M/s. Patidar Oil Cake Industries, Dhoraji V. The Assistant Commissioner of Income Tax, Circle-2, RAJKOT-GUJARAT

ITA 224/RJT/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 5909 (ITAT-RAJKOT)
• Duration Of Justice: 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 02-01-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 10-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR J B JHAVERI DR
• Assessee Lawyers: DM RINDANI
• Keywords: Opportunity of being heard; Period of limitation; Question of law; Assessment record; Time period of passing order

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT BEFORE SHRI T. K. SHARMA, JM AND SHRI B. R. JAIN, A M ITA NO. 224/RJT/2013 / ASSESSMENT YEAR : 2004-05 M/S. PATIDAR OIL CAKE INDUSTRIES, POST BOK NO.54, NR. POWER HOUSE, DHORAJI PAN : AACFP 4742 L ( / APPELLANT) ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-2, RAJKOT / RESPONDENT ! ' #$ / ASSESSEE BY SHRI D. M. RINDANI, CA % ! ' #$ / REVENUE BY DR. J. B. JHAVERI, DR # & ' ! ( / DATE OF HEARING 02.01.2014 ) ! ( / DATE OF PRONOUNCEMENT 03.01.2014 / ORDER .. , / T. K. SHARMA, J. M.: THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER DATED 21.03.2013 OF LD. CIT(A) -III, RAJKOT FOR THE ASSESSMENT YEAR 2004-05. 2. THE ONLY GROUND RAISED IN THIS APPEAL IS AS UNDE R:- THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-I II, RAJKOT ERRED IN CONFIRMING THE PENALTY OF RS.2,68,567/- LEVIED BY T HE ASST. COMMISSIONER OF INCOME-TAX CIRCLE-2, RAJKOT. AT THE TIME OF HEARING, ON BEHALF OF THE ASSESSEE, SHRI D.M. RINDANI, CA, APPEARED AND FILED AN APPLICATION DATED 01.01.2014 WHEREIN HE RAISED THE FOLLOWING ADDITIONAL GROUND:- THE ORDER U/S 271(1)(C) OF THE INCOME-TAX ACT, 196 1 PASSED BY THE A.C.I.T., CIRCLE-2, RAJKOT DATED 16-03-2011 LEVYING PENALTY O F RS.2,68,567/- AGAINST ALLEGED CONCEALMENT OF INCOME OF RS.7,48,619/- IS B AD IN LAW IN AS MUCH AS IT IS PASSED BEYOND THE LIMITATION PERIOD PROVIDED FOR UN DER THE PROVISO TO SEC. 271(1)(A) OF THE ACT. 3. THE LD. COUNSEL OF THE ASSESSEE PLEADED THAT FOL LOWING THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CORPORATION LTD. (1998) 229 ITR 383 (SC) , THE ADDITIONAL GROUND RAISED NOW BE ADMITTED AS I N THIS GROUND THE ASSESSEE HAS RAISED PURE QUESTION OF LAW. AS AGAIN ST THIS, LD. DEPARTMENTAL 224-RJT-2013 - PATIDAR OIL CAKE INDUSTRIES 2 REPRESENTATIVE SUBMITTED THAT THIS GROUND WAS NOT R AISED BEFORE THE LD. CIT(A); THEREFORE, THIS SHOULD NOT BE ADMITTED. ALTERNATIV ELY, THE LD. COUNSEL OF THE ASSESSEE PLEADED THAT IN CASE THE ADDITIONAL GROUND IS ADMIT TED, IN THAT EVENT FOLLOWING THE DECISION OF HONBLE MADHYA PRADESH HIGH COURT IN TH E CASE OF CIT V. TOLLARAM HASSOMAL, 298 ITR 22 (MP) THIS BE REMANDED TO LD. C IT(A) FOR DECIDING THE ADDITIONAL GROUND NOW RAISED BEFORE THE TRIBUNAL. 4. RIVAL SUBMISSIONS WERE CONSIDERED. IT IS PERTINE NT TO NOTE THAT IN THE ADDITIONAL GROUND, THE ASSESSEE HAS RAISED PURE QUESTION OF LA W; THEREFORE, FOLLOWING THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF NATIONAL TH ERMAL POWER CORPORATION LTD., REPORTED IN (1998) 229 ITR 383 (SC), THE ADDITIONAL GROUND IS ADMITTED AS ALL THE RELEVANT FACTS ETC. ARE AVAILABLE IN THE ASSESSMENT RECORD. THE HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF CIT V. TOLLARAM H ASSOMAL (SUPRA) HAS HELD THAT WHEN THE TRIBUNAL PERMITTED THE ASSESSEE TO RAISE ADDITI ONAL GROUNDS FOR THE FIRST TIME, IT SHOULD HAVE SET ASIDE THE ORDER OF THE CIT(A) AND R EMANDED THE CASE TO THE CIT(A) FOR DECIDING THE APPEAL AFRESH ON ALL THE ISSUES INCLUD ING ON THE GROUNDS RAISED BY THE ASSESSEE IN THE APPEAL BEFORE THE TRIBUNAL RATHER T HAN TO DECIDE THE ADDITIONAL GROUNDS ON MERITS FOR THE FIRST TIME BY ITSELF. WE, THEREFO RE, FOLLOWING THE DECISION OF HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF CIT V. TOL LARAM HASSOMAL (SUPRA), SET ASIDE THE IMPUGNED ORDER OF LD. CIT(A) AND DIRECT HIM TO FIRST DECIDE THE ADDITIONAL GROUND NOW RAISED BEFORE US AND THEREAFTER, IF NECESSARY, RE-A DJUDICATE THE GROUND RAISED BY THE ASSESSEE IN ITS APPEAL BEFORE THE TRIBUNAL IN ACCOR DANCE WITH LAW AFTER GIVING OPPORTUNITY OF BEING HEARD TO BOTH THE SIDES. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON THE DATE MEN TIONED HEREINABOVE. SD/- SD/- (B. R. JAIN) (T. K. SHARM A) $( #*% / ACCOUNTANT MEMBER #*% /JUDICIAL MEMBER *$+ ,*-/ ORDER DATE 03.01.2014 /RAJKOT *BT 224-RJT-2013 - PATIDAR OIL CAKE INDUSTRIES 3 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT- M/S. PATIDAR OIL CAKE INDUSTRIES, DHOR AJI 2. /RESPONDENT-M ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-2,RAJKOT 3. #-2- & 3 / CIT-II, RAJKOT 4. & 3 - / CIT(A)-III, RAJKOT 5 . 678 , , / DR, ITAT, RAJKOT 6 . 89 :; / GUARD FILE. *$+ #$ / BY ORDER , TRUE COPY PRIVATE SECRETARY, , INCOME TAX APPELLATE TRIBUNAL, RAJKOT.