Shree Ram Sharma, Jaipur V. ITO, Ward 7(2)

ITA 233/JPR/2023

AI Insights

The case involves an appeal by Shree Ram Sharma against the penalty imposed by the Income Tax Officer (ITO) under section 271(1)(c) of the IT Act, 1961, following an assessment order that added unexplained cash deposits in the assessee's bank account to his income. The initial assessment was set aside by the Tribunal in 2019, leading to a fresh assessment in 2021. The Tribunal found the initial penalty order to be infructuous due to the subsequent assessments and penalties, leading to the dismissal of the appeal.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 132125 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-07-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 13-06-2023
• Assessment Year: 2011-2012
• Appeal Filed On: 16-04-2023
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: R.S. JAJU
• Keywords: Opportunity of being heard; Set aside
• Section: 271(1)(c); 144; 143(3); 250; 274

Judgement Text

vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, ”SMC” JAIPUR Jh laanhi xkslkbZ] U;kf;d lnL; ,oa Jh jkBkSM+ deys'k t;arHkkbZ] ys[kk lnL; ds le{k BEFORE: HON’BLE SHRI SANDEEP GOSAIN, JM & HON’BLE SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA No. 233/JP/2023 fu/kZkj.k o"kZ@Assessment Year : 2011-12. Shree Ram Sharma Plot No. 98, Shyam Vihar-B, Akshey Pura, Delhi Bypass opposite Pankuri Hotel, Jaipur. cuke Vs. The Income Tax Officer, Ward 7(2), Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No. CASPS 3642 C vihykFkhZ@Appellant izR;FkhZ@ Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri R.S. Jaju (Advocate) jktLo dh vksj ls@ Revenue by : Smt. Monisha Choudhary (Addl.CIT) lquokbZ dh rkjh[k@ Date of Hearing : 07/06/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 5/07/2023 vkns'k@ ORDER PER: SANDEEP GOSAIN, J.M. This appeal by the assessee is directed against the order dated 29.03.2023 of ld. CIT (A), National Faceless Appeal Centre (NFAC), Delhi passed under section 250 of the IT Act, 1961 for the assessment year 2011-12. The assessee has raised the following grounds :- 1. Total amount of Rs. 78,11,225/- was received from Vijay Pura Grah Nirman Sahkari Samiti Jaipur which was deposited in Bank account in the Financial Year 2010-11 and ld. ITO considered the Income and not given the notice on the specified address which was given in the Return of AY 2011-12. Honourable Tribunal’s order dated 01.07.2019 was not properly followed. The Appellant prays that the addition in income of Rs. 79,62,930/- made in respect of cash deposited in the Bank account should be deleted. The ITO Ward 2 ITA No. 233/JP/2023 Shree Ram Sharma, Jaipur. 7(2) Siddha Nath Bhawan, Jaipur 302 032 had notice on old address of 2734, Rakdawala Kua but Asst. Year 2011-12 address was Shyam Vihar-B Plot No. 98, Akshey Pura, Delhi bypass Opposite Pankuri Hotel, Jaipur 302 013 was submitted on dated 01.05.2018 when file is amalgamated from ward 7(4) & 7(3) to 7(2) only. At least notice if actually given on correct address, then why ex-party judgement and penalty imposed u/s 271(1)(c) and demand created. 2. The assessee an amount of Rs. 95 lakh received from M/s. Vijay pura Grah Nirman Sahkari Samiti Limited, Society also confirmed the ITO Ward 7(3) and now income 7(2) society letter is also consisting in the file of ITO Ward 7(2) Sidhnath Bhawan, Jaipur, complete accounts of society since 01.04.1998 to last day of December, 2009. CIT (A) Delhi dismissed the appeal and did not consider the issue which was submitted on 25.02.2023 against the reply of your notice issued u/s 250 on dated 17.02.2023. 2. The brief facts of the case are that assessment in this case was completed under section 143(3) of the I.T. Act, 1961 on 09.07.2013 at total income of Rs. 79,62,930/- by making an addition of Rs. 78,11,225/- on account of income from other sources as unexplained cash was deposited in bank account of the assessee. Against such order, assessee filed appeal before ld. CIT (A), which has been dismissed by the ld. CIT (A)-3, Jaipur vide his order dated 31.10.2014. In the meanwhile, the AO passed the Penalty Order under section 271(1)(c) of the IT Act on 28.03.2016 imposing penalty of Rs. 23,10,165/-. Aggrieved by the order of ld. CIT (A)-3, the assessee preferred appeal before the Tribunal, the Tribunal vide its order in ITA No. 775/JP/2014 dated 01.07.2019 set aside the issue to the file of AO for fresh adjudication after providing reasonable opportunity of hearing to the assessee. 2.1. Now this is the second round of appeal before the Tribunal. The AO, on the basis of the directions given by the Tribunal vide its order dated 01.07.2019 in the 3 ITA No. 233/JP/2023 Shree Ram Sharma, Jaipur. assessee’s case, after giving opportunity of being heard, the AO passed the fresh assessment order ex parte under section 144 on 29.09.2021 on the basis of material available on record, at the same total income of Rs. 79,62,930/- by making addition of Rs. 78,11,225/- as assessed vide his earlier order dated 09.07.2013. The AO also initiated penalty proceedings under section 271(1)(c) of the IT Act, 1961 for furnishing inaccurate particulars/concealment of income and passed penalty order under section 271(1)(c) read with section 274 of the IT Act vide his order dated 26/31.03.2022 levying a penalty of Rs. 23,10,162/-. Aggrieved by the order of the AO, the assessee preferred appeal before the ld. CIT (A), who vide his order dated 29.03.2023 dismissed the appeal of the assessee. Now the assessee has come in appeal before the Tribunal. 3. We have heard rival submissions, perused the material on record and gone through the orders of the revenue authorities. From the record, we noticed that in the present case the AO passed order under section 143(3) of the IT Act, 1961 on 09.07.2013 determining total income of Rs. 79,62,930/- thereby making an addition of Rs. 78,11,225/- on account of income from other sources as unexplained cash deposits in the bank account. Against such order, the assessee filed appeal before ld. CIT (A) vide its appeal no. 356/JPR/13-14 which was dismissed by the ld. CIT (A)-3 Jaipur on 31.10.2014 thereby sustaining the entire addition made of Rs. 78,11,225/- on account of unexplained cash deposited in bank account. Against the said order of ld. CIT (A)-3, the assessee preferred appeal before the Tribunal and the Coordinate Bench of the Tribunal, Jaipur decided the appellant’s appeal in ITA No. 775/JP/2014 dated 01.07.2019 and set aside the issue for fresh adjudication to the AO after providing opportunity of hearing to the assessee before passing a fresh 4 ITA No. 233/JP/2023 Shree Ram Sharma, Jaipur. order. In the meantime, the AO passed order of penalty under section 271(1)(c) of the IT Act, 1961 on 28.03.2016 thereby imposing penalty of Rs. 23,10,162/-. It is important to mention here that while complying with the directions of the Tribunal, a fresh assessment order under section 144/Set-aside/254/143(3) of the Act was again passed by the AO on 29.09.2021 thereby determining the total income of Rs. 79,62,930/- and penalty proceedings under section 271(1)(c) of the Act was again initiated separately for furnishing inaccurate particulars of income/concealment of income and a fresh penalty order under section 271(1)(c) read with section 274 of the Act was also passed on 26/31.03.2022 thereby levying penalty of Rs. 23,10,162/-. 3.2. However, as per the above facts narrated by us, now there are two penalty orders – one passed on 28.03.2016 and 2 nd penalty order passed on 26/31.03.2022 in view of fresh assessment order dated 29.09.2021. In this way, the initial penalty order passed on 28.03.2016 has become infructuous in view of the fact that the original order of assessment dated 09.07.2013 itself has been set aside by the ITAT in ITA No. 775/JP/2014 dated 01.07.2019 which means that the original order of assessment is “ No more in existence”. Therefore, the order of penalty which arise out of the original assessment order has also been automatically become infructuous, more particularly when fresh order of assessment has already been passed on 29.09.2021 and separate penalty proceedings which was initiated has also culminated by passing order dated 26/31.03.2022. Now before us, the controversy in dispute is that the assessee has challenged the initial penalty order dated 28.03.2016 wherein the ld. CIT (A) while dismissing the appeal of the assessee has already held that the appeal filed by the assessee against the initial penalty order 5 ITA No. 233/JP/2023 Shree Ram Sharma, Jaipur. dated 28.03.2016 has become infructuous. However, before us, the assessee has reiterated the same facts which we have narrated above and in view of our above discussion, we are of the view that the initial penalty order dated 28.03.2016 has become infructuous in view of the fact that a fresh order of assessment has already been passed on 29.09.2021 for which separate penalty proceedings were initiated which culminated in passing penalty order under section 271(1)(c) read with section 274 on 26/31.03.2022. Since the initial penalty order dated 28.03.2016 has already become infructuous, therefore, the order passed by the ld. CIT (A) does not suffer from any fault and thus the same stands confirmed and upheld. Consequently the present appeal filed by the assessee is dismissed. 3.3. The assessee is at liberty to challenge the fresh penalty order dated 26/31.03.2022 in accordance with law. 4. In the result, appeal of the assessee is dismissed. Order pronounced in the open court on 5/07/2023. Sd/- Sd/- ¼ jkBkSM+ deys'k t;arHkkbZ ½ ¼lanhi xkslkbZ½ (RATHOD KAMLESH JAYANTBHAI) (SANDEEP GOSAIN) ys[kk lnL;@ Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 5/07/2023. Das/ vkns'k dh izfrfyfi vxzsf’kr@ Copy of the order forwarded to: 1. vihykFkhZ@The Appellant- Shree Ram Sharma, Jaipur. 2. izR;FkhZ@ The Respondent- The ITO Ward 7(2), Jaipur. 6 ITA No. 233/JP/2023 Shree Ram Sharma, Jaipur. 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A) 5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur. 6. xkMZ QkbZy@ Guard File {ITA No. 233/JP/2023} vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar