantum orders for the relevant assessment years under appeal have been quashed on technical ground of violation of provisions of section 153D of the Act. The merits have not been adjudicated. It was the submission that the merits showed that there was concealment. It was the submission that the merits have not been adjudicated nor the addition has been deleted after considering the merits of the case but the orders have been cancelled on account of technicality. It was the submission that the assessee was the subject matter of search and during the course of search, more than Rs.100 crores had been surrendered as income but the same had also not been offered to tax when the returns were filed. It was the further submission that the revenue has filed appeal before the Hon’ble Jurisdictional High Court of Orissa against the order of the Tribunal quashing the assessment on account of violation of provisions of section 153D of the Act. It was the submission that as the merits had not been considered and the revenue has categorically proved the concealment, the penalty as levied by the AO and confirmed by the ld CIT(A) is liable to be confirmed. Alternatively, it was the submission that these appeals may be kept in abeyance till the disposal of appeals filed by the revenue before the Hon’ble Jurisdictional High Court. It was also the prayer that in the written submission, the assessee also ITA Nos.224 to 230/CTK/2020 Assessment Years : 2003-04 to 2009-2010 Page4 | 5 sought adjournment and consequently, these appeals should be kept in abeyance till disposal of the appeals filed by the revenue before the Hon’ble Jurisdictional High Court. 5. We have considered the submissions of ld CIT DR as well as the written submission filed by the assessee. Perusal of written submission filed by the assessee shows that the assessee has categorically stated that if the appeals of the assessee are not being allowed then the assessee should be granted an opportunity to file further written submission in respect of each ground separately. Here, it is a fact that the quantum appeals in respect of the assessee for the relevant assessment years have been allowed and the assessments have been quashed on account of alleged violation of provisions of section 153D of the Act. It is noticed that the assessment orders have been treated void and bad in law and consequently, same have been quashed. For the purpose of levy of penalty, there must be an assessment order and there must be a quantum. The fact remains that the assessment orders in its entirety have been quashed. Consequently, there is no quantum amount available on the basis of which, penalty could be levied. Thus, the penalty orders have no legs to stand. This being so, the penalty orders as passed by the AO and confirmed by the ld CIT(A) stand set aside. 6. The request of ld CIT DR that the appeals may be kept in abeyance till disposal of the appeals filed by the revenue before the Hon’ble ITA Nos.224 to 230/CTK/2020 Assessment Years : 2003-04 to 2009-2010 Page5 | 5 Jurisdictional High Court of Orissa is not acceded to as no purpose would be served in keeping the appeals pending. 7. In the result, appeals of the assessee are allowed. Order dictated and pronounced in the open court on 17/8/2022. Sd/- sd/- (Arun Khodpia) (George Mathan) ACCOUNTANT MEMBER JUDICIAL MEMBER Cuttack; Dated 17/8/2022 B.K.Parida, SPS (OS) Copy of the Order forwarded to : By order Sr.Pvt.secretary ITAT, Cuttack 1. The Appellant : Serajuddin & Cio., 19/A, British Indian Street, Kolkata-700 069 2. The Respondent: DCIT, Circle-2(1), Bhubaneswar 3. The CIT(A)-,1, Bhubaneswar 4. Pr.CIT-1, Bhubaneswar. 5. DR, ITAT, Cuttack 6. Guard file. //True Copy//