ITO, CHITTORGARH V. Shri Govind Lal Vijayvargiya, CHITTORGARH

ITA 381/JODH/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1578 (ITAT-JODHPUR)
• Duration Of Justice: 4 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 17-10-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MAHESH KUMARDR
• Assessee Lawyers: N O N E
• Keywords: Opportunity of being heard; Reasonable cause

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL: JODHPUR BENCH : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO. 381/JU/2012 (ASSESSMENT YEAR 2007-08) INCOME TAX OFFICER, VS. SH. GOVIND LAL VIJAYVARGI YA WARD-3, 54, KABIR COLONY, KILA ROAD, CHITTORGARH. CHITTORGARH. (APPELLANT) (RESPONDENT) ASSESSEE BY : N O N E. DEPARTMENT BY : SH. MAHESH KUMAR-DR. DATE OF HEARING : 26/02/2013. DATE OF PRONOUNCEMENT : 15/03/2013. PER HARI OM MARATHA, J.M. : THIS APPEAL OF THE REVENUE FOR A.Y. 2007-08 IS DIR ECTED AGAINST THE ORDER OF LD. CIT(A) DATED 22/08/2012. THIS APPE AL IS EMANATING FROM THE PENALTY ORDER DATED 24.08.2011 PASSED U/S 271D OF THE INCOME TAX ACT, 1961 (THE ACT FOR SHORT) BECAUSE, AS PER THE AO THE ASSESSEE HAS CONTRAVENED THE PROVISIONS OF SECTION 269SS OF THE ACT. 2. IT WAS FOUND THAT THE ASSESSEE HAS OBTAINED LOAN WORTH RS. 12,00,000/- (RS. 10,50,000/- + RS. 1,50,000/-) FROM SHRI SATYA NARAYAN VIJAYWARGIYA ON 08.01.2007, IN CASH. THE A.O., BY TREATING IT AS A 2 VIOLATION OF SECTION 269SS OF THE ACT, INITIATED PE NALTY PROCEEDINGS U/S 271D OF THE ACT AND IMPOSED THE IMPUGNED PENALTY AF TER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HOWEVER , THE LD. CIT(A) HAS DELETED THE ENTIRE PENALTY OF RS. 12 LAKHS IMPO SED VIDE ORDER DATED 24.08.2011 ON THE REASONING THAT THESE AMOUNT S WERE TAKEN BY THE ASSESSEE FROM HIS SON THROUGH BEARER CHEQUES FO R THE BENEFIT OF HIS BUSINESS PERTAINING TO THE SALES AND SERVICE OF TR ACTORS WHEREBY THE PROVISIONS OF SECTION 269SS ARE NOT VIOLATED. AGGR IEVED, THE REVENUE HAS FILED THIS APPEAL. 3. BEFORE US NO ONE CAME PRESENT TO ARGUE ON BEHALF OF THE RESPONDENT/ASSESSEE DESPITE BEING DULY SERVED, THER EFORE, THIS APPEAL WAS HEARD EX-PARTE. WE HAVE HEARD LD. D.R. AT LENGT H. WE HAVE FOUND THAT THE FACTS OF THE CASE WHICH THE AO HAS MENTION ED IN HIS ORDER ARE NOT EXACTLY THE SAME WHICH THE LD. CIT(A) HAS CULLE D OUT. THE A.O. HAS MENTIONED THAT THE ASSESSEE DID NOT PLEAD ANY REAS ONABLE CAUSE FOR THIS VIOLATION TO SAVE PENALTY OF SECTION 271D. WH EREAS THE LD. CIT(A) HAS FOUND THAT THERE IS A REASONABLE CAUSE BECAUSE OF INTER SE TRANSACTION BETWEEN THE SON AND THE FATHER. RATHER , IN REPLY TO SHOW- CAUSE BEFORE THE A.O., THE ASSESSEE HAS MENTIONED T HAT THE A.O. DID NOT REQUIRE THE ASSESSEE TO EXPLAIN THESE AMOUNTS D URING THE ASSESSMENT PROCEEDINGS. IF REQUIRED, IT COULD BE E XPLAINED PROPERLY. 3 BUT THE A.O. HAS IGNORED THIS SUBMISSION. THEREFORE , THE TRIBUNAL BEING THE FINAL FACT FINDING BODY IT BECOMES IMPERATIVE T O BRING FORTH THE FULL AND FINAL FACTS OF THE CASE. ACCORDINGLY, BY SETTIN G ASIDE THE APPELLATE FINDING WE RESTORE THE ENTIRE APPEAL TO THE FILE OF AO FOR DE NOVO CONSIDERATION AND FRESH ADJUDICATION OF THE ISSUE. NEEDLESS TO MENTION THAT OPPORTUNITY OF BEING HEARD SHALL BE GIVEN TO T HE ASSESSEE AS PER LAW. 4. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH MARCH, 2013. SD/- SD/- [N.K. SAINI] [HARI OM MARATHA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 15 TH MARCH, 2013. VL/- COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSISTANT REGISTRAR