MESERS GANESHA RAM UJAGAR MAL , NAKODAR V. INCOME TAX OFFICER , NAKODAR

ITA 386/ASR/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7103 (ITAT-AMRITSAR)
• Duration Of Justice: 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 14-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMIT K UMAR AGGARWAL
• Keywords: Principle of natural justice; Question of law
• Section: 271(1)(c); 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CAMP BENCH AT JALANDHAR BEFORE SH. N. K. SAINI, HONBLE VICE PRESIDENT AND SH. RAVISH SOOD, JUDICIAL MEMBER ITA NO.386/ASR./2018 : ASSTT. YEAR : 2006-07 M/S GANESHA RAM UJAGAR MAL, C/O SH. DINESH SARNA, ADV., B-18, VAKIL BUILDING, MODEL TOWN ROAD, JALANDHAR VS INCOME TAX OFFICER, NAKODAR (APPELLANT) (RESPONDENT) PAN NO. AACFG7458E ASSESSEE BY : SH. ASHRAY SARNA, CA REVENUE BY : SH. AMIT K UMAR AGGARWAL, DR DATE OF HEARING : 11.01.2019 DATE OF PRONOUNCEMENT : 17.01.2019 ORDER PER N. K. SAINI, VICE PRESIDENT: THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 02.04.2018 OF LD. CIT(A)-2, JALANDHAR. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEA L: 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC ES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN C ONFIRMING THE ACTION OF LD. AO IN PASSING THE IMPUGNED ASSESS MENT ORDER U/S 271(1)(C) AND WITHOUT COMPLYING WITH THE MANDATORY CONDITIONS U/S 271 AS ENVISAGED UNDER THE INCOME TAX ACT, 1961. 2. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN C ONFIRMING THE ACTION OF LD. AO IN PASSING THE IMPUGNED ASSESS MENT ORDER U/S 271(1)(C) WITHOUT CONSIDERING THE FACT TH AT NOTICE ITA NO. 386/ASR./2018 GANESHA RAM UJAG AR MAL 2 ISSUED U/S 274 R.W.S. 271 DATED 30.12.2008 IS NOT S PECIFIC THAT ON WHICH LIMB OF SECTION 271(1)(C), PENALTY IS INITIATED. 3. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE S OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN C ONFIRMING THE ACTION OF LD. AO IN PASSING THE IMPUGNED ASSESS MENT ORDER U/S 271(1)(C) WITHOUT CONSIDERING THE SUBMISS IONS OF THE ASSESSEE AND WITHOUT OBSERVING THE PRINCIPLES O F NATURAL JUSTICE. 4. THAT THE APPELLANT CRAVES THE LEAVE TO ADD, MODI FY, AMEND OR DELETE ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING AND ALL THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. 3. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 22.08.2006 DECLARING AN INCOME OF RS.3 5,879/- WHICH WAS PROCESSED U/S 143(1)(A) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). LATER ON, THE CASE WAS SELECTED FOR SCRUTINY AND THE ASSESSMENT WAS FRAMED AT AN IN COME OF RS.22,35,879/- BY MAKING THE ADDITION OF RS.22,00,0 00/-. THE AO ALSO INITIATED THE PENALTY PROCEEDINGS FOR FURNISHI NG OF INACCURATE PARTICULARS OF INCOME. THE AO LEVIED THE PENALTY OF RS.7,40,549/-. 4. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO SUSTAINED THE PENALTY LEVIED BY THE AO. 5. NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL F OR THE ASSESSEE SUBMITTED THAT THE AO IN THE PENALTY NOTICE HAD NOT SPECIFIED THE SPECIFIC CHARGE FOR WHICH THE PENALTY HAS BEEN LEVIED. OUR ATTENTION WA S DRAWN TOWARDS THE NOTICE U/S 274 R.W.S. 271 OF THE ACT DATED 12.01.2016 (COP Y OF WHICH IS PLACED ON RECORD). THE RELIANCE WAS PLACED ON THE DECISIONS O F VARIOUS COURTS AS CITED BEFORE THE LD. CIT(A). RELIANCE WAS ALSO PLACED ON THE DECISION OF THE ITAT ITA NO. 386/ASR./2018 GANESHA RAM UJAG AR MAL 3 DELHI BENCH A, NEW DELHI IN THE CASE OF AMAN MEHT ANI VS DCIT, CC-I, FARIDABAD IN ITA NO. 4325/DEL/2016 FOR THE ASSESSME NT YEAR 2010-11, ORDER DATED 22.11.2017. 6. IN HIS RIVAL SUBMISSIONS, THE LD. DR SUPPORTED T HE IMPUGNED ORDER PASSED BY THE LD. CIT(A). 7. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IT IS NOTICED THA T AN IDENTICAL ISSUE HAVING SIMILAR FACTS HAS BEEN ADJUDICATED BY THE ITAT DELH I BENCH A, NEW DELHI IN THE CASE OF AMAN MEHTANI VS DCIT (SUPRA) WHEREIN ON E OF US (VICE PRESIDENT) IS A CO-SIGNATORY IN THE SAID ORDER DATED 22.11.201 7, IT HAS BEEN HELD AS UNDER: 8. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THERE IS NO CONCEALMENT IN THE PRESENT CASE. THE ASSESSEE HAS ALSO FILED ALL THE DETAILS DURING THE REGULAR ASSESSMENT PROCEEDINGS. FROM THE NOTICE DATED 28.12 .2011 PRODUCED BY THE LD. AR DURING THE HEARING, IT CAN B E SEEN THAT THE ASSESSING OFFICER WAS NOT SURE UNDER WHICH PROVISIO NS OF SECTION 271 OF THE INCOME TAX ACT, 1961, THE ASSESSEE IS LI ABLE FOR PENALTY. THE ISSUE IS SQUARELY COVERED BY THE DECISION OF TH E HON'BLE SUPREME COURT IN CASE OF M/S SSA EMERALD MEADOWS. THE EXTRACT OF THE HONBLE KARNATAKA HIGH COURT IN M/S. SSA EM ERALD MEADOWS ARE AS UNDER WHICH WAS CONFIRMED BY THE HON BLE APEX COURT: '3. THE TRIBUNAL HAS ALLOWED THE APPEAL FILED BY TH E ASSESSEE HOLDING THE NOTICE ISSUED BY THE ASSESSING OFFICER UNDER SECTION 274 READ WITH SECTION 271(L)(C) OF THE INCOME TAX A CT, 1961 (FOR SHORT THE ACT) TO BE BAD IN LAW AS IT DID NOT SPE CIFY WHICH LIMB OF SECTION 271(L)(C) OF THE ACT, THE PENALTY PROCEE DINGS HAD BEEN INITIATED I.E., WHETHER FOR CONCEALMENT OF PARTICUL ARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE TRIBUNAL, WHILE ALLOWING THE APPEAL OF THE ASSESSEE, HAS RELI ED ON THE DECISION OF THE DIVISION BENCH OF THIS COURT RENDER ED IN THE CASE OF COMMISSIONER OF INCOME TAX -VS- MANJUNATHA COTTON AND GINNING FACTORY (2013) 359 ITR 565. ITA NO. 386/ASR./2018 GANESHA RAM UJAG AR MAL 4 4. IN OUR VIEW, SINCE THE MATTER IS COVERED BY JUDG MENT OF THE DIVISION BENCH OF THIS COURT, WE ARE OF THE OPINION , NO SUBSTANTIAL QUESTION OF LAW ARISES IN THIS APPEAL F OR DETERMINATION BY THIS COURT. THE APPEAL IS ACCORDIN GLY DISMISSED. 8. SINCE, THE FACTS OF THE PRESENT CASE ARE SIMILAR TO THE AFORESAID REFERRED TO CASE. SO, RESPECTFULLY FOLLOWING THE AFORESAID REFE RRED TO ORDER DATED 22.11.2017, THE IMPUGNED PENALTY LEVIED BY THE AO A ND SUSTAINED BY THE LD. CIT(A) IS DELETED. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. (ORDER PRONOUNCED IN THE COURT ON 17/01/2019) SD/- SD/- (RAVISH SOOD) (N. K. SAINI) JUDICIAL MEMBER V ICE PRESIDENT DATED: 17/01/2019 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR