Sh. Sadhu Ram Rupal, Ludhiana V. ACIT, CC-II, Ludhiana

ITA 265/CHANDI/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4522 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 01-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, B, CHANDIGARH . . , , BEFORE SHRI N.K. SAINI, VICE PRESIDENT & SHRI SANJAY GARG, JUDICIAL MEMBER ./ ITA NO. 265/CHD/2018 ! / ASSESSMENT YEAR : 2014-15 SH. SADHU RAM RUPAL, H.N. 374, BABA BALAK NATH ROAD, CIVIL LINES, LUDHIANA VS. '# THE ACIT, CENTRAL CIRCLE-II, LUDHIANA $ % ./ PAN NO: AAZPR4905L $&/ APPELLANT ()$& / RESPONDENT & ./ ITA NO. 266/CHD/2018 ! / ASSESSMENT YEAR : 2014-15 M/S MARVEL DYERS & PROCESSORS PVT LTD., VILLAGE MEHARBAN, RAHON ROAD, LUDHIANA VS. '# THE ACIT, CENTRAL CIRCLE-II, LUDHIANA $ % ./ PAN NO: AAACF2565J $&/ APPELLANT ()$& / RESPONDENT *+ , - / ASSESSEE BY : SH. ASHWANI KUMAR, CA , - / REVENUE BY : SH. MANJIT SINGH, CIT DR . / , +0% / DATE OF HEARING : 25.03.2019 12! , +0% / DATE OF PRONOUNCEMENT : 21.05.2019 / ORDER PER SANJAY GARG, JUDICIAL MEMBER : THE PRESENT APPEALS HAVE BEEN PREFERRED BY THE DIFF ERENT ASSESSEES AGAINST THE SEPARATE ORDERS DATED 7.12.2017 OF THE COMMISSIONER OF INCOME TAX (APPEALS)-5, LUDHIANA [HEREINAFTER REFER RED TO AS CIT(A)]. ITA NOS.265-C-2018 & 266-C-2018- SH. SADHU RAM RUPAL & M/S MARVEL DYERS & PROCESSORS , LUDHIANA 2 2. SINCE THE APPEALS HAVING COMMON ISSUES INVOLVED WERE HEARD TOGETHER, THEREFORE THESE ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 3. FIRST, WE SHALL DEAL WITH APPEAL IN ITA NO. 265/CHD/2018 FOR THE ASSESSMENT YEAR 2014-15, WHEREIN, THE ONLY GROU ND RAISED BY THE ASSESSEE READS AS UNDER:- THAT ORDER PASSED U/S 250(6) OF THE INCOME TAX ACT, 1961 BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-5, LUDHIANA UPHOLDING LEVY OF PENALTY U/S 271AAB AT RS. 7,00,000/- IS AGAINST LAW AND FACTS ON THE FILE IN AS MUCH NO SUCH PENALTY WAS EXIGIBLE IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. THE ASSESSEE IN THIS APPEAL HAS CONTESTED THE CO NFORMATION OF PENALTY LEVIED BY THE ASSESSING OFFICER @ 10% OF TH E UNDISCLOSED INCOME UNDER SECTION 271AAB (1) OF THE INCOME TAX A CT. 5. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE PENALTY U/S 271AAB OF THE ACT LEVIED BY TH E ASSESSING OFFICER WAS VOID ABINITIO BECAUSE HE HAS NOT TAKEN THE PRIOR APPROVAL UNDER SECTION 274(2) OF THE ACT, WHICH WAS ACCORDED VIDE LETTER NO. 1036 DT. 30/09/2016 WHILE THE PENALTY O RDER WAS PASSED BY THE ASSESSING OFFICER ON 29/09/2016 I.E; PRIOR T O TAKING THE APPROVAL FROM THE ADDITIONAL CIT, CENTRAL CIRCLE, R ANGE LUDHIANA. ITA NOS.265-C-2018 & 266-C-2018- SH. SADHU RAM RUPAL & M/S MARVEL DYERS & PROCESSORS , LUDHIANA 3 6. IN HIS RIVAL SUBMISSIONS THE LD. SR. DR STRONGLY SUPPORTED THE ORDER OF THE AUTHORITIES BELOW AND FURTHER SUBMITTE D THAT THERE MAY BE A TYPOGRAPHICAL MISTAKE IN THE ORDER PASSED UND ER SECTION 271AAB(1) OF THE ACT AND BY MISTAKE THE DATE WAS ME NTIONED AS 29/09/2016 WHILE THE DCR NUMBER WAS DT. 30/09/2016. 7. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. TO RE SOLVE THE PRESENT CONTROVERSY IT IS RELEVANT TO REFER THE PROVISIONS CONTAINED IN SECTION 274(2) OF THE ACT WHICH READ AS UNDER: SECTION 274(1) (2) NO ORDER IMPOSING A PENALTY UNDER THIS CHAPTER SHALL BE MADE- (A) BY THE INCOME-TAX OFFICER, WHERE THE PENALTY EXCEEDS TEN THOUSAND RUPEES; (B) BY THE ASSISTANT COMMISSIONER OR DEPUTY COMMISSIONER, WHERE THE PENALTY EXCEEDS TWENTY THOUSAND RUPEES, EXCEPT WITH THE PRIOR APPROVAL OF THE JOINT COMMISSIONER. 8. FROM THE ABOVE PROVISIONS CONTAINED IN SECTION 2 74 OF THE ACT, IT IS CRYSTAL CLEAR THAT THE PENALTY UNDER SE CTION 271AAB OF THE ACT, WHICH FALLS IN CHAPTER XXI OF THE ACT SHAL L NOT BE IMPOSED BY THE ASSESSING OFFICER UNTIL AND UNLESS P RIOR APPROVAL IS TAKEN FROM THE CONCERNED JOINT COMMISSIONER OF INCO ME TAX ITA NOS.265-C-2018 & 266-C-2018- SH. SADHU RAM RUPAL & M/S MARVEL DYERS & PROCESSORS , LUDHIANA 4 (JCIT). THE USE OF WORD SHALL MAKE IT MANDATORY T O TAKE THE PRIOR APPROVAL OF THE JCIT / ADDITIONAL CIT BEFORE PASSING THE ORDER IMPOSING THE PENALTY UNDER SECTION 271AAB OF THE ACT. IN THE PRESENT CASE IT IS CRYSTAL CLEAR FROM THE PENAL TY ORDER PASSED BY THE ASSESSING OFFICER THAT THE ORDER WAS PASSED ON 29/09/2016 WHILE THE APPROVAL FROM THE ADDITIONAL CIT, RANGE L UDHIANA WAS ACCORDED VIDE LETTER NO. 1036 DT. 30/09/2016, WHICH CLEARLY ESTABLISHED THAT THE PENALTY ORDER WAS PASSED BY TH E ASSESSING OFFICER ON 29/09/2016 BEFORE TAKING THE APPROVAL FR OM THE CONCERNED ADDITIONAL CIT / J.C.I.T. THE CONTENTION OF THE LD. DR THAT THE SAME MAY BE A TYPOGRAPHICAL MISTAKE IS NOT TENABLE BECAUSE THE RELEVANT COLUMN OF APPROVAL LETTER NO. AND DATE HAD BEEN LEFT BLANK IN THE PENALTY ORDER WHICH HAVE BEEN FILLED WITH PEN ON RECEIPT OF SAID APPROVAL LETTER AND THE DATE MENTIONED FALLS AFTER THE DATE OF PRONOUNCEMENT OF IMPUGNED P ENALTY ORDER. THEREFORE, THE PENALTY ORDER PASSED BY THE ASSESSIN G OFFICER FOR LEVYING THE PENALTY UNDER SECTION 271AAB OF THE ACT IS VOID ABINITIO. IN THAT VIEW OF THE MATTER THE IMPUGNED PENALTY LEV IED U/S 271AAB OF THE ACT BY THE ASSESSING OFFICER AND SUST AINED BY THE LD. CIT(A) IS DELETED. ITA NOS.265-C-2018 & 266-C-2018- SH. SADHU RAM RUPAL & M/S MARVEL DYERS & PROCESSORS , LUDHIANA 5 ITA NO. 266/CDH/2018 9. IN ITA NO. 266/CHD/2018 FOR THE A.Y. 2014-15, TH E FACTS ARE IDENTICAL AS WERE INVOLVED IN THE ITA NO. 265/CHD/2 018 IN THE CASE OF SAHDU RAM RUPAL, LUDHIANA. THE ONLY DIFFERENCE I S IN THE AMOUNT OF PENALTY U/S 271 AAB OF THE ACT LEVIED B Y THE ASSESSING OFFICER AND SUSTAINED BY THE LD. CIT(A), THEREFORE, OUR FINDINGS GIVEN IN THE FORMER PART OF THIS ORDER SHA LL APPLY MUTATIS MUTANDIS. ACCORDINGLY THE PENALTY LEVIED BY THE ASS ESSING OFFICER UNDER SECTION 271AAB OF THE ACT AND SUSTAINED BY TH E LD. CIT(A) IN THIS APPEAL IS ALSO DELETED. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEES A RE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 21.05.2019 SD/- SD/- ( . . / N.K. SAINI) ( ! ' / SANJAY GARG) #$% / VICE PRESIDENT & ' / JUDICIAL MEMBER DATED : 21.05.2019 .. 3 , (+45 65!+ / COPY OF THE ORDER FORWARDED TO : 1. $& / THE APPELLANT 2. ()$& / THE RESPONDENT 3. . 7+ / CIT 4. . 7+ ( )/ THE CIT(A) 5. 58 (+9 , 0 9 , :;<= / DR, ITAT, CHANDIGARH 6. < >/ / GUARD FILE ITA NOS.265-C-2018 & 266-C-2018- SH. SADHU RAM RUPAL & M/S MARVEL DYERS & PROCESSORS , LUDHIANA 6 3 . / BY ORDER, ? / ASSISTANT REGISTRAR