ITO, BUNDI V. LATE SHRI NAND LAL THROUGH L/H SHRI MAHAVEER PRASAD SHARMA, BUNDI

ITA 324/JPR/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5048 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 5 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 03-06-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 01-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 324/JP/2015 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 THE ITO BUNDI CUKE VS. LATE SHRI NAND LAL S/O SHRI BHAWANI SHANKAR THROUGH L/H SHRI MAHAVEER PRASAD SHARMA, VILLAGE: SUNWANSA, DISTT.BUNDI LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AEOPL 4406 R VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY:SHRI R.A. VERMA, ADDL.CIT - DR FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: NONE LQUOKBZ DH RKJH[K@ DATE OF HEARING : 23/09/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 26/09/2016 VKNS'K@ ORDER PER BHAGCHAND, AM THE REVENUE HAS FILED AN APPEAL AGAINST THE ORDER O F THE LD. CIT(A), KOTA DATED 20-01-2015 FOR THE ASSESSMENT YE AR 2008-09 RAISING THEREIN FOLLOWING GROUND OF APPEAL. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD. CIT(A),KOTA HAS ERRED IN DELETING THE PENALTY O F RS. ITA NO. 324/JP/2015 ITO, BUNDI VS. LATE SHRI NAND LAL S/O SHRI BHAWANI SHANKAR THROUGH L/H SH RI MAHAVEER PRASAD SHARMA , DISTT. BUNDI . 2 14,11,620/- IMPOSED UPON THE ASSESSEE U/S 271(1)(C) OF THE ACT MERELY ON THE GROUND THAT PENALTY PROCEEDING AB ATE ON THE DEATH OF THE ASSESSEE SINCE THERE IS NO SUCH PR OVISION IN THE I.T. ACT,1961. 2.1 NONE APPEARED ON BEHALF OF THE ASSESSEE IN SPIT E OF SENDING NOTICE OF THIS HEARING ON 23-09-2016. CONSEQUENTLY, THE BE NCH IS LEFT WITH NO ALTERNATIVE BUT TO DECIDE THE APPEAL ON MERITS, EX PARTE QUA THE ASSESSEE, AFTER HEARING LD. DR AND AFTER PERUSAL OF THE MATER IALS AVAILABLE ON RECORD. 2.2 AT THE TIME OF HEARING, IT IS NOTICED THAT IN F IRST APPEAL THE LD. CIT(A) HAD DELETED THE PENALTY BY OBSERVING AS UNDE R- 4.12. THE AO LEVIED PENALTY OF RS. 14,11,620/- ON THE GROUND THAT THE ASSESSEE HAS NOT DISCLOSED LONG TER M CAPITAL GAIN OF RS. 45,65,220/- IN HIS RETURN OF INCOME. THE L/H OF THE ASSESSEE SUBMITTED BEFORE ME THAT NO PENALTY CAN BE LEVIED IN THE CASE OF A DEAD PERSON. IN MY OPINION, PENALTY IS QUASI CRIMINAL IN NATURE AND IS LEVIABLE / RECOVERALE FROM THE PERSON WHO HAS COMM ITTED THE WRONG. THE SAME CANNOT BE LEVIED OR RECOVERED FROM HIS /HER LEGAL HEIRS. PENALTY IS NOT IN THE NATURE OF A DEBT WHICH CAN BE RECOVERED FROM THE LEGAL HEIR. THE PURPOSE OF LEVYING PENALTY IS TO PUNISH THE PERSON WHO HAS COMMITTED WRONG. THE SAME CANNOT BE EXTENDED TO HIS/ HER LEGAL HEIRS. THIS VIEW IS SUPPORTED BY THE FOLLOWING CASE LAWS:- A). TARAK NATH GAYEN & ORS VS. CEGAT 1987 31 E.L. T. 631 (BOM.) ITA NO. 324/JP/2015 ITO, BUNDI VS. LATE SHRI NAND LAL S/O SHRI BHAWANI SHANKAR THROUGH L/H SH RI MAHAVEER PRASAD SHARMA , DISTT. BUNDI . 3 (B) AL JABEL ALI EXPORTS & IMPORTS VS. CENTRAL CIRC LE 2011 (137) E.L.T. 220 (T) MANJIT SETHI VS. CC 1996 (85) E.L.T. 121 (T) IN VIEW OF THE ABOVE, IT IS HELD THAT NO PENALTY IS LEVIABLE IN THE CASE OF A DECEASED PERSON. THE AO IS THEREFORE, DIRECTED TO DELETE PENALTY OF RS. 14,11,620/- THIS GROUND OF APPEAL IS ALLOWED. 2.3 IT IS ALSO NOTED FROM THE SUBMISSION OF THE LD. AR OF THE ASSESSEE THAT THE GROUNDS RAISED AS GROUND NO. 1 AND 2(B) IN QUANTUM APPEAL OF THE ASSESSEE IN ITA NO. 413/JP/2012 FOR THE ASSESSM ENT YEAR 2008-09, THE COORDINATE BENCH VIDE ITS ORDER DATED 15-05-2015 HA D DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE. 2.4 IN VIEW OF THE ABOVE DELIBERATION, IT IS FOUND THAT WHEN THE COORDINATE BENCH HAD ALLOWED THE GROUNDS (SUPRA) IN QUANTUM APPEAL IN FAVOUR OF THE ASSESSEE VIDE ITS ORDER DATED 15-05-2 014 THEN THERE IS NO NEED TO IMPOSE THE PENALTY BY THE DEPARTMENT AGAINS T THE ASSESSEE U/S 271(1) OF THE ACT. HENCE, THE APPEAL OF THE REVENU E IS DISMISSED ITA NO. 324/JP/2015 ITO, BUNDI VS. LATE SHRI NAND LAL S/O SHRI BHAWANI SHANKAR THROUGH L/H SH RI MAHAVEER PRASAD SHARMA , DISTT. BUNDI . 4 3.0 IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 /09 /2016. SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 26/09/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- ITO, BUNDI 2. IZR;FKHZ@ THE RESPONDENT- LATE SHRI NAND LAL S/O SHRI BHAWAN I SHANKAR THROUGHL/H MAHAVEER PRASAD SHARMA,.DISTT. B UNDI 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 324/JP/2015) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR