Anand Prakash Kothari, Ahmednagar V. Income-tax Officer, Ward - 4, Ahmednagar

ITA 2437/PUN/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8429 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 9 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 17-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K VERMA
• Assessee Lawyers: HARI KRISHAN
• Keywords: Principle of natural justice
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO. 2437 /P U N/201 7 / ASSESSMENT YEAR : 20 08 - 09 MR. ANAND PRAKASH KOTHARI, A.P. BELAPUR, SHRIRAMPUR, AHMEDNAGAR - 413715 . / APPELLANT PAN: A HRPK1664L VS. THE INCOME TAX OFFICER , WARD 4, AHMEDNAGAR . / RESPONDENT / APPELLANT BY : SHRI HARI KRISHAN / RESPONDENT BY : SHRI M.K. VERMA / DATE OF HEARING : 0 8 . 0 7 .201 9 / DATE OF PRONOUNCEMENT: 17 . 0 7 .201 9 / ORD ER PER SUSHMA CHOWLA, J M : THE APPEAL FILED BY ASSESSEE IS AGAINST ORDER OF CIT (A) - 2 , PUNE , DATED 14 . 0 7 .201 7 RELATING TO ASSESSMENT YEAR 20 08 - 09 AGAINST PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . 2. THE ASSES SEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ORDER OF ASSESSING OFFICER LEVYING PENALTY UNDER SECTION 271( 1 )(C) OF THE ACT. ITA NO. 2437 /P U N/20 1 7 ANAND P. KOTHARI 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN HOLDING THAT THE ASSESSEE WAS LIABLE FOR CONCEALING PARTICULARS OF INCOME AND THAT THE ASSESSING OFFICER WAS JUSTIFI ED IN LEVYING THE CONCEALMENT PENALTY OF RS.4,54,603/ - . THE LD. COMMISSION OF INCOME TAX (APPEALS) HAS REACHED THESE CONCLUSIONS WITHOUT EVEN GOING INTO THE MERITS OF THE ADDITIONS MADE TO THE INCOME OF ASSESSEE BY THE ASSESSING OFFICER. 3. ON THE FACTS A ND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED TO APPRECIATE THAT THE PENALTY PROCEEDINGS INITIATED IN THIS CASE WERE ILLEGAL, BAD IN LAW AND AB - INIO - VOID , BECAUSE THE ASSESSING OFFICER HAS NOT SP ECIFIED THE CHARGE/LIMB OF SECTION 271( 1 )(C) OF THE ACT , FOR WHICH THE PENALTY WAS TO BE LEVIED AND THE SHOW CAUSE NOTICE UNDER SECTION 271( 1 )(C) R.W.S. 274 OF THE INCOME TAX ACT WAS ISSUED FOR CONCEALING THE PARTICULARS OF INCOME OR FOR FURNISHING INACCUR ATE PARTICULARS OF INCOME. T HE AMBIGUITY IN THE SHOW CAUSE NOTICE ABOUT THE CHARGE/LIMB FOR LEVYING THE PENALTY HAS SERIOUSLY IMPINGED UPON THE PRINCIPLES OF NATURAL JUSTICE. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED COMM ISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN HOLDING THAT THE ASSESSING OFFICER HAS TICKED THE CHARGE/LIMB OF CONCEALMENT OF PARTICULARS OF INCOME IN THE NOTICE UNDER SECTION 274 OF INCOME TAX ACT R.W.S 271( 1 )(C) OF INCOME TAX ACT. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN HOLDING THAT THE PROCEEDINGS INITIATED UNDER SECTION 271( 1 )(C) OF INCOME TAX ACT IN THIS CASE WERE VALID PROCEEDINGS. 6. ON THE FACTS AND IN THE CIRCUM STANCES OF THE CASE AND IN LAW THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN DECIDING THE PENALTY APPEAL OF THE ASSESSEE EVEN THOUGH THE QUANTUM APPEAL IN THIS CASE WERE STILL PENDING BEFORE THE HON'BLE INCOME TAX APPELLATE TRIBUNAL PUNE AN D A SPECIFIC REQUEST WAS MADE BY THE ASSESSEE VIDE LETTERS DATED 19 - 09 - 2016 AND 08 - 06 - 2017 TO KEEP THE PENALTY PROCEEDINGS PENDING TILL THE DISPOSAL OF THE QUANTUM APPEAL BY THE HON'BLE INCOME TAX APPELLATE TRIBUNAL. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS COMPLETELY IGNORED THE JUDGMENT OF THE HON'BLE JURISDICTIONAL HIGH COURT OF BOMBAY IN THE CASE OF R. B. SHREERAM DURGAPRASAD (2016) 65 TAXMANN.COM 293 (BOMBAY) IN WHICH IT HAS BEEN HELD THAT WHERE THE APPEAL OF THE ASSESSEE AGAINST THE ADDIT IONS MADE IN THE ASSESSMENT WAS PENDING BEFORE THE TRIBUNAL THE ORDER IMPOSING PENALTY UNDER SECTION 271( 1 )(C) OF INCOME TAX ACT IS PREMATURE, ILLEGAL AND WITHOUT JURISDICTION. 7. THE APPELLATE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEA LS) CONFIRMING THE CONCEALMENT PENALTY LEVIED BY THE ASSESSING OFFICER UNDER SECTION 271( 1 )(C) OF THE ACT IS ILLEGAL AND WITHOUT JURISDICTION, AS IT HAS BEEN PASSED WHEN THE APPEAL OF THE ASSESSEE AGAINST THE ADDITIONS MADE IN THE ASSESSMENT ORDER WAS STIL L PENDING BEFORE THE HON'BLE INCOME TAX APPELLATE TRIBUNAL. 3. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE ISSUE ON MERITS WAS SENT BACK TO THE FILE OF ASSESSING OFFICER, WHO IN TURN, ITA NO. 2437 /P U N/20 1 7 ANAND P. KOTHARI 3 HAS PASSED ASSESSMENT ORDER, CONSEQUENT LY, PENALTY LEVIED ON ORIGINAL ASSESSMENT ORDER DO NOT STAND. 4. WE FIND MERIT IN THE PLEA OF ASSESSEE SINCE THE BASIS FOR LEVY OF PENALTY I.E. ADDITION MADE BY ASSESSING OFFICER HAS BEEN SENT BACK TO THE ASSESSING OFFICER, WHO IN TURN, HAS THEN PASSED CO NSEQUENT ORDER. IN SUCH CIRCUMSTANCES, WHERE THE BASIS FOR LEVY OF PENALTY DO NOT STAND, THEN THERE IS NO MERIT IN THE AFORESAID LEVY OF PENALTY. HENCE, WE CANCEL THE SAME. THUS, THE GROUNDS OF APPEAL RAISED BY ASSESSEE STANDS ALLOWED. 5 . IN THE RESULT , THE APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON THIS 17 TH DAY OF JU LY , 201 9 . SD/ - SD/ - (ANIL CHATURVEDI) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 17 TH JULY , 201 9 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT(A) - 2 , PUNE ; 4. THE PR. CIT - 2 , PUNE ; 5. 6. , , / DR B , ITAT, PUNE ; / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE