Mr. Anil Ananda Pokharnikar , Pune V. The Income Tax Officer, Ward 10(3) , Pune

ITA 356/PUN/2024

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 1321 (ITAT-PUNE)
• Duration Of Justice: 4 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 19-06-2024
• Assessment Year: 2011-2012
• Appeal Filed On: 21-02-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PAWAN BHARATI
• Assessee Lawyers: PRASHANT MUNOT
• Keywords: Principle of natural justice; Set aside
• Section: 147; 69; 263; 271(1)(c); 144

Judgement Text

आयकर अपीलीय अधिकरण “ए” न्यायपीठ पुणे में । IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, PUNE BEFORE SHRI R.K. PANDA, VICE PRESIDENT AND MS. ASTHA CHANDRA, JUDICIAL MEMBER आयकर अपील सं. / ITA No.356/PUN/2024 धििाारण वर्ा / Assessment Year : 2011-12 Mr. Anil Ananda Pokharnikar, S. No. 135, Patanjali Chikitsalya- Gurukrupa Agency, Near Sai Mandir, Mohan Nagar, Chinchwad, Pune-411019 PAN : AANPP9295K Vs. The Income Tax Officer, Ward – 10(3), Akurdi, Pune अपीलार्थी / Appellant प्रत्यर्थी / Respondent Assessee by : Shri Prashant Munot Department by : Shri Pawan Bharati Date of hearing : 20-06-2024 Date of Pronouncement : 28-06-2024 आदेश / ORDER PER ASTHA CHANDRA, JM : The appeal filed by the assessee is directed against the order dated 10.10.2023 of the Ld. Commissioner of Income Tax (Appeals)/NFAC, Delhi [“CIT(A)”] whereby he confirmed the penalty of Rs.19,22,608/- levied by the Ld. Assessing Officer (“AO”) u/s 271(1)(c) of the Income Tax Act, 1961 (the “Act”) pertaining to Assessment Year (“AY”) 2011-12. 2. The assessee has taken the following grounds of appeal:- “A) Validity of Penalty Order based on a non-est Assessment Order, which no longer survives-in-law : 1. On the facts and circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals) ["CIT(Appeals)"] erred in confirming the Order levying Penalty u/s. 271(1)(c) of the Act based on an non-est Assessment order passed u/s. 144 read with sec. 147 of the Act, which was already set aside by the learned Principal Commissioner of Income Tax, Pune-3, exercising Revisionary powers under section 263 of the Income Tax Act, 1961 [in short "the Act"] vide Revision Order dated 31.03.2021. B) Validity of Penalty Order confirmed without adjudication and disposal of Quantum Appeal pending against the Assessment Order: 2. On the facts and circumstances of the case and in law, the learned CIT (Appeals) erred in confirming the Order levying Penalty u/s. 2 ITA No.356/PUN/2024, AY 2011-12 271(1)(c) of the Act, failing to appreciate that, adjudication on Penalty Appeal before adjudication and disposal of Quantum Appeal pending against the Assessment Order was pre-mature, void ab-initio, invalid and bad in law. C) Validity of Penalty Order in furtherance of an Assessment Order which in-itself was void ab-initio, invalid and bad-in-law : 3. On the facts and circumstances of the case and in law, the learned CIT (Appeals) erred in confirming the Order levying Penalty u/s. 271(1)(c) of the Act, failing to appreciate that, reopening of the Assessment proceedings itself, wherein the impugned penalty proceedings were initiated, were invalid, void ab-initio and bad in law. 4. On the facts and circumstances of the case and in law, the learned CIT (Appeals) erred in confirming the Order levying Penalty u/s. 271(1)(c) of the Act, failing to appreciate that, the impugned assessment order based on which the impugned Order levying Penalty was passed by the learned Assessing, was in-itself illegal, invalid, void ab-initio and bad in law. D) On Merits : Penalty levied was incorrect and bad in law : Without prejudice to other grounds herein, 5. The learned CIT (Appeals) erred both on facts and in law, in confirming the Order levying Penalty u/s. 271(1)(c) of the Act, failing to appreciate that, the impugned additions made in the assessment order invoking section 69 of the Act, for which impugned Penalty was levied u/s. 271(1)(c) of the Act, in-itself was without satisfying the pre- conditions therein, was illegal, invalid, void ab-initio and bad in law. 6. The learned CIT (Appeals) erred both on facts and in law, in confirming the Order levying Penalty of Rs.19,22,608/- u/s. 271(1)(c) of the Act, E) Non Speaking, arbitrary & mechanical Order and Violation of Pronciples of Natural Justice : 7. The learned CIT (Appeals) erred both on facts and in law, in confirming an mechanical, arbitrary, adverse, non-speaking Penalty Order passed by the learned Assessing Officer without appreciating the facts and circumstances of the case and the correct legal position in its proper perspective, and without satisfaction of the pre-conditions in section 271(1)(c) of the Act. 8. The learned CIT (Appeals) erred both on facts and in law, in passing an ex-parte adverse appeal order confirming the Penalty levied by the learned Assessing Officer u/s. 271(1)(c) of the Act, failing to appreciate the facts and circumstances of the case and the correct legal position in its proper perspective, and without adjudicating on the grounds of appeal and submissions put forth by the appellant and in violation of the principles of natural justice, thereby rendering the order void ab-inito, perverse and band in law. F) Common Legal Ground : 9. IN any view of the matter and in any case, the initiation of the penalty proceedings, the penalty proceedings conducted in furtherance thereof, the impugned order levying penalty, and the Appeal order passed by the learned CIT (Appeals) confirming the impugned penalty 3 ITA No.356/PUN/2024, AY 2011-12 order, all were contrary to the law, facts and circumstances of the case and were otherwise bad in law. The appellant craves leave to add, amend, alter, vary and/or withdraw any or all the above grounds of appeal and/ or to adduce and rely upon such further evidence/additional evidence and/ or documents as may be required at any time before and during the time of hearing.” 3. The appeal which was due on 09.12.2023 has been filed on 22.02.2024. An application for condonation of delay has been moved accompanied with an affidavit sworn by the assessee. After hearing the Ld. Representatives of the parties, the delay is hereby condoned. 4. Vide our order of even date we have set aside the order of the Ld. CIT(A) on quantum. We, therefore, set aside the impugned penalty order of the Ld. CIT(A) and restore the matter back to his file for decision afresh in accordance with law after allowing reasonable opportunity of being heard to the parties. We order accordingly. 5. In the result, the appeal of the assessee is treated as allowed for statistical purpose. Order pronounced in the open court on 28 th June, 2024. Sd/- Sd/- (R.K. Panda) (Astha Chandra) VICE PRESIDENT JUDICIAL MEMBER पुणे / Pune; दिन ांक / Dated : 28 th June, 2024. रदि आदेश की प्रधिधलधप अग्रेधर्ि / Copy of the Order forwarded to : 1. अपील र्थी / The Appellant. 2. प्रत्यर्थी / The Respondent. 3. The Pr. CIT concerned. 4. दिभ गीय प्रदिदनदि, आयकर अपीलीय अदिकरण, “ए” बेंच, पुणे / DR, ITAT, “A” Bench, Pune. 5. ग र्ड फ़ इल / Guard File. //सत्य दपि प्रदि// True Copy// आिेश नुस र / BY ORDER, िररष्ठ दनजी सदचि / Sr. Private Secretary आयकर अपीलीय अदिकरण ,पुणे / ITAT, Pune