Ram Prakash Agarwal, Haldwani V. ITO, Haldwani

ITA 2960/DEL/2008

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 8524 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2009
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Next Hearing Date: 01-07-2009
• Assessment Year: misc
• Appeal Filed On: 19-09-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: H K LAL
• Section: 271(1)(c); 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : F : NEW DELHI BEFORE SHRI C.L. SETHI AND SHRI B.R. KAUSHIK ITA NO.2960/D/08 ASSESSMENT YEAR : 1981-82 SRI RAM PRAKASH AGARWAL VS. INCOME-TAX OFFICER, AGARWAL HARDWARE STORE, HALDWANI HALDWANI ( APPELLANT ) ( RESPONDENT ) APPELLANT BY : NONE RESPONDENT BY : SHRI H.K. LAL, DR O R D E R PER C.L. SETHI, JM: THE ASSESSEE IS IN APPEAL AGAINST THE ORDER DATED 0 9.07.2008 PASSED BY THE LEARNED CIT(A) IN THE MATTER OF AN ORDER PASSED U/S 154 OF THE INCOME- TAX ACT, 1961 BY THE ASSESSING OFFICER FOR THE ASSE SSMENT YEAR 1981-82. 2. IN THIS CASE THE ORIGINAL ASSESSMENT WAS COMPLET ED DETERMINING THE TOTAL INCOME AT RS.41,280/- AS AGAINST RETURNED INC OME OF RS.28,780/-. IN OTHER WORDS, THE ASSESSING OFFICER MADE THE ADDITIO N OF RS.12,000/- IN THE ASSESSMENT IN RESPECT OF WHICH HE INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT. ULTIMATELY, THE ASSESSING OFFICER LEVI ED PENALTY TO THE EXTENT OF 100% OF THE TAX SOUGHT TO BE EVADED ON THE AFORESAI D ADDITION OF RS.12,000/- . HOWEVER, SUBSEQUENTLY OUT OF THE TOTAL ADDITION OF RS.12,000/-, THE ITA NO.2960/D/08 2 ADDITION OF RS.10,000/- WAS DELETED BY THE TRIBUNAL . THE ASSESSEE, THEREFORE, REQUESTED THE ASSESSING OFFICER TO RECTI FY THE PENALTY ORDER ACCORDINGLY. THE ASSESSING OFFICER REFUSED TO RECT IFY BY SAYING THAT THE RECTIFICATION IS NOT COVERED BY BOARD CIRCULAR NO. F NO.245/25//71-A/PAC DATED 19.06.1972. THE CIT(A) CONFIRMED THE ASSESSI NG OFFICERS ORDER. 3. WE HAVE HEARD THE LEARNED DR AND HAVE GONE THROU GH THE ORDERS OF THE AUTHORITIES BELOW. 3.1 IT IS NOT THE CASE OF CANCELING OR SETTING ASID E THE PENALTY ORDER. IT IS THE CASE OF RECTIFYING THE PENALTY ORDER BY TAKING THE CORRECT FIGURE OF THE INCOME IN RESPECT OF WHICH TAX WAS SOUGHT TO BE EVA DED BY THE ASSESSEE. SINCE THE AMOUNT OF RS.10,000/- HAS BEEN DELETED BY THE TRIBUNAL AND NO TAX HAS BEEN LEVIED IN RESPECT OF SAID AMOUNT ON GIVING EFFECT TO TRIBUNALS ORDER, THE SAID AMOUNT CANNOT BE A SUBJECT MATTER O F PENALTY LEVIABLE U/S 271(1)(C) OF THE ACT. WHEN THE ASSESSING OFFICER R EVISED THE ASSESSMENT ORDER FOR GIVING APPEAL EFFECT TO THE TRIBUNALS OR DER, THE PENALTY ORDER SHOULD HAVE BEEN REVISED CONSEQUENTLY INASMUCH AS T HE TAX SOUGHT TO BE EVADED TAKEN BY THE ASSESSING OFFICER IN THE PENALT Y ORDER HAS BEEN REDUCED. THIS IS THE CASE WHERE CONSEQUENTIAL APPEAL EFFECT SHOULD BE GIVEN TO PENALTY ORDER ALSO BY TAKING THE CORRECT AMOUNT OF ASSESSED INCOME AND THE TAX PAYABLE THEREUPON. WE, THEREFORE, DIRECT THE ASSES SING OFFICER TO RECTIFY THE ITA NO.2960/D/08 3 PENALTY ORDER BY TAKING CORRECT AMOUNT OF ASSESSED INCOME AND THE TAX SOUGHT TO BE EVADED AND THEN RE-CALCULATE THE AMOUN T OF PENALTY ACCORDINGLY. 4. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS P ARTLY ALLOWED IN THE MANNER AS INDICATED ABOVE. 5. THIS ORDER WAS PRONOUNCED IMMEDIATELY AFTER THE HEARING WAS OVER ON 01-07-2009. SD/- SD/- ( B.R. KAUSHIK ) ( C.L. SETHI ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 01-07-2009 NS : COPY FORWARDED TO : - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY DY. REGISTRAR, ITA NO.2960/D/08 4