Sh. Raj Kumar Avasthi, Ludhiana V. ACIT, CC-II, Ludhiana

ITA 261/CHANDI/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0042 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 2 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 15-05-2019
• Assessment Year: 2013-2014
• Appeal Filed On: 01-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Assessee Lawyers: ADITYA KUMAR
• Keywords: Set aside

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH B CHANDIGARH !, ' # $ , $ % & ' ( ) , *+ # BEFORE: SMT. DIVA SINGH, JM & SMT.ANNAPURNA GUPTA, AM ./ ITA NOS. 261 & 262/CHD/2018 A.YS : 2013-14 & 2014-15 SHRI RAJ KUMAR AVASTHI, H.NO. 172, COL. GURDIAL SINGH ROAD,, CIVIL LINES, LUDHIANA. VS THE ACIT, CENTRAL CIRCLE-II, LUDHIANA. PAN NO: AASPA1953E APPELLANT RESPONDENT & ./ ITA NOS. 263 & 264/CHD/2018 A.YS : 2013-14 & 2014-15 SHRI MUNISH AVASTHI, H.NO. 172, COL. GURDIAL SINGH ROAD,, CIVIL LINES, LUDHIANA. VS THE ACIT, CENTRAL CIRCLE-II, LUDHIANA. PAN NO: AAEPA1819K APPELLANT RESPONDENT ! ASSESSEE BY : SHRI ASHWANI KUMAR, CA & SHRI ADITYA KUMAR, CA ' ! REVENUE BY : SHRI MANJIT SINGH, CIT-DR # $ % DATE OF HEARING : 15.05.2019 &'() % D ATE OF PRONOUNCEMENT : 23.05.2019 *./ ORDER PER DIVA SINGH THESE ARE FOUR APPEALS FILED BY THE RESPECTIVE ASS ESSEES PRAYING FOR QUASHING OF THE PENALTY IMPOSED U/S 271AAB IN 2013- 14 AND 2014-15 ASSESSMENT YEARS WHEREIN THE CIT(A)-5, LUDHIANA BY AN IDENTICAL ORDER DATED 07.12.2017 IN THE RESPECTIVE APPEALS HAS DISM ISSED THE ASSESSEE'S APPEAL UPHOLDING THE PENALTY IMPOSED BY THE AO. ITA 261 TO 264/CHD/2018 A.Y. 2013-14, 2014-15 PAGE 2 OF 4 2. IT WAS COMMON STAND OF THE PARTIES BEFORE THE BE NCH THAT FACTS, CIRCUMSTANCES AND POSITION OF LAW IN THE RESPECTIVE APPEALS IS IDENTICAL. ACCORDINGLY, IT WAS A JOINT PRAYER OF THE PARTIES T HAT THE ARGUMENTS ADVANCED IN ITA 261/CHD/2018 WILL FULLY APPLY TO THE REMAINI NG APPEALS. 3. IN THE SAID BACKGROUND, THE LD. AR INVITED ATTEN TION TO THE PENALTY ORDER DATED 29.09.2016 WHEREIN REFERENCE IS MADE TO SEARCH & SEIZURE OPERATION CARRIED OUT ON 24.10.2013 IN M/S SPORTKIN G INDIA GROUP OF CASES WHEREIN THE RESPECTIVE ASSESSEES WERE PARTNERS. IN VITING ATTENTION TO THE LAST PAGE OF THE PENALTY ORDER, IT WAS SUBMITTED TH AT THE STATUTORY APPROVAL U/S 274(2), IT HAS BEEN RECORDED, HAS BEEN GRANTED ON 30.09.2016. THE SPECIFIC NARRATION RELIED UPON IS EXTRACTED HEREUND ER FOR READY REFERENCE : THIS PENALTY HAS BEEN IMPOSED AFTER OBTAINING THE PRIOR APPROVAL UNDER SECTION 274(2) OF THE I.T. ACT 1961 FROM THE ADDITIONAL CIT , CENTRAL RANGE, LUDHIANA, ACCORDED VIDE HIS LETTER NO. 1032 DATED 30.09.16. 3.1. ACCORDINGLY, IT WAS HIS SUBMISSION THAT THE SA ID STATUTORY APPROVAL CANNOT BE SAID TO BE A PRIOR APPROVAL FOR AN ORDER PASSED ON 29.09.2016. ATTENTION WAS INVITED TO THE RESPECTIVE ORDERS FOR THE SAID SUBMISSION. 3.2 IT WAS SUBMITTED THAT IN THE CASE OF M/S SPORTK ING (INDIA) LTD. CONSIDERING IDENTICAL FACTS THE ITAT VIDE ITS ORDER DATED 22.04.2019 IN ITA 490 AND 491/CHD/2018 WAS PLEASED TO QUASH THE PENAL TY. THE ISSUE IN EACH OF THE PRESENT APPEALS, IT WAS SUBMITTED, WAS ON THESE SIMILAR SET OF FACTS AND CIRCUMSTANCES FULLY COVER THE PRESENT APP EALS. SPECIFIC ATTENTION WAS INVITED TO PARAS 10 TO 12 OF THE AFORESAID DECI SION. 3.3 THE LD. AR FURTHER SUBMITTED THAT BY ANOTHER OR DER, THE ITAT VIDE DATED 24.04.2019 IN THE CASE OF SHRI CHETAN RUPAL, LUDHIANA IN ITA 267/CHD/2018 FOLLOWED THE VERY SAME VIEW. (COPIES O F THESE DECISIONS WERE FILED). 4. THE LD. CIT-DR SHRI MANJIT SINGH ON BEING CONFRO NTED WITH THE SAID ORDERS SUBMITTED THAT HEREIN ALSO, HE WOULD RELY UP ON IDENTICAL ARGUMENTS ADVANCED ON BEHALF OF THE REVENUE WHICH HAD BEEN AD DRESSED IN PARA 9 OF THE AFORESAID ORDER OF THE ITAT SO AS TO SUBMIT THA T THE DATES MENTIONED IN THE STATUTORY APPROVAL MAY HAVE BEEN A TYPOGRAPHICA L ERROR. APART FROM THAT ITA 261 TO 264/CHD/2018 A.Y. 2013-14, 2014-15 PAGE 3 OF 4 ORAL ASSERTION, IT WAS HIS SUBMISSION THAT HE HAS N O OTHER EVIDENCE TO REFER TO. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS SEEN THAT AN IDENTICAL ISSUE HAS BEEN CONSIDERED BY THE CO-ORDINATE BENCH IN THE GROUP CASE OF THE A SSESSEES ITSELF WHEREIN THE FOLLOWING DEPARTMENTAL SUBMISSIONS OFFERED CAME UP FOR CONSIDERED: 9. IN HER RIVAL SUBMISSIONS THE LD. SR. DR STRONGLY SU PPORTED THE ORDER OF THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THERE MAY BE A TYPOGRAPHICAL MISTAKE IN THE ORDER PASSED UNDER SECTION 271AAB(1) OF THE ACT AND BY MISTAKE THE DATE WAS MENTIONED AS 29/09/2016 WHILE THE DCR NUMBER WAS DT . 30/09/2016. 6. CONSIDERING THE SAME, IT IS SEEN THAT THE ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE VIDE PARAS 10 TO 12 HOLDING AS UNDE R : 10. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH TH E PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. TO RESOLVE THE PRESENT CON TROVERSY IT IS RELEVANT TO REFER THE PROVISIONS CONTAINED IN SECTION 274(2) OF THE ACT W HICH READ AS UNDER: 'SECTION 274(1 J (2) NO ORDER IMPOSING A PENALTY UNDER THIS CHAPTER SHALL BE MADE- [A] BY THE INCOME-TAX OFFICER, WHERE THE PENALTY EX CEEDS TEN THOUSAND RUPEES; (B) BY THE ASSISTANT COMMISSIONER OR DEPUTY COMMISS IONER, WHERE THE PENALTY EXCEEDS TWENTY THOUSAND RUPEES, EXCEPT WITH THE PRIOR APPROVAL OF THE JOINT COMMISS IONER.' 11. FROM THE ABOVE PROVISIONS CONTAINED IN SECTIO N 274 OF THE ACT, IT IS CRYSTAL CLEAR THAT THE PENALTY UNDER SECTION 271 AAB OF THE ACT, WHICH FALLS IN CHAPTER XXI OF THE ACT SHALL NOT BE IMPOSED BY THE ASSESSIN G OFFICER UNTIL AND UNLESS PRIOR APPROVAL IS TAKEN FROM THE CONCERNED JOINT COMMISSI ONER OF INCOME TAX (JCIT).THE USE OF WORD 'SHALL' MAKE IT MANDATORY TO TAKE THE P RIOR APPROVAL OF THE JCIT / ADDITIONAL CIT BEFORE PASSING THE ORDER IMPOSING TH E PENALTY UNDER SECTION 271AAB OF THE ACT. IN THE PRESENT CASE IT IS CRYSTAL CLEAR FR OM THE PENALTY ORDER PASSED BY THE ASSESSING OFFICER THAT THE ORDER WAS PASSED ON 29/0 9/2016 WHILE THE APPROVAL FROM THE ADDITIONAL CIT, RANGE LUDHIANA WAS ACCORDED VIDE LE TTER NO. 1036 DT. 30/09/2016, WHICH CLEARLY ESTABLISHED THAT THE PENALTY ORDER WA S PASSED BY THE ASSESSING OFFICER ON 29/09/2016 BEFORE TAKING THE APPROVAL FROM THE CONC ERNED ADDITIONAL CIT / J.C.L.T. THEREFORE THE PENALTY ORDER PASSED BY THE ASSESSING OFFICER FOR LEVYING THE PENALTY UNDER SECTION 271 AAB OF THE ACT WAS VOID ABINITIO. IN THAT VIEW OF THE MATTER THE IMPUGNED PENALTY LEVIED U/S 271 AAB OF THE ACT BY T HE ASSESSING OFFICER AND SUSTAINED BY THE LD. CIT(A) IS DELETED. 12. FOR THE A.Y. 2014-15 THE FACTS ARE IDENTICAL AS WERE INVOLVED IN THE A.Y. 2013-14 THE ONLY DIFFERENCE IS IN THE AMOUNT OF PENALTY U/S 271 AAB OF THE ACT LEVIED BY THE ASSESSING OFFICER AND SUSTAINED BY THE LD. CIT(A), THEREFORE, OUR FINDINGS GIVEN IN THE FORMER PART OF THIS ORDER SHALL APPLY MUTATIS MUTAN DIS. ACCORDINGLY THE PENALTY LEVIED BY THE ASSESSING OFFICER UNDER SECTION 271 AAB OF T HE ACT AND SUSTAINED BY THE LD. CIT(A) FOR THE A.Y. 2014-15 IS ALSO DELETED. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ACCORDINGLY, IN THE ABSENCE O F ANY CHANGE IN FACTS AND ITA 261 TO 264/CHD/2018 A.Y. 2013-14, 2014-15 PAGE 4 OF 4 CIRCUMSTANCES AND THE POSITION OF LAW CANVASSED BEF ORE US, WE RESPECTFULLY FOLLOWING THE ORDER OF THE CO-ORDINATE BENCH HOLD T HAT THE PENALTY ORDER PASSED BY THE AO IN THE PECULIAR FACTS AND CIRCUMST ANCES OF THE PRESENT CASE DESERVES TO BE QUASHED. THE IMPUGNED ORDER IS SET ASIDE AND THE GROUNDS RAISED BY THE RESPECTIVE ASSESSEES, ACCORDI NGLY, ARE ALLOWED. ORDERED ACCORDINGLY. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 8. IN THE RESULT, APPEALS OF THE ASSESSEES ARE ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 23.05. 2019. SD/- SD/- ( % & ' ( ) ) ( ! ) (ANNAPURNA GUPTA) (DIVA SINGH) *+ #/ ACCOUNTANT MEMBER ' #/ JUDICIAL MEMBER & % '+ ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT - 2. / THE RESPONDENT - 3. # / / CIT 4. # / ( )/ THE CIT(A) 5. -01 2 , % 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7$ / GUARD FILE '+ # / BY ORDER, 8 ' / ASSISTANT REGISTRAR