Tebma Shipyards Ltd., CHENNAI V. ACIT, CHENNAI

ITA 246/CHNY/2015

• Counselvise Citation: 24621714 RSA 2015
• Duration Of Justice: 3 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-05-2015
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 29-01-2015
• Court: TRIBUNAL
• Department Lawyers: P RADHAKRISHNAN
• Assessee Lawyers: B RAMAKRISHNAN

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , A B ENCH, CHENNAI . . . , . , % BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ I.T.A.NO. 246/MDS/2015 ( / ASSESSMENT YEAR: 2008-09) M/S. TEBMA SHIPYARDS LTD., 2 ND FLOOR,M.T.RAJENS PROPERTIES, 40, BAZULLAH ROAD, T.NAGAR, CHENNAI - 600 017. VS THE ASSISTANT COMMISSIONER OF INCOME-TAX, COMPANY CIRCLE-III(1) CHENNAI - 600 034. PAN: AAACT1281B ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR. B.RAMAKRISHNAN, C.A. /RESPONDENT BY : MR. P.RADHAKRISHNAN, JCIT /DATE OF HEARING : 23 RD APRIL, 2015 /DATE OF PRONOUNCEMENT : 1 ST MAY, 2015 / O R D E R PER N.R.S. GANESAN, JM: THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)- III, CHENNAI DATED 31.10.2014 CONFIRMING PENALTY LEVIE D UNDER SECTION 271(1)(C) OF THE ACT FOR THE ASSESSMENT YE AR 2008- 09. 2. SHRI B.RAMAKRISHNAN, LEARNED REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT ASSESSING OFFICER LEVIED PE NALTY OF ` 6,94,307/- ON THE GROUND THAT THE ASSESSEE CONCEALE D PARTICULARS OF INCOME. ON A QUERY FROM THE BENCH, W HAT HAPPENED TO THE QUANTUM ADDITION MADE BY THE ASSESS ING 2 ITA NO.246/MDS/2015 OFFICER, LEARNED REPRESENTATIVE CLARIFIED THAT IN F ACT, THE ASSESSEE FILED AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS), HOWEVER, THE SAME WAS WITHDRAWN. SIN CE THE APPEAL WAS WITHDRAWN BY THE ASSESSEE IN RESPECT OF QUANTUM APPEAL, THE COMMISSIONER OF INCOME TAX (APP EALS) CONFIRMED THE PENALTY LEVIED BY THE ASSESSING OFFIC ER. 3. SHRI P.RADHAKRISHNAN, LEARNED DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDERS OF LOWER AUTHOR ITIES. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND PERUSED THE RELEVANT MATERIAL ON RECORD. I T IS NOT IN DISPUTE THAT ASSESSEE FILED AN APPEAL AGAINST THE Q UANTUM ADDITION MADE BY THE ASSESSING OFFICER BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). HOWEVER, THE SAID APPEAL WAS WITHDRAWN BY THE ASSESSEE. IT IS NOT KN OWN HOW THE COMMISSIONER OF INCOME TAX (APPEALS) PERMITTED THE ASSESSEE TO WITHDRAW THE APPEAL FILED BEFORE HIM, W HEN HE HAS NO SUCH POWER TO ALLOW THE ASSESSEE TO WITHDRAW THE APPEAL. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT WHEN APPEAL WAS FILED BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS), THE CIT(A) IS BOUND TO DISPOSE OF THE SA ME ON 3 ITA NO.246/MDS/2015 MERITS. SINCE THE APPEAL WAS WITHDRAWN BY THE ASSES SEE, THE COMMISSIONER OF INCOME TAX (APPEALS) DISMISSED THE APPEAL AS WITHDRAWN AND CONFIRMED THE PENALTY LEVIED BY TH E ASSESSING OFFICER WITHOUT ANY APPRECIATION OF MATER IALS AVAILABLE ON RECORD. 5. IT IS WELL SETTLED PRINCIPLES OF LAW THAT ASSESS MENT PROCEEDINGS AND PENALTY PROCEEDINGS ARE SEPARATE AN D DISTINCT AND THEREFORE, ASSESSING OFFICER IS EXCEPT ED TO REAPPRECIATE THE MATERIALS AVAILABLE ON RECORD. LIK EWISE, WHEN THE APPEAL FILED BEFORE THE COMMISSIONER OF IN COME TAX (APPEALS), THE COMMISSIONER OF INCOME TAX (APPE ALS) IS ALSO EXPECTED TO REAPPRECIATE THE MATERIALS AVAILAB LE ON RECORD WHILE DISPOSING THE APPEAL FILED BY THE ASSE SSEE. IN THIS CASE, COMMISSIONER OF INCOME TAX (APPEALS) WIT HOUT REAPPRECIATION OF THE MATERIALS AVAILABLE ON RECORD , SIMPLY DISMISSED THE APPEAL ON THE GROUND THAT APPEAL AGAI NST THE ORDER OF ASSESSMENT WAS WITHDRAWN. THIS TRIBUNAL IS OF THE OPINION THAT MERELY BECAUSE APPEAL WAS WITHDRAWN BY THE ASSESSEE THAT CANNOT BE A REASON FOR CONFIRMING P ENALTY LEVIED BY THE ASSESSING OFFICER AND THE COMMISSIONE R OF INCOME TAX (APPEALS) HAS TO INDEPENDENTLY EXAMINE T HE 4 ITA NO.246/MDS/2015 MATERIALS AVAILABLE ON RECORD. ACCORDINGLY, THE ORD ER OF THE COMMISSIONER OF INCOME TAX (APPEALS) IS SET ASIDE A ND THE ISSUE OF PENALTY IS REMITTED BACK TO THE FILE OF TH E COMMISSIONER OF INCOME TAX (APPEALS). THE COMMISSIO NER OF INCOME TAX (APPEALS) SHALL RECONSIDER LEVY OF PE NALTY AFRESH IN ACCORDANCE WITH LAW AND THEREAFTER DECIDE THE SAME AFTER GIVING A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. IT IS MADE CLEAR THAT COMMISSIONER OF INC OME TAX (APPEALS) SHALL REAPPRECIATE THE ENTIRE MATERIALS A VAILABLE ON RECORD AND THEREAFTER PASS A SPEAKING ORDER BY GIVI NG DETAILED REASONS FOR THE CONCLUSION REACHED BY HIM. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 1 ST DAY OF MAY, 2015. SD/- SD/- (A.MOHAN ALANKAMONY) (N.R.S.GANESAN) (. ) ( . . . ) +/ ACCOUNTANT MEMBER - + /JUDICIAL MEMBER - /CHENNAI, / /DATED 1 ST MAY, 2015 SOMU 01 21 / COPY TO: 1. APPELLANT 2. RESPONDENT 3. 3 () /CIT(A) 4. 3 /CIT 5. 1 5 /DR 6. /GF .