M/s. Shri Saraswati Hospital, Kolhapur V. Income-tax Officer, Ward - 1(4), Kolhapur

ITA 2633/PUN/2017

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 5484 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 5 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-05-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 29-04-2021
• Assessment Year: 1998-1999
• Appeal Filed On: 14-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MAHADEVAN A M KRISHNAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE (THROUGH VIRTUAL COURT) BEFORE SHRI R.S.SYAL, VICE PRESIDENT AND SHRI S.S. VISWANETHRA RAVI , J UDICIAL M EMBER . / I TA NO. 2633 /PUN/20 17 / ASSESSMENT YEAR : 1998 - 99 M/S. SHRI SARASWATI HOSPITAL, SUSHANT S. PHADNIS 613 E WARD, PHADNIS CHAMBERS, SHAHAPURI, 1 ST LANE, KOLHAPUR. PAN : ABFFS2050S /AAKFS2237B ....... / APPELLANT / V/S. THE INCOME TAX OFFICER, WARD - 1(4), KOLHAPUR. / RESPONDENT A SSESSEE BY : NONE REVENUE BY : SHRI MAHADEVAN A M KRISHNAN / DATE OF HEARING : 29.04 .2021 / DATE OF PRONOUNCEMENT : 05 . 0 5 .2021 / ORDER PER S.S. VISWANETHRA RAVI , JM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 28.09.2017 PASSED BY THE LD. CIT(APPEAL) - 1, KOLHAPUR FOR THE ASSESSMENT YEAR 1998 - 99. 2. WE FIND NO REPRESENTATION ON BEHALF OF THE ASSESSEE NOR ANY APPLICATION SEEKING ADJOURNMENT. THE ASSESSEE CALLED ABSENT AND SAID EX - PARTE AND 2 ITA NO. 2633 /PUN/20 17 A.Y. 1998 - 99 THEREFORE, WE PROCEED TO HEAR THE LD. DR AND PASS THE ORDER USING MATERIAL AVAILABLE ON RECORD. 3. THE ONLY ISSUE IS TO BE DECIDED IS AS TO WHETHER THE LD. CIT(A) IS JUSTIFIED IN CONFIRMING THE PENALTY IMPOSED BY THE ASSESSING OFFICER U/S.271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAF TER REFERRED TO AS THE ACT) EX - P ARTE OF THE ASSESSEE IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. HEARD THE LD. DR AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT THE ASSESSING OFFICER DETERMINED THE TOTAL INCOME OF THE ASSESSEE AT RS.33,74,320/ - UNDER THE HEAD SHORT TERM CAPITAL GAIN IN THE ORIGINAL ASSESSMENT PROCEEDINGS VIDE ORDER DATED 31.03.2001. THE ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS FOR NOT SHOWING SHORT TERM CAPITAL GAIN ON SALE OF ASSETS. THE ASSESSING OFFICER REQUESTED THE ASSESSEE TO FILE EXPLANATION AS TO WHY PENALTY U/S.271(1)(C) OF THE ACT SHOULD NOT BE LEVIED. IN PENALTY PROCEEDINGS IN RESPONSE TO THE NOTICE U/S.271(C) OF THE ACT, THE ASSESSEE SOUGHT THE PROCEEDINGS IN THE PENALTY PROCEEDINGS TO KEEP IN ABEYANCE UNTIL THE DECISION OF APPEAL BY THE INCOME TAX APPELLATE TRIBUNAL AGAINST THE ORDER OF THE LD. CIT(A) IN QUANTUM PROCEEDINGS. THE ASSESSING OFFICER HAS NOT ACCEPTED THE SUBMISSIONS OF THE ASSESSEE AND PROCEEDED TO LEVY PENALTY U/S.271(1)(C) OF THE ACT. THE ASSESSEE PREFERRED APPEAL BEFORE T HE LD. CIT(A) WHEREIN, WE NOTE THAT VIDE PARA NO.5 OF PENALTY ORDER CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF SHORT TERM CAPITAL GAIN. 5. WE NOTE THAT THE LD. CIT(APPEALS) IN FIRST APPELLATE PROCEEDINGS CONFIRMED THE PENALTY IMP OSED BY THE ASSESSING OFFICER FOR NON - PROSECUTION. IT CLEARLY SHOWS THAT THE ASSESSEE HAS NOT BEEN GIVEN ANY OPPORTUNITY BEFORE THE LD. CIT(A) TO PROSECUTE ITS GROUNDS ON MERITS WHEREIN WHICH WERE DISMISSED EX - PARTE THE ASSESSEE. THEREFORE, IN OUR OPINION, THE ASSESSEE 3 ITA NO. 2633 /PUN/20 17 A.Y. 1998 - 99 SHOULD BE GIVEN ONE FINAL OPPORTUNITY BEFORE THE LD. CIT(APPEAL) TO PROSECUTE ITS GROUNDS AND THEREFORE, WE REMAND THE MATTER BACK TO THE FILE OF THE LD. CIT(A) FOR HIS FRESH ADJUDICATION. NEEDLESS TO SAY, THE LD. CIT(A) SHALL GRANT REASONABL E OPPORTUNITY OF HEARING TO THE ASSESSEE IN ACCORDANCE WITH LAW. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRO NOUNCED ON 05 TH DAY OF MAY , 2021. S D/ - S D/ - R.S.SYAL S.S. VISWANETHRA RAVI VICE PRESIDENT JUDICIAL MEMBER / PUNE; / DATED : 05 TH MAY , 2021. SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEAL) - 1, KOLHAPUR. 4. THE PR. CIT - 1, KOLHAPUR. 5. , , , / DR, ITAT, A BENCH, PUNE. 6 . / GUARD FILE. / BY ORDER, // T RUE C O PY // / PRIVATE SECRETARY , / ITAT, PUNE . 4 ITA NO. 2633 /PUN/20 17 A.Y. 1998 - 99 DATE 1 DRAFT DICTATED ON 29.04 .2021 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 05 .0 5 .2021 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER