DCIT, Ernakulam V. A.P.Vinu, Ernakulam

ITA 313/COCH/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 64724 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 3 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-08-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 06-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VENI RAJ
• Assessee Lawyers: R KRISHNA IYER
• Section: 260A

Judgement Text

1 ITA NO. 313/COCH/2011 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKARA N(AM) I.T.A NO. 313/COCH/2011 (ASSESSMENT YEAR 2004-05) THE DY.CIT, CIR.2(2) VS SHRI A.P. VINU ERNAKULAM ALUKKAS JEWELLERY M.G. ROAD, ERNAKULAM PAN : ABNPV7398A (APPELLANT) (RESPONDENT) APPELLANT BY : MS VENI RAJ RESPONDENT BY : SHRI R KRISHNA IYER DATE OF HEARING : 06-08-2012 DATE OF PRONOUNCEMENT : 10-08-2012 O R D E R PER N.R.S. GANESAN (JM) THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME-TAX(A)-II, KOCHI DATED 12-01-2011 AND PERTAI NS TO ASSESSMENT YEAR 2004-05. 2. MS. VENI RAJ, THE LD.DR SUBMITTED THAT THE COMMI SSIONER OF INCOME-TAX(A) DELETED THE PENALTY ON THE GROUND THAT THE QUANTUM ADDITION MADE BY THE ASSESSING OFFICER WAS DELETED BY THIS TRIBUNAL. TH E LD.DR POINTED OUT THAT THE REVENUE HAS ALREADY FILED AN APPEAL BEFORE THE HIGH COURT AGAINST THE ORDER OF THE INCOME-TAX APPELLATE TRIBUNAL WHICH IS STILL PE NDING. ACCORDING TO THE LD.DR, 2 ITA NO. 313/COCH/2011 THE ASSESSING OFFICER HAS DETECTED THE CONCEALMENT OF INCOME DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THEREFORE, HE HAS RIGHTL Y LEVIED THE PENALTY. SINCE THE APPEAL IS ADMITTEDLY PENDING BEFORE THE HIGH COURT AGAINST THE ORDER OF INCOME- TAX APPELLATE TRIBUNAL, ACCORDING TO THE LD.DR, THE COMMISSIONER OF INCOME- TAX(A) OUGHT NOT HAVE DELETED THE PENALTY. 3. WE HEARD SHRI KRISHNA IYER, THE LD.REPRESENTATIVE FOR THE ASSESSEE ALSO. ACCORDING TO THE LD.REPRESENTATIVE, THE ASSESSING O FFICER HAS MADE ADDITION OF RS. 1,61,84,724. ON APPEAL BY THE ASSESSEE THE COMMISS IONER OF INCOME-TAX(A) DELETED THE SAME. THE REVENUE CHALLENGED THE ORDER OF COMMISSIONER OF INCOME-TAX(A) BEFORE THIS TRIBUNAL. THIS TRIBUNAL C ONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER BY REVERSING THE ORDER OF THE COMMISSIONER OF INCOME- TAX(A). THE ASSESSEE FILED AN APPEAL BEFORE THE HI GH COURT U/S 260A OF THE ACT. THE HIGH COURT ALSO DISMISSED THE APPEAL. HOWEVER, THE ASSESSEE FILED A REVIEW PETITION IN R.P. NO.23 OF 2010. THE HIGH COURT GAV E LIBERTY TO THE TRIBUNAL TO RECTIFY THE ORDER IF THERE WAS ANY MISTAKE. THE HIG H COURT SPECIFICALLY OBSERVED THAT THE TRIBUNAL NEED NOT FOLLOW THE OBSERVATION I N THE JUDGMENT CONTAINED IN THE ORIGINAL APPEAL. ACCORDINGLY THE TRIBUNAL ENTE RTAINED THE APPLICATION FILED BY THE ASSESSEE FOR RECTIFICATION AND DELETED THE ADDI TION OF RS. 1,61,84,724. AGAINST THAT ORDER THE REVENUE HAS FILED AN APPEAL AND THAT IS NOW PENDING. THE FACT REMAINS IS THAT THE ADDITION MADE BY THE ASSESSING OFFICER IS DELETED BY THE COMMISSIONER OF INCOME-TAX(A) WHICH WAS ALSO CONFIRM ED BY THE TRIBUNAL. THEREFORE, THE COMMISSIONER OF INCOME-TAX(A) HAS RIG HTLY DELETED THE PENALTY. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE RECORD. THE ADDITION MADE BY THE ASSESSING OFFICER TO THE EXTEN T OF RS. 1,61,84,724 WAS DELETED BY THE COMMISSIONER OF INCOME-TAX(A). ON A PPEAL THOUGH AT THE INITIAL STAGE THIS TRIBUNAL CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER BY 3 ITA NO. 313/COCH/2011 REVERSING THE ORDER OF THE COMMISSIONER OF INCOME-TA X(A), ON THE BASIS OF THE ORDER PASSED BY THE HIGH COURT IN REVIEW PETITION I N R.P. NO.23 OF 2010, THIS TRIBUNAL DELETED THE ADDITION MADE BY THE ASSESSING OFFICER CONFIRMING THE ORDER OF THE C.I.T.(A). THE FACT NOW REMAINS IS THAT THE ADDITION MADE BY THE ASSESSING OFFICER TO THE EXTENT OF 1,61,84,724 IS DELETED BY THE COMMISSIONER OF INCOME- TAX(A) WHICH WAS CONFIRMED BY THIS TRIBUNAL. THE R EVENUE CHALLENGED THE ORDER OF THE I.T.A.T. BEFORE THE HIGH COURT BY WAY OF AN APPEAL U/S 260A OF THE ACT WHICH IS STILL PENDING BEFORE THE HIGH COURT. IN T HESE CIRCUMSTANCE LEVY OF PENALTY AT THIS STAGE MAY NOT BE WARRANTED. WHEN T HE QUANTUM ADDITION MADE BY THE ASSESSING OFFICER IS DELETED BY THE COMMISSI ONER OF INCOME-TAX(A) WHICH WAS CONFIRMED BY THIS TRIBUNAL, WE ARE OF THE CONSI DERED OPINION THAT LEVY OF PENALTY U/S 271(1)(C) IS NOT JUSTIFIED. IN VIEW OF THE ABOVE FACTUAL SITUATION WE DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF LOWER AUTHORITY. ACCORDINGLY THE SAME IS CONFIRMED. 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 10 TH AUGUST, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 10 TH AUGUST, 2012 PK/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH 4 ITA NO. 313/COCH/2011 1. DATE OF DICTATION : 06/08 2. DATE OF PLACING THE DRAFT ORDER BEFORE THE MEMBER : 07/08 3. DATE ON WHICH THE APPROVED DRAFT COMES TO SR.PS : 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER: 5. DATE OF RETURN OF THE ORDER TO PS AFTER APPROVAL : 6. DATE OF PRONOUNCEMENT : 7. DATE ON WHICH THE FILE ALONG WITH THE ORDER SENT TO BC : 8. NO. OF PAGES OF DICTATION PADS ATTACHED TO THE FILE : 06 9. NO. OF PAGES OF DRAFT COPY OF THE ORDER ATTACHED TO THE FILE : 10.