Nayanaben G. Sheth, Ahmedabad V. The Income Tax Officer, Ward 11(2), Ahmedabad

ITA 2886/AHD/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0542 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 28-09-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 09-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL KUMAR
• Assessee Lawyers: G A MEHTA
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER ./ ITA NO. 2886/AHD/2013 / ASSESSMENT YEAR : 2007-08 NAYANABEN G. SHETH, 619, VIRAG SOCIETY, P T COLLEGE ROAD, PALDI, AHMEDABAD PAN : CCRPS 8870 D VS INCOME TAX OFFICER, WARD 11(2), AHMEDABAD / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI G.A. MEHTA, CA REVENUE BY : SHRI RAHUL KUMAR, SR DR / DATE OF HEARING : 28/09/2016 / DATE OF PRONOUNCEMENT: 28/09/2016 / O R D E R THIS IS ASSESSEES APPEAL CHALLENGING IMPOSITION OF PENALTY OF RS.3,01,900/- U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2. LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT AT TH E TIME OF PENALTY PROCEEDINGS BEFORE THE LD. AO IT WAS REQUESTED THAT THE PENALTY PROCEEDINGS MAY BE KEPT IN ABEYANCE AS THE QUANTUM APPEAL WAS P ENDING BEFORE THE ITAT, AHMEDABAD BENCH. LD. AO DID NOT MAKE ANY MEN TION OF SUCH REQUEST AND HELD THAT THE ASSESSEE HAS NOTHING TO S AY IN THIS MATTER. IT IS CONTENDED THAT WHEN THE ASSESSEE WAS ALREADY IN APP EAL BEFORE ITAT, IT IS NOT CORRECT TO ASSUME THAT THE ASSESSEE HAS NOTHING TO SAY ON MERITS. FURTHER, THE ASSESSEE FILED COPIES OF P&L ACCOUNT, BALANCE-S HEET, CAPITAL ACCOUNT, CASH BOOK ETC.. THE ASSESSEE IS A LADY AND THE BIL LS WERE NOT READILY AVAILABLE WITH HER. ALL THE PAYMENTS FOR PURCHASE OF PHOTOGRAPHIC MATERIAL WERE MADE THROUGH ACCOUNT PAYEE CHEQUE FROM ASSESSE ES BANK ACCOUNT. THE LD. CIT(A), THOUGH REFERS TO ADDITIONAL EVIDENC E, BUT MERELY BECAUSE IT WAS REJECTED UNDER RULE 46A, IN QUANTUM PROCEEDINGS THE MATERIAL HAS NOT BEEN CONSIDERED WHILE DECIDING THE PENALTY MATTER. SMC-ITA NO. 2886/AHD/2013 - NAYANABEN G. SHETH VS. ITO AY : 2007-08 2 3. IT IS CONTENDED THAT PENALTY PROCEEDINGS ARE SEP ARATE AND DISTINCT; AND A NEW PLEA OR NEW EVIDENCE CAN BE FILED DURING THE COURSE OF PENALTY PROCEEDINGS. IN THESE CIRCUMSTANCES, IT IS NOT JUS TIFIED ON THE PART OF THE LD. CIT(A) TO CONFIRM THE PENALTY WITHOUT CONSIDERING T HE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE. 4. LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HA ND, SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 5. I HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. IN MY CONSIDERED VIEW, WHEN THE ASSESSEE MADE A REQUEST T O KEEP THE PENALTY PROCEEDING IN ABEYANCE PENDING QUANTUM PROCEEDINGS, IN THE INTEREST OF JUSTICE, ASSESSEES REQUEST SHOULD HAVE BEEN PROPER LY CONSIDERED INSTEAD OF ASSUMING THAT THE ASSESSEE HAS NOTHING TO SAY AND I MPOSING THE PENALTY ON SUCH ASSUMPTION. THERE IS MERIT IN THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE PENALTY PROCEEDINGS ARE SEPARATE AND DISTINCT AND IF ANY NEW EVIDENCE WAS FILED, THE SAME SHOULD BE APPRECIA TED WHILE DECIDING THE ISSUE OF PENALTY. THEREFORE, IN THE ENTIRETY OF FA CTS AND CIRCUMSTANCES, INTEREST OF JUSTICE WILL BE SERVED IF THE PENALTY P ROCEEDINGS ARE SET ASIDE AND RESTORED BACK TO THE FILE OF ASSESSING OFFICER TO D ECIDE THE SAME AFRESH AFTER PROVIDING THE ASSESSEE ADEQUATE OPPORTUNITY OF BEIN G HEARD. I ORDER ACCORDINGLY AND THUS, THE ASSESSEES APPEAL IS ALLO WED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 28 TH SEPTEMBER, 2016 AT AHMEDABAD. SD/- R.P. TOLANI (JUDICIAL MEMBER) AHMEDABAD; DATED 28/09/2016 *BIJU T. SMC-ITA NO. 2886/AHD/2013 - NAYANABEN G. SHETH VS. ITO AY : 2007-08 3 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD