Shri Arvindbhai D.Mistry,HUF, Surat V. The Income tax Officer, Ward-3(3), Surat

ITA 2443/AHD/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6415 (ITAT-AHMEDABAD)
• Duration Of Justice: 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 17-06-2011
• Assessment Year: 1998-1999
• Appeal Filed On: 03-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, B BENCH (BEFORE S/SHRI G.D. AGARWAL, VICE-PRESIDENT AND T.K. SHARMA, JUDICIAL MEMBER) ITA NO.2443/AHD/2010 [ASSTT. YEAR : 1998-1999] SHRI ARVINDBHAI D. MISTRY-HUF A/2, CORONET APARTMENT OPP. DHARAMYUG SOCIETY-2 GHOD DOD ROAD, SURAT 395 007 PAN : AABHA 9664 H VS. ITO, WARD-3(3) SURAT. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI MANISH J. SHAH REVENUE BY : SHRI SAMIR TEKRIWAL O R D E R PER G.D. AGARWAL, VICE-PRESIDENT : THIS IS ASSESSEES APPEAL AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME -TAX (APPEALS)-II, SURAT DATED 28.8.2008 FOR A.Y.1998-1999 ARISING OUT OF THE ORDER OF THE AO UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1 961. 2. THE ONLY GROUND IN THIS APPEAL IS AGAINST THE LE VY OF PENALTY OF RS.91,805/- UNDER SECTION 271(1)(C) OF THE ACT. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL PLACED BEFORE US. THE APPEAL FILED BY THE ASSESSEE IS LAT E. HOWEVER, WE FIND THAT THE COUNSEL OF THE ASSESSEE HAS GIVEN AFFIDAVIT IN WHICH HE HAS DEPOSED THAT DELAY IN FILING OF THE APPEAL IS DUE TO HIS AD VICE. CONSIDERING THE FACTS OF THE CASE, WE DEEM IT PROPER TO CONDONE THE DELAY AND ADMIT THE APPEAL FILED BY THE ASSESSEE. ITA NO.2443/AHD/2010 -2- 4. ON MERIT, IT WAS POINTED OUT BY THE LEARNED COUN SEL THAT IN THE QUANTUM APPEAL, THE ITAT HAS QUASHED REOPENING OF T HE ASSESSMENT VIDE ORDER DATED 23-4-2010 IN ITA NO.471/AHD/2007. ONCE THE ASSESSMENT ORDER HAS BEEN QUASHED, THE PENALTY BASED UPON SUCH ASSESSMENT CANNOT SURVIVE, THE SAME SHOULD BE CANCELLED. 5. THE LEARNED DR, ON THE OTHER HAND, RELIED UPON T HE ORDER OF THE AUTHORITIES BELOW. 6. WE FIND THAT THIS PENALTY PROCEEDINGS WAS INITIA TED IN THE REASSESSMENT ORDER UNDER SECTIONS 144/147 OF THE AC T DATED 20-3-2006. IN THE APPEAL AGAINST SUCH ASSESSMENT ORDER, THE IT AT IN ITA NO.471/AHD/2007 HELD THE REOPENING OF THE ASSESSMEN T TO BE INVALID AND ACCORDINGLY, THE ITAT QUASHED THE ASSESSMENT ORDER PASSED IN PURSUANCE TO REOPENING U/S.147. ONCE THE ASSESSMENT ORDER IT SELF HAS BEEN QUASHED, ANY PENALTY LEVIED ON THE BASIS OF SUCH ASSESSMENT ORDER CANNOT SURVIVE. ACCORDINGLY, THE PENALTY LEVIED UNDER SECTION 271(1 )(C) OF THE ACT IS CANCELLED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN OPEN COURT ON 17 TH JUNE, 2011 SD/- SD/- (T.K. SHARMA) JUDICIAL MEMBER (G.D. AGARWAL) VICE-PRESIDENT PLACE : AHMEDABAD DATE : 17-06-2011 C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A)