Sh. Brij Mohan Batra, Hoshiarpur V. The Income Tax Officer, Hoshiarpur

ITA 362/ASR/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8697 (ITAT-AMRITSAR)
• Duration Of Justice: 8 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 18-01-2017
• Assessment Year: 2003-2004
• Appeal Filed On: 24-06-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 274; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JHALANDHAR (CIRCUIT BENCH) BEFORE SHRI A. D. JAIN, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER IN ITA NO.361/ASR/2016 & ITA. NO. 362/ASR/2016 ASSESSMENT YEAR: 2002-03 & 2003-04 SHRI BRIJ MOHAN BATRA VS. ITO WARD 3 PROP. M/S. BATRA TRADERS HOSHIARPUR DHOBI GHAT ROAD HOSHIARPUR PAN: AASPB0553B (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SURINDER MAHAJAN, C.A. REVENUE BY : SMT. BALVINDER KAUR, SR. DR. DATE OF HEARING : 24/01/2017 ORDER PRONOUNCED ON : 20/03/2017 ORDER PER A.D. JAIN, J.M. THESE ARE ASSESSEES APPEALS FOR A.YS. 200203 & 2 00304 AGAINST CONFIRMATION OF LEVY OF CONCEALMENT PENALTY . SINCE A COMMON ISSUE IS INVOLVED IN BOTH THESE APPEALS, THE Y ARE BEING DISPOSED BY THIS COMMON ORDER. IN ITA 361/ASR/2016, PENALTY OF RS. 1,18,622/- HAS BEEN LEVIED ON ADDITION OF RS. 5,62, 980/-. IN ITA 362/ASR/2016, PENALTY OF RS. 45,053/- HAS BEEN IMPO SED ON ADDITION OF RS. 2,26,150/-. 2. IN ITA 361/ASR/2016, THERE IS DELAY OF 33 DAYS IN F ILING THE APPEAL IN THE APPLICATION FILED FOR CONDONATION OF DELAY, IT HAS BEEN STATED THAT THE ASSESSEE HANDED OVER THE CIT (A)S ORDER TO THE ACCOUNTANT OF THE FIRM, SHRI SAHIB DAYAL, TO CONTAC T M/S. SURINDER ITA NO. 361/ASR/2016 & 362/ASR/2016 2 MAHAJAN & ASSOCIATES, JHALANDHAR FOR PREPARATION OF APPEAL; THAT IT WAS ONLY ON 17/06/2016 THAT SHRI SAHIB DAYAL CALLED THE ASSESSEE AND STATED THAT HE HAD FORGOTTEN TO SEND THE DOCUMENT T O M/S. SURINDER MAHAJAN & ASSOCIATES; THAT HE (THE ASSESSEE) IMMEDI ATELY ASKED THE ACCOUNT TO CONTACT M/S. SURINDER MAHAJAN & ASSOCIAT ES, JHALANDHAR; AND THAT IT WAS DUE TO THIS REASON THAT THE APPEAL GOT TO BE FILED WITH THE DELAY OF 33 DAYS. AN AFFIDAVIT OF THE ASSESSEE AND AN AFFIDAVIT OF THE AFORESAID SHRI SAHIB DAYAL HAVE BEEN FILED ALON GWITH THE APPLICATION. 3. IN VIEW OF THE CONTENTS OF THE APPLICATION, WE FIND THAT THE FILING OF THE APPEAL IN TIME WAS PREVENTED BY SUFFICIENT C AUSE BEYOND THE CONTROL OF THE ASSESSEE. EVEN OTHERWISE, IT CANNOT BE SAID THAT THE ASSESSEE WOULD STAND TO GAIN ANYTHING BY INTENTIONA LLY GETTING HIS CASE HIT BY THE BAR OF LIMITATION. ACCORDINGLY, THE DELAY IS CONDONED. 4. COMING TO THE MERITS OF THE CASES, IN ITA NO. 361/A SR/2016, THE PROCEEDINGS FOR PENALTY WERE INITIATED FOR CONC EALMENT OF PARTICULARS OF INCOME, WHEREAS IT WAS IMPOSED FOR C ONCEALMENT OF INCOME AS WELL AS FOR FURNISHING INACCURATE PARTICU LARS THEREOF. IN THE MATTER CONCERNING ITA 362/ASR/2016, PENALTY PROCEED INGS WERE INITIATED FOR FURNISHING INACCURATE PARTICULARS OF INCOME AND FOR CONCEALMENT OF PARTICULARS OF INCOME. NOTICE U/S 27 4 OF THE IT ACT, WAS ISSUED TO THE ASSESSEE TO SHOW CAUSE WHY PENALT Y BE NOT IMPOSED SINCE THE ASSESSEE HAD CONCEDED THE PARTICU LARS OF HIS ITA NO. 361/ASR/2016 & 362/ASR/2016 3 INCOME OR HAD FURNISHED INACCURATE PARTICULARS OF INCOME. TH E PENALTY WAS ALSO IMPOSED ON BOTH THESE COUNTS. 5. IN CIT AND ANR. VS. MANJUNATHA COTTON & GINNING FA CTORY 359 ITR 565 (KARN.), IT HAS BEEN HELD [PARA 63 (P) & (Q ) OF THE REPORT] THAT NOTICE U/S 274 SHOULD SPECIFICALLY STATE THE GROUND MENTIONED IN SECTION 271 (1) (C), I.E., WHETHER IT IS FOR CONCEA LMENT OF INCOME OR FOR FURNISHING OF INACCURATE PARTICULARS THEREOF; AND THAT SENDING A PRINTED FORM WHERE ALL THE GROUNDS MENTIONED IN SEC TION 271 ARE MENTIONED WOULD NOT SATISFY THE REQUIREMENT OF LAW. THE LD. CIT (A), IN PARA 12 OF HIS ORDER, HAS STATED THAT THE FACTS IN MANJUNATHA (SUPRA) ARE DIFFERENT FROM THOSE IN THE PRESENT CAS E. HOWEVER, IT IS NOT DISPUTED THAT HEREIN ALSO, WHEREAS THE PENALTY PROCEEDINGS WERE INITIATED ON ONE LIMB OF S. 271 (1) (C), THE PENALT Y WAS LEVIED ON THE OTHER. SO, MANJUNATHA (SUPRA) IS SQUARELY APPLICA BLE TO THE FACTS OF ITA 361/ASR/2016. A SIMILAR IS THE POSITION QUA THE CASE LAWS DISTINGUISHED IN PARAS 13 TO 16 OF THE IMPUGNED ORD ER. 6. MANJUNATHA (SUPRA), INTER ALIA, HAS BEEN CONSIDER ED AND FOLLOWED BY THIS BENCH IN ROSHAN LAL TILAK RAJ & C O. VS. ITO, 46CCH 130(ASR) (TRIBUNAL), AUTHORED BY ONE OF US, THE LD. AM. 7. THE LD. CIT (A) HAS RELIED ON M/S. REHMAT DEVELOPM ENT & ENGG., 130 ITR 602 (GUJ.) AGAINST THE ASSESSEE IN THE MATTER CONCERNING ITA 362/ASR/2016. HOWEVER, IT IS SETTLED LAW THAT WHERE TWO MUTUALLY CONTRADICTORY VIEWS OF DIFFERENT HIGH COURTS EXIST, THE ITA NO. 361/ASR/2016 & 362/ASR/2016 4 ONE IN FAVOUR OF THE ASSESSEE NEEDS BE FOLLOWED, WH ERE THE VIEW AGAINST THE ASSESSEE IS NOT OF THE JURISDICTIONAL H IGH COURT. 8. THEREFORE, RESPECTFULLY FOLLOWING MANJUNATHA (SUP RA), THE PENALTIES FOR THE YEARS ARE DELETED. 9. IN THE RESULT, BOTH THE APPEALS ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 20.0 3.2017 SD/- SD/- (T.S. KAPOOR) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 20.03.2017 *R COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT R EGISTRAR