KARAN D AGGARWAL, MUMBAI V. ADDL CIT RG 26(2), MUMBAI

ITA 3558/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0649 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 11 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2017
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 19-05-2014
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Assessee Lawyers: RISHABH S HAH
• Keywords: Opportunity of being heard; Ignorance of law

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A , MUMBAI BEFORE S HRI B.R. BASKARAN (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 3558 /MUM/20 1 4 ASSESSMENT YEAR: 2008 - 2009 SHRI KARN D. AGGARWAL, 501, 5 TH FLOOR, RNA PARK VIEW, NEAR GANDHI MAIDAN, CHEMBUR, MUMBAI - 400071 PAN: AFIPA8851Q VS. THE ADDL. COMMISSIONER OF INCOME TAX, RANGE 26(2), MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RISHABH SHAH RESPONDENT BY : SHRI RAJESH KUMAR YADAV DATE OF HEARIN G: 11 /05 /201 7 DATE OF PRONOUNCEMENT: 17/ 0 5 /201 7 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST ORDER DATED 26/03/2014 PASSED BY LD. CIT (APPEALS ) - 28 , MUMBAI FOR THE A S S ESSMENT YEAR 20 08 - 2009 , WHEREBY THE LD. CIT(A) HAS DISMISSED THE APPEAL FILED BY THE ASSESSEE AGAINST PENALTY ORDER PASSED U/S 271D OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT). 2. BRIEF FACTS OF THE CASE ARE THAT DURING THE ASSESSMENT PROCEEDINGS IT WAS NOTICED T HAT THE ASSESSEE HAS TAKEN CASH LOAN OF RS. 1,00,000/ - FROM ONE SHRI SAMSHER SINGH. SINCE, THE LOAN WAS TAKEN IN CASH IN VIOLATION OF PROVISIONS OF SECTION 269SS OF THE ACT, SHOW CAUS E NOTICE WAS ISSUED BY THE AO . IN RESPONSE THEREOF THE AUTHORIZED REPRES ENTATIVE 2 ITA NO. 3558/MUM/2014 ASSESSMENT YEAR: 2008 - 2009 SUBMITTED THAT THE ASSESSEE WAS NOT AWARE OF THE PROVISIONS U/S 269SS. THE AO LEVIED PENALTY OF RS. 1,00,000/ - U/S 271D HOLDING THAT THE IGNORANCE OF LAW IS NO E XCUSE. THE ASSESSEE CHALLENGED THE SAID ORDER BEFORE THE CIT (A). THE LD. CIT (A) DISM ISSED THE APPEAL EX - PARTE ON THE GROUND THAT THE ASSESSEE OR HIS AUTHORIZED REPRESENTATIVE FAILED TO PURSUE THE APPEAL DESPITE AVAILING A REASONABLE OPPORTUNITY OF BEING HEARD BY SEEKING ADJOURNMENTS ON FRIVOLOUS GROUNDS. 3 . AGGRIEVED BY THE ORDER OF LD. CIT (APPEALS) , THE ASSESSE PREFERRED THIS APPEAL BEFORE US ON THE FOLLOWING EFFECTIVE GROUNDS: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LEARNED CIT (A) HAS ERRED IN PASSING THE EX - PARTE ORDER WITHOUT GRANTING SUFFICIENT OPP ORTUNITY OF BEING HEARD TO THE APPELLANT. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LEARNED CIT (A) HAS ERRED IN CONFIRMING THE ACTION OF LEARNED ASSESSING OFFICER IN LEVYING A PENALTY OF RS. 1,00,000/ - U/S. 271 D OF THE INCOME TA X ACT, 1961 FOR VIOLATION OF THE PROVISION OF SECTION 269SS OF THE INCOME TAX ACT, 1961, WITHOUT CONSIDERING THE FACTS & CIRCUMSTANCES OF THE CASE. 4. THE ASSESSEE HAS ALSO FILED AN ADDITIONAL GROUND WITHOUT PREJUDICE TO THE GROUNDS OF APPEAL INITIALL Y RAISED. THE ADDITIONAL GROUND FILED BY THE ASSESSEE READS AS UNDER: ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LEARNED ASSESSING OFFICER AS WELL AS CIT (A) HAS ERRED IN PASSING THE PENALTY ORDER U/S. 271D WHICH IS TIME BARRED AS PER THE PROVISION OF SECTION 275 OF THE INCOME TAX ACT, 1961, HENCE BAD IN LAW AND REQUIRED TO BE QUASHED. 3 ITA NO. 3558/MUM/2014 ASSESSMENT YEAR: 2008 - 2009 5. AFTER HEARING BOTH THE PARTIES , WE ALLOWED THE ADDITIONAL GROUND FILED BY THE ASSESSEE BEING LEGAL IN NATURE AND PERMITTED THE LD. COUNSEL FOR THE ASSESSEE TO ARGUE THE CASE ON ALL THE GROUNDS INCLUDING THE ADDITIONAL GROUND FILED BEFORE US. 6. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE PENALTY ORDER PASSED BY THE AO IS BAD IN LAW AS THE SAME HAS BEEN PASSED IN CONTRAVEN TION OF THE PROVISIONS OF SECTION 275 OF THE ACT. SINCE THE IMPUGNED ORDER IS TIME BARRED, THE SAME IS LIABLE TO BE QUASHED . 7. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTATIVE RELIED ON THE CONCURRENT FINDINGS OF THE AUTHORITIES BELOW. 8. WE NOTI CE THAT THE LD. CIT (A) HAS PASSED THE IMPUGNED ORDER EX - PARTE AGAINST THE ASSESSEE AFTER BEING SATISFIED THAT THE ASSESSEE IS NO MORE INTERESTED IN PURSUING THE APPEAL. ADMITTEDLY , THIS ADDITIONAL GROUND WAS NOT RAISED BEFORE THE LD. CIT(A). UNDER THESE CIRCUMSTANCES, WE ARE OF THE CONSIDERED VIEW THAT THE LEGAL GROUND RAISED BY THE ASSESSEE IS REQUIRED TO BE EXAMINED BY THE LD. CIT(A) AFRESH IN THE INTEREST OF JUSTICE . S INCE , THE ASSESSEE HAS FAILED TO APPEAR BEFORE THE LD. CIT(A) DESPITE SUFFICIENT OPPO RTUNITIES OF BEING HEARD PROVIDED TO HIM , WE IMPOSE A PENALTY OF RS. 1,000/ - ON THE ASSESSEE AND SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND SEND THE APPEAL BACK TO THE LD. CIT(A) TO PASS THE ORDER AFRESH IN THE LIGHT OF THE LEGAL GROUND RAIS ED BY THE ASSESSEE BEFORE THE TRIBUNAL , AFTER HEARING THE ASSESSEE . THE ASSESSEE IS DIRECTED TO DEPOSIT THE COST IN THE ACCOUNT OF THE DEPARTMENT WITHIN TWO MONTHS FROM THE DATE OF THIS ORDER. 4 ITA NO. 3558/MUM/2014 ASSESSMENT YEAR: 2008 - 2009 IN THE RESULT, APPEAL FILED BY THE ASSESSEE FOR THE ASSESSM ENT YEAR 2008 - 2009 IS ALLOWED FOR THE STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT 17 TH MAY , 2017 . SD/ - SD/ - ( B.R. BASKARAN ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 17 / 0 5 / 2017 ALINDRA PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI