Mr. Purshottam Da, S/o Shri Laxman Prasad, Mathura V. ITO, Mathura

ITA 259/AGR/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7042 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 28-04-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 17-06-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K SHARMA
• Assessee Lawyers: P K SEHGAL
• Keywords: Period of limitation; Time period of passing order
• Section: 273B; 142(1); 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA (SMC) BENCH, AGRA BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO.259/AGR./2009 ASSTT. YEAR : 2002-03 SHRI PURSHOTTAM DAS, VS. INCOME TAX OFFICER - 3( 3), S/O. SHRI LAXMAN PRASAD, MATHURA. VILLAGE BIRJAPUR, P.O. ARUKI, DISTT. MATHURA. (PAN: AAXPD 1257 D) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI P.K. SEHGAL. ADVOCATE RESPONDENT BY : SHRI A.K. SHARMA, JR. D.R. ORDER THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 16.03.2009 PASSED BY THE LD. CIT(A), AGRA. 2. ORIGINALLY, THE ASSESSEE HAS RAISED 6 GROUNDS OF APPEAL, BUT LATER ON, ON 25.02.2011, THE ASSESSEE FILED CONCISE GROUNDS OF A PPEAL, WHICH ARE REPRODUCED AS UNDER :- 1. THAT THE LEARNED CIT(A)-I, AGRA, HAS ERRED BOTH IN LAW AND ON FACTS IN SUSTAINING THE PENALTY OF ` 10,000/- ARBITRARILY IMPOSED U/S 271(1)(B) OF I.T. ACT, 1961, BY THE LEARNED ITO 3(3 ), MATHURA, WHICH DESERVES TO BE DELETED. 2 2. THAT THE PENALTY OF ` 10,000/- U/S 271(1)(B) BEING IMPOSED BEYOND THE LIMITATION PERIOD, THUS IT IS BARRED BY LIMITATION AND HENCE IT IS ABINITIO VOID, ILLEGAL AND BAD IN LAW. 3. THAT IN ANY VIEW OF THE ASSESSEES CASE, HE BEIN G PREVENTED BY SUFFICIENT CAUSE, WHICH RESULTED INTO ALLEGED FAILU RE, IF ANY, THEREFORE, IN VIEW OF THE PROVISIONS OF SECTION 273B READ WITH SECTION 271(1)(B) OF I.T. ACT, 1961, THE PENALTY OF ` 10,000/- DESERVES TO BE DELETED. 3. AT THE TIME OF HEARING, SHRI P.K. SEHGAL, ADVOCA TE, LD. AUTHORISED REPRESENTATIVE OF THE ASSESSEE MADE A STATEMENT THA T HE IS NOT PRESSING GROUND NO.2. HE HAS ALSO ENDORSED THE SAME ON THE ORIGINA L GROUNDS OF APPEAL. 4. THE FACTS RELATING TO THE ISSUE IN DISPUTE ARE T HAT THE ASSESSEE FILED HIS RETURN OF INCOME ON 13.02.2003 DECLARING INCOME OF ` 56,896/-. THE ASSESSING OFFICER INITIATED THE PROCEEDINGS UNDER SECTION 147 OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) BY ISSUING NOTICE DATED 27/12/2004. O N 21.02.2005, THE ASSESSING OFFICER ALSO ISSUED NOTICE UNDER SECTION 142(1) OF THE ACT. IN RESPONSE TO THE SAME, THE LD. AUTHORISED REPRESENTATIVE OF THE ASSESSEE A PPEARED AND SOUGHT ADJOURNMENT WHICH WAS GRANTED BY THE ASSESSING OFFICER FOR 16.0 3.2005. THE ASSESSEE AGAIN REQUESTED FOR ADJOURNMENT AND THE ASSESSING OFFICER ADJOURNED THE CASE FOR 20.04.2005, 29.04.2005, 16.05.2005. THE ASSESSING OFFICER AGAIN ADJOURNED THE CASE FOR 26.05.2005 BY ISSUING THE SHOW CAUSE NOTIC E TO THE ASSESSEE AS TO WHY THE ASSESSMENT SHOULD NOT BE COMPLETED UNDER SECTION 14 4 OF THE ACT. IN RESPONSE TO 3 THE SAME, THE LD. AUTHORISED REPRESENTATIVE OF THE ASSESSEE APPEARED AND FURNISHED INFORMATION ON SOME OF THE ISSUES RAISED BY THE ASS ESSING OFFICER AND THE CASE WAS AGAIN ADJOURNED FOR 13.06.2005, 22.08.2005, 30.08.2 005 AND LASTLY ON 31.08.2005. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT UNDE R SECTION 144 OF THE ACT BY MAKING THE ADDITIONS. AGGRIEVED BY THE SAME, THE A SSESSEE FILED AN APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY WHO, VIDE THE ORD ER DATED 19.09.2006, DISMISSED THE APPEAL FILED BY THE ASSESSEE. KEEPING IN VIEW OF THE NON APPEARANCE OF THE ASSESSEE, THE ASSESSING OFFICER INITIATED THE PENAL TY PROCEEDINGS UNDER SECTION 271(1)(B) OF THE ACT BY ISSUING A SHOW CAUSE NOTICE DATED 15.03.2007 AND LASTLY, THE ASSESSING OFFICER IMPOSED THE PENALTY IN DISPUT E UNDER SECTION 271(1)(B) OF THE ACT ON 25-03.2008. 5. AS I HAVE STATED ABOVE, THAT THE ASSESSEE CHALLE NGED THE ASSESSMENT UNDER SECTION 144 OF THE ACT DATED 31.08.2005 BY WAY OF F ILING APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY WHO, VIDE ORDER DATED 19.09.200 6, CONFIRMED THE ORDER OF THE ASSESSING OFFICER. AGGRIEVED BY THE SAME, THE ASSES SEE FILED THE APPEAL BEFORE THE I.T.A.T., AGRA BENCH WHO, VIDE ORDER DATED 31.07.20 08, SET ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER TO PASS A SPEAKING OR DER. 4 6. THE LD. COUNSEL FOR THE ASSESSEE NARRATED THESE FACTS BEFORE THE LD. FIRST APPELLATE AUTHORITY WHO, VIDE ORDER DATED 16.03.200 9, CONFIRMED THE PENALTY OF ` 10,000/- LEVIED BY THE ASSESSING OFFICER UNDER SECT ION 271(1)(B) OF THE ACT. AGGRIEVED BY THE SAME, THE ASSESSEE HAS FILED THE P RESENT APPEAL. 7. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE NARRATED THE BRIEF FACTS OF THE CASE AS I HAVE NARRATED IN THE FOREGOI NG PARAGRAPHS AND MADE A STATEMENT THAT THE MAIN ASSESSMENT ORDER DATED 31.0 8.2005, ON WHICH THE PENALTY IN DISPUTE HAS BEEN IMPOSED BY THE ASSESSING OFFICE R, HAS ALREADY BEEN CANCELLED BY THE I.T.A.T. AGRA, BENCH VIDE ORDER DATED 31.07. 2008. THEREFORE, THE PENALTY IN DISPUTE IS NOT LEVIABLE WHEN THE ORIGINAL ASSESS MENT IS NO MORE. HE HAS ALSO FILED PAPER BOOK CONTAINING PAGE NOS.1 TO 15, IN WH ICH HE HAS ATTACHED COPY OF WRITTEN SUBMISSION FILED BEFORE THE LD CIT(A)-I, AG RA, COPY OF NOTICE U/S. 142 DATED 21.02.2005, COPY OF ADJOURNMENT APPLICATION F ILED BEFORE THE ITO 3(3), AGRA, COPY OF APPELLATE ORDER OF I.T.A.T. AGRA BENCH, AGR A IN ASSESSEES OWN CASE AND COPY OF ASSESSMENT ORDER U/S. 251/143(3) OF I.T. AC T, 1961 DATED 21.12.2009. 8. HE ALSO CERTIFIED THAT THE DOCUMENTS ATTACHED WI TH THE PAPER BOOK HAVE ALREADY BEEN PLACED BEFORE THE REVENUE AUTHORITIES BELOW AND ARE AVAILABLE ON 5 RECORD. AT THE END, HE REQUESTED THAT THE PENALTY IN DISPUTE MAY BE CANCELLED BY ACCEPTING THE APPEAL FILED BY THE ASSESSEE. 9. THE LD. DEPARTMENTAL REPRESENTATIVE HAS NOT CONT ROVERTED THE ARGUMENTS ADVANCED BY THE LD. COUNSEL FOR THE ASSESSEE AND HE RELIED UPON THE IMPUGNED ORDER. 10. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT RECORDS AVAILABLE WITH ME, ESPECIALLY THE ASSESSMENT ORDER DATED 31.08.200 5, ORDER PASSED BY THE CIT(A) DATED 19.09.2006 AND THE ORDER DATED 31.07.2008 PAS SED BY THE I.T.A.T. AGRA BENCH, WHICH THE ASSESSEE HAS ATTACHED WITH THE PAP ER BOOK. FOR THE SAKE OF CONVENIENCE, THE RELEVANT PORTION OF THE ORDER DATE D 31.07.2008 OF THE I.T.A.T. AGRA BENCH, AT PAGE NOS.3 & 4, PARA NOS. 3.4 TO 5 A RE REPRODUCED AS UNDER :- 3.4 WE ARE NOT IMPRESSED BY THE ARGUMENTS OF THE L D. A.R. THE TRIBUNAL, BY PROPOSING WHAT IT DID, WAS ONLY RESTOR ING THE PARTIES BACK TO THE POSITION IN WHICH THEY WERE PRIOR TO CO MING BEFORE IT. WHY THE LD A.R. DID NOT CHOOSE TO ARGUE THE LEGAL G ROUND(S) IN THE FIRST INSTANCE, AND WHICH IN ANY CASE, HE COULD BEFORE TH E LD CIT(A), AND THE FACT OF THE OFFICE OF THE LD. CIT(A) AND AO BEI NG LOCATED AT DIFFERENT PLACES/STATIONS, EVEN IF SO, COULD HARDLY BE CONSIDERATIONS(S) HAVING A BEARING IN THE MATTER. ON THE OTHER HAND, WE APPRECIATE THE FAIR CONCESSION BY THE LD. D.R. AS REGARDS HIS RID ER, THERE IS NO GAINSAYING THAT AN APPELLATE AUTHORITY CANNOT PUT A NY PARTY BEFORE IT IN A POSITION WORSE THAN IN WHICH IT WAS BEFORE COM ING TO IT AND, 6 FURTHER, THAT THE COURT CANNOT ACT TO THE PREJUDICE OF EITHER PARTY BEFORE IT, SO THAT THE SAME IS EVEN OTHERWISE A TRI TE LAW. 4. IN THE CIRCUMSTANCES, THEREFORE, WE ONLY CONSIDE R IT FIT THAT THE MATTER BE RESTORED BACK TO THE FILE OF THE AO AND I T SHALL BE OPEN TO THE ASSESSEE TO PLEAD ALL OR ANY OF THE GROUNDS ASSUMED BY IT BEFORE THE LD. CIT(A) BEING AGGRIEVED ON THAT SCORE, BEFORE HI M, AND WHO SHALL ADJUDICATE AFRESH AFTER ALLOWING A REASONABLE OPPOR TUNITY OF HEARING TO THE ASSESSEE (AND WHICH MAY ALSO INCLUDE FURNISH ING OF ANY MATERIAL IT WISHES TO PLACE RELIANCE ON), WHO HAS U NDERTAKEN TO EXTEND FULL COOPERATION IN THE SAID PROCEEDINGS, PER A SPE AKING ORDER, IN ACCORDANCE WITH LAW. 5. IN THE RESULT, THE APPEAL BY THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. 11. AFTER GOING THROUGH THE ORDER DATED 31.07.2008 PASSED BY THIS BENCH, IN WHICH THIS BENCH HAS RESTORED THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER WITH DIRECTION TO ADJUDICATE THE ISSUE IN DISPUTE R AISED BY THE ASSESSEE IN THE GROUNDS AFRESH, AFTER AFFORDING REASONABLE OPPORTUN ITY OF HEARING TO THE ASSESSEE. IN SHORT, IN MY OPINION, THE ASSESSMENT IN DISPUTE HAS BEEN SET ASIDE/CANCELLED BY THIS BENCH VIDE ORDER DATE 31.07.2008, MEANING THER EBY, THE ASSESSMENT DATED 31.08.2005 REMAINS NO MORE AND THE PENALTY IN DISPU TE CANNOT BE LEVIED ON THE NON EXISTING ORDER. I CANNOT UPHOLD THE PENALTY IN DIS PUTE WHEN THE ORIGINAL ASSESSMENT IS NO MORE. THEREFORE, KEEPING IN VIEW THE FACTS A ND CIRCUMSTANCES OF THE PRESENT CASE, ESPECIALLY THE ORDER OF THIS BENCH DATED 31.0 7.2008 (SUPRA), THE PENALTY IN 7 DISPUTE DESERVES TO BE CANCELLED. I CANCEL THE SAM E BY ACCEPTING THE APPEAL FIELD BY THE ASSESSEE. 12. AS REGARDS TO THE ISSUE INVOLVED IN GROUND NO.2 I.E. LEGAL GROUND, THE LD. COUNSEL FOR THE ASSESSEE HAS NOT PRESSED THE SAME. THEREFORE, THE SAME IS DISMISSED. 13. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 28.04.2011) SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED: 28 TH APRIL, 2011 PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR, ITAT, AGRA BENCH, AGRA 6. GUARD FILE ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRI BUNAL, AGRA TRUE COPY