Smt. Komal Ashok Shivnani, Baroda V. The Income tax Offcer,Ward-5(4), Baroda

ITA 2762/AHD/2009

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 9954 (ITAT-AHMEDABAD)
• Duration Of Justice: 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-09-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 08-09-2010
• Assessment Year: 1996-1997
• Appeal Filed On: 07-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K JHA SRDR
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH SMC AHMEDABAD BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER ITA NO.2762/AHD/2009 ASSESSMENT YEAR:1996-97 DATE OF HEARING:8.9.10 DRAFTED:8.9.10 SMT. KOMAL ASHOK SHIVNANI, 402/403, SHRI SHARNAM-II, PLOTNO.37, NR. HDFC BANK, ALKAPURI, BARODA PAN NO.AQVPS9116N V/S . INCOME TAX OFFICER, WARD-5(1), 5 TH FLOOR, AYAKAR BHAVAN, RACE COURSE, BARODA-7 (APPELLANT) .. (RESPONDENT) APPELLANT BY :- WRITTEN SUBMISSIONS RESPONDENT BY:- SHRI S.K. JHA, SR-DR O R D E R THIS APPEAL BY THE ASSESSEE IS ARISING OUT OF THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-V, BARODA IN A PPEAL NO.CAB/(A)- V/330/05-06 DATED 07-07-2009. THE ASSESSMENT WAS FR AMED BY ITO WARD-5(4), BARODA U/S.143(3) R.W.S. 147 OF THE INCO ME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORD ER DATED 23-02-2004 FOR THE ASSESSMENT YEAR 1996-07. THE PENALTY UNDER DISP UTE WAS LEVIED BY ASSESSING OFFICER U/S.271(1)(C) OF THE ACT VIDE HIS ORDER DATED 21-02- 2006. ITA NO.2762/AHD/2009 A.Y. 1996-07 SMT. KOMAL A SHIVANANI V. ITO WD-5(4), BRD . PAGE 2 2. AT THE OUTSET, IT IS NOTICED FROM THE PENALTY OR DER THAT THE ASSESSING OFFICER LEVIED THE PENALTY IN THE ABSENCE OF ASSESSEE AND THE RELEVANT PARAS OF THE PENALTY ORDER I.E. PARA-4-5 WHICH READ AS UNDER:- 4. A NOTICEU/S.274 R.W.S. 271(1)(C) OF THE ACT HA S BEEN ISSUED IN THE ASSESSEE ON23.02.2004. AS THE ASSESSEE HAD PREF ERRED APPEAL AGAINST THE ORDER PASSED U/S.143(3) R.W.. 14 7 OF THE ACT, PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE ACT WAS KEPT IN ABEYANCE. THE LD. CIT(A)-II,BARODA VIDE HIS ORDER D ATED 05.10.2004, UPHELD THE ORDER OF THE A.O AND DISMISS ED THE APPEAL OF THE ASSESSEE. IN VIEW OF THE ABOVE FACTS, A FRESH NOTICE U/S.27 4 R.W.S. 271(1)(C) OF THE ACT HAS BEEN ISSUED TO THE ASSESSEE ON 19.10.2004 AND AGAIN ON 06.04.2005. 5. IN RESPONSE TO THE SAME, THE ASSESSEE HAS FURNIS HED A WRITTEN SUBMISSION DATED 27.04.2005 ON 28/04/2005. VIDE THE SAID SUBMISSION THE ASSESSEE HAS MAINLY PLEADED THAT ON THE SAME GROUND, THE I.T.A.T., NEW DELHI HAS DELETED THE ADD ITION MADE IN THE CASE OF I.T.O., WARD-1, FARIDABAD VS. SMT. SUNI TA GUPTA. THE ASSESSEE FURTHER REQUESTED TO KEEP THE PENALTY PROC EEDINGS IN ABEYANCE TILL THE DECISION OF I.T.A.T AHMEDABAD, WH ERE APPEAL IN HER CASE IS NOW PENDING. AS THE ASSESSEE HAS NOT BR OUGHT FORWARD ANY NEW EVIDENCE TO JUSTIFY THAT SO-CALLED TRANSACT IONS IN THE SHARES OF NILAMBAR HOLDINGS LTD. ON WHICH CAPITAL G AIN WAS SHOWN IN GENUINE ONE. BEFORE LEVY OF PENALTY, THE ASSESSE E WAS GIVEN FURTHER OPPORTUNITY VIDE NOTICE U/S.274 R.W.S. 271( 1)(C) OF THE ACT DATED 05/01/2006, SERVED ON 11/01/2006 BY SPEED POS T. HOWEVER, TILL DATE THERE IS NO REPLY TO THE NOTICE DATED 05/ 01/2006. IT IS, THEREFORE, ASSUMED THAT THE ASSESSEE HAS NO FURTHER EXPLANATION TO OFFER IN THE MATTER. EVEN FROM THE ORDER OF CIT(A), IT IS NOTICED THAT N ONE APPEARED ON BEHALF OF THE ASSESSEE BUT FILED WRITTEN SUBMISSIONS BEFOR E THE CIT(A) FOR THE FIRST TIME. THE CIT(A) BASED ON WRITTEN SUBMISSIONS DECIDED PENALTY IN APPELLATE PROCEEDINGS. I AM OF THE VIEW THAT ONCE T HE ASSESSING OFFICER HAS NOT PROVIDED HEARING TO THE ASSESSEE AND NO EXP LANATION WAS CONSIDERED BY HIM, THE PENALTY LEVIED AND CONFIRMED BY CIT(A) CANNOT ITA NO.2762/AHD/2009 A.Y. 1996-07 SMT. KOMAL A SHIVANANI V. ITO WD-5(4), BRD . PAGE 3 STAND TO THE PRINCIPLE OF NATURAL JUSTICE. ACCORDIN GLY, I AM OF THE VIEW THAT AO MUST PROVIDE REASONABLE OPPORTUNITY OF BEING HEA RD TO ASSESSEE OR LET HIM FILED WRITTEN SUBMISSIONS BEFORE AO AND HIS EXPLANATION BE CONSIDERED AND THEN DECIDE THE PENALTY. ACCORDINGLY , THIS APPEAL IS SET ASIDE TO THE FILE OF ASSESSING OFFICER WITH A DIREC TION TO PROVIDE REASONABLE OPPORTUNITY OF BEING HEARD. AND THEN DEC IDE THE ISSUE OF PENALTY, WHETHER THE SAME IS TO BE LEVIED OR TO BE DROPPED. 3. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 08 /09/2010 SD/- (MAHAVIR SINGH) (JUDICIAL MEMBER) AHMEDABAD, DATED : 08/09/2010 *DKP COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)-V, BARODA 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD