Shri Dinesh Das, Surat V. The Income Tax Officer,Ward-6(1), Surat

ITA 29/AHD/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9267 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 09-03-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 05-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHHRI SHIVA SEWAK
• Assessee Lawyers: MEHUL R SHAH
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL CAMP AT SURAT BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./ ITA NO.25 TO 29/AHD/2015 / ASSTT. YEAR: 2003-2004 TO 2007-2008 SHRI DINESH DAS G-201, PRAGATI NAGAR PIPLOD, SURAT 395 007. PAN : AFCPD 9959 A VS. ITO, WARD-6(1) SURAT. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI MEHUL R. SHAH, AR REVENUE BY : SHHRI SHIVA SEWAK, DR ! / DATE OF HEARING : 09/03/2017 '#$ ! / DATE OF PRONOUNCEMENT: 10/03/2017 %& / O R D E R PER BENCH: THESE FIVE APPEALS ARE DIRECTED AT THE INSTANCE OF THE ASSESSEE AGAINST SEPARATE ORDERS OF LD.CIT(A)-I, SURA T DATED 27.10.2014 AND 31.10.2014 FOR THE ASSTT.YEARS 2003-04 TO 2007-08. SINCE COMMON ISSUES ARE INVOLVED, ALL THESE APPEALS ARE BEING DISPOSED OF BY THIS COMMON ORDER. 2. SOLE COMMON GRIEVANCE IN ALL THESE APPEALS OF THE ASSESSEE IS THAT THE LD.CIT(A) HAS ERRED IN CONFIRMING THE ITA NO.24/AHD/2015 (5 APPEALS) 2 PENALTY IMPOSED BY THE AO UNDER SECTION 271(1)(C) OF TH E INCOME TAX ACT, 1961. THE AMOUNTS OF PENALTY IMPOSED UPON THE ASSESSEE FOR THE RESPECTIVE YEARS ARE AS UNDER : ASSTT.YEAR AMOUNT (RS.) 2003-04 60,628/- 2004-05 1,03,300/- 2005-06 2,43,062/- 2006-07 4,71,542/- 2007-08 6,72,988/- 3. THE LD.COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET SUBMITTED THAT ADDITIONS WERE MADE BY THE AO IN AN EX PA RTE ASSESSMENT UNDER SECTION 144 R.W.S. 147 WITHOUT GIVING SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSEE. THIS O RDER OF THE AO WAS CONFIRMED BY THE LD.CIT(A). AGGRIEVED BY THIS ORDER, THE ASSESSEE WENT IN APPEAL BEFORE THE TRIBUNAL, AND THE TRIBUNAL IN ITA NO.844 AND 679/AHD/2012 AND OTHERS, CONSIDERED THE FACTS AND CIRCUMSTANCES, AND SET ASIDE THE ORDERS OF THE REVENUE AUTHORITIES WITH DIRECTION TO FRAME DE NOVO ASSESSMENT FOR ALL THE ASSESSMENT YEARS UNDER CONSIDERATION AFTER GIVING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD.COUNSEL FOR THE ASSESS EE SUBMITTED THAT SINCE ORDERS HAVE BEEN SET ASIDE AND ISSUE IN ALL THE YEARS HAS REMANDED BACK FOR RE-ADJUDICATION BY T HE LOWER AUTHORITIES, PENALTY UNDER SECTION 271(1)(C) OF T HE ACT ITA NO.24/AHD/2015 (5 APPEALS) 3 WILL NOT SURVIVE, AND THE SAME REQUIRES TO BE DELETED. THE LD.DR, ON THE OTHER HAND, UNABLE TO CONTROVERT THIS FACTUAL SUBMISSION OF THE LD.COUNSEL FOR THE ASSESSEE. 4. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GONE THROUGH THE RECORD CAREFULLY. WE FIND THAT S UB-CLAUSE (III) OF SECTION 271(1)(C) PROVIDES MECHANISM FOR QUANTIFICA TION OF PENALTY. IT CONTEMPLATES THAT THE ASSESSEE WOUL D BE DIRECTED TO PAY A SUM IN ADDITION TO TAXES, IF ANY, PAYABLE BY HIM, WHICH SHALL NOT BE LESS THAN , BUT WHICH SH ALL NOT EXCEED THREE TIMES THE AMOUNT OF TAX SOUGHT TO BE EVADED BY REASON OF CONCEALMENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME. IN OTHER WORDS, THE QUANTIFICATION OF THE PENALTY IS DEPENDE D UPON THE ADDITION MADE TO THE INCOME OF THE ASSESSEE. I N THE PRESENT, THE ASSESSEE HAS FILED APPEALS BEFORE THE TRIBUNAL AGAINST THESE QUANTUM ADDITIONS IN ALL THE YEARS UNDER CONSIDERATION. THE TRIBUNAL IN ITA NO.844, 6 79, 680, 681 & 845/AHD/2012 VIDE ORDER DATED 5.6.2015 H AS SET ASIDE ORDERS OF BOTH THE REVENUE AUTHORITIES AN D REMANDED THE ISSUE BACK TO THE FILE OF THE AO FOR RECONSIDERATION. THE RELEVANT PART OF THE ORDER R EADS AS UNDER: ITA NO.24/AHD/2015 (5 APPEALS) 4 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND MATERIAL AVAILABLE ON RECORD. THERE IS NO DISPUTE WITH REGA RD TO THE FACT THAT THE ASSESSMENT HAS BEEN FRAMED U/S.1244 R.W.S. 147 OF THE ACT. WE FIND THAT THE ASSESSING OFFICER IN HIS ORDER, HAS RECORDED THE FINDINGS AS UNDER: 2. THE ASSESSEE WAS REQUIRED TO FILE HIS RETURN OF INCOME WITHIN 30 DAYS FROM THE DATE OF SERVICE OF THE SAID NOTICE. HOWEVER, NO RETURN OF INCOME WAS FILED BY THE ASSESSEE. THEREAFTER, A NOTICE U/S.142(1) WAS ISSUED TO THE ASSESSEE ON 21.07.2010 WHEREIN THE ASSESSEE WAS REQUESTED TO FURNISH CERTAIN DETAILS AND EVIDENCES AND THE ASSESSEE WAS REQU9IRED TO FURNISH THE SAID DETAILS ON 28.07.2010 AT 3.30 PM. BUT THE ASSESSEE NEITHER ATTENDED THE OFFICE NOR FILED THE DETAILS CALLED FOR. THEREFORE, A SHOW CAUSE NOTICE U/S.142(1) OF THE ACT WAS ISSUED ON01.10.2010 AND THE ASSESSEE WAS REQUESTED TO SHOW CAUSE AS TO WHY THE ASSESSMENT SHOULD NOT BE PASSED U/2 1244 OF THE ACT I.E. BEST JUDGMENT ASSESSMENT, IN VIEW OF THE NON-COMPLIANCE ON THE PART OF THE ASSESSEE. THE ADDITION PROPOSED TO BE MADE WAS ALSO BROUGHT TO THE NOTICE OF THE ASSESSEE VIDE THE AFORESAID SHOW CAUSE NOTICE DATED 01.10.2010. FOR THIS PURPOSE, THE CASE WAS FIXED FOR HEARING ON 11.10.2010 AT 11.30AM. AGAIN THERE WAS NO RESPONSE ON THE PART OF THE ASSESSEE. HENCE, A LAST AND FINAL OPPORTUNITY WAS AFFORDED TO THE ASSESSEE VIDE SHOW CAUSE NOTICE DATED 30.11.2010 AND THE ASSESSEE WAS REQUIRED TO ATTEND THE NOTICE ON ITA NO.24/AHD/2015 (5 APPEALS) 5 06.12.2010 AT 4.30PM. HOWEVER, THE ASSESSEE NEITHER ATTENDED THE OFFICE NOR FURNISHED ANY OF THE DETAILS AS CALLED FOR. THEREFORE, THE UNDERSIGNED IS LEFT WITH NO OTHER OPTION BUT TO FINALISE THE ASSESSMENT ON THE BASIS OF MATERIALS AVAILABLE ON RECORD. THE ASSESSMENT IS FINALIZED SUBJECT TO FOLLOWING REMARKS. 6. FROM THE ABOVE OBSERVATION OF THE ASSESSING OFFICER, IT IS EVIDENT THAT THE ASSESSING OFFICER D ID NOT GIVE SUFFICIENT TIME TO THE ASSESSEE FOR REPRESENTING ITS CASE. VIDE SHOW CAUSE NOTICE DATE D 01.10.2010, THE ASSESEEE WAS REQUIRED TO APPEAR ON 11.10.2010 AND VIDE ANOTHER NOTICE DATED 30.11.2010, THE ASSESSEE WAS REQUIRED TO ATTEND ON 06.12.2010. WE ARE, THEREFORE, OF THE CONSIDERED VIEW THAT THE ASSESSEE OUGHT TO HAVE BEEN GIVEN SUFFICIENT TIME BY THE AO TO REPRESENT HIS CASE. THEREFORE, UNDER THE FACTS OF THE PRESENT CASE, DEE M IT PROPER THAT THE ASSESSMENT FRAMED BY THE ASSESSING OFFICER BE SET ASIDE FOR ALL THE ASSESSME NT YEARS UNDER CONSIDERATION. WE ORDER ACCORDINGLY AND HEREBY DIRECT THE ASSESSING OFFICER TO FRAME TH E DE NOVO ASSESSMENT FOR ALL THE YEARS UNDER CONSIDERATION AFTER GIVING SUFFICIENT OPPORTUNITY O F BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED NOT TO SEEK UNNECESSARY ADJOURNMENT AND FURNISH THE REQUISITE DETAILS AS CALLED FOR BY THE ASSESSING OFFICER. 5. AS PER THE DIRECTIONS OF THE TRIBUNAL, DE NOVO ASSESSMENTS FOR ALL THE YEARS ARE PENDING BEFORE THE ASSESSING OFFICER. UNLESS QUANTUM IS DECIDED, NO PENALTY CAN ITA NO.24/AHD/2015 (5 APPEALS) 6 BE IMPOSED UPON THE ASSESSEE, ACCORDINGLY WE ALLOW AL L APPEALS OF THE ASSESSEE AND DELETE THE IMPUGNED PENALTI ES. 6. IN THE RESULT, ALL APPEALS OF THE ASSESSEE ARE ALL OWED. ORDER PRONOUNCED IN THE COURT ON 10 TH MARCH, 2017 AT SURAT CAMP. SD/- SD/- (AMARJIT SINGH) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER