Jagdish Agashe Financing Co. Pvt. Ltd., Pune V. ITO, Wd.-11(2), Pune

ITA 334/PUN/2012

• Counselvise Citation: 33424514 RSA 2012
• Duration Of Justice: 2 year(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 19-02-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 17-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P L PATHADE
• Assessee Lawyers: KAUSTUBH DEO
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER , AND SHRI R.K. PANDA, ACCOUNTANT MEMBER. ITA.NO.334/PN/2012 (ASSESSMENT YEAR 2006-07) JAGDISH AGASHE FINANCING CO. PVT. LTD., 836, SHREE YASHASHREE CO-OP HOUSING SOCIETY, SADASHIVPETH, PUNE-411030 .. APPELLANT PAN NO.AAACJ4669B VS. ITO, WARD-11(2), PUNE .. RESPONDENT ASSESSEE BY : SHRI KAUSTUBH DEO REVENUE BY : SHRI P.L. PATHADE DATE OF HEARING : 20-02-2014 DATE OF PRONOUNCEMENT : 20-02-2014 ORDER PER R.K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER DATED 28-07-2011 OF THE CIT(A)-I, PUNE RELATING TO ASSESS MENT YEAR 2006-07. 2. LEVY OF PENALTY OF RS.3,13,992/- BY THE ASSESSIN G OFFICER U/S.271(1)(C) OF THE I.T. ACT WHICH HAS BEEN UPHELD BY THE CIT(A) IN AN EXPARTE ORDER IS THE ONLY ISSUE RAISED BY THE ASSES SEE IN THE GROUNDS OF APPEAL. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE FILED ITS RETURN OF INCOME ON 22-12-2008 DECLARING NIL INCOME AFTER CLA IMING DEDUCTION OF RS.9,32,834/- U/S.80IB(10) OF THE I.T. ACT. THE AS SESSEE IS ENGAGED IN DEVELOPING AND BUILDING HOUSING PROJECT. THE ASSES SING OFFICER REJECTED THE CLAIM OF DEDUCTION U/S.80IB(10) ON THE GROUND T HAT THE ASSESSEE HAS STARTED THE CONSTRUCTION OF THE PROJECT BEFORE 01-0 4-1998 AND THEREFORE IT 2 IS NOT ENTITLED TO DEDUCTION U/S.80IB(10). THE ASS ESSEE DID NOT PREFER ANY APPEAL AGAINST THE SAID DISALLOWANCE. SUBSEQUENTLY , THE ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS U/S.271(1)(C) OF THE I.T. ACT. REJECTING THE VARIOUS EXPLANATIONS FIELD BY THE ASS ESSEE AND OBSERVING THAT THE CIT(A) UNDER IDENTICAL FACTS AND CIRCUMSTA NCES HAS CONFIRMED THE PENALTY LEVIED U/S.271(1)(C) OF THE I.T. ACT FO R A.Y. 2003-04, THE ASSESSING OFFICER LEVIED PENALTY OF RS.3,13,992/- U /S.271(1)(C) OF THE I.T. ACT. IN APPEAL, THE LD.CIT(A) PASSED AN EXPARTE OR DER CONFIRMING THE LEVY OF SUCH PENALTY. WHILE DOING SO, HE ALSO HELD THAT UNDER IDENTICAL FACTS AND CIRCUMSTANCES THE PENALTY LEVIED U/S.271( 1)(C) OF THE I.T. ACT. FOR A.Y. 2003-04 WAS CONFIRMED BY HIS PREDECESSOR. 4. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSE SSEE IS IN APPEAL BEFORE US 5. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE FIND THE ASSESSING OFFICER LEVIED PENALTY U/S.271(1)(C) OF THE I.T. ACT. ON T HE GROUND THAT THE CLAIM OF ASSESSEE TOWARDS DEDUCTION U/S.80IB(10) WAS INCO RRECT SINCE THE PROJECT HAS STARTED BEFORE 01-04-1998. WE FIND THE LD.CIT(A) IN THE EXPARTE ORDER HAS UPHELD THE PENALTY LEVIED U/S.271 (1)(C) OF THE I.T. ACT. WHILE UPHOLDING THE PENALTY HE HAS ALSO CONSIDERED THE ORDER OF HIS PREDECESSOR IN ASSESSEES OWN CASE FOR A.Y. 2003-04 . WE FIND THE ORDER OF THE CIT(A) CONFIRMING THE PENALTY U/S.271(1)(C) OF THE I.T. ACT, 1961 HAS BEEN RESTORED BY THE TRIBUNAL TO THE FILE OF TH E ASSESSING OFFICER FOR A.Y. 2003-04 WHO HAS AGAIN LEVIED THE PENALTY U/S.2 71(1)(C) 3 OF THE I.T. ACT AND AS STATED BY THE LD. COUNSEL FO R THE ASSESSEE THE MATTER IS PENDING BEFORE THE CIT(A) FOR ADJUDICATIO N. UNDER THESE CIRCUMSTANCES AND CONSIDERING THE FACT THAT THE ASS ESSEE COULD NOT APPEAR BEFORE THE LD.CIT(A) DURING THE HEARING OF THE APPE AL FOR THE IMPUGNED YEAR FOR WHICH HE WAS CONSTRAINED TO PASS AN EXPART E ORDER, WE, IN THE INTEREST OF JUSTICE DEEM IT PROPER TO RESTORE THE I SSUE TO THE FILE OF THE LD.CIT(A) FOR FRESH ADJUDICATION. NEEDLESS TO SAY THE LD.CIT(A) SHALL GIVE DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND DECIDE THE ISSUE AS PER LAW. WE HOLD AND DIRECT ACCORDINGLY. THE GR OUND RAISED BY THE ASSESSEE IS ACCORDINGLY ALLOWED FOR STATISTICAL PUR POSES. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF, I.E. ON 20-02-2014 SD/- SD /- (SHAILENDRA KUMAR YADAV ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER SATISH PUNE, DATED 20 TH FEBRUARY 2014 COPY OF THE ORDER IS FORWARDED TO: 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT(A)-I, PUNE 4. THE CIT-I, PUNE 5. THE DR A BENCH, PUNE. 6. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE