Dr. Sunil Jain, Indore V. THE ACIT Circle-1(2), Indore

ITA 387/IND/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 2442 (ITAT-INDORE)
• Duration Of Justice: 3 year(s) 6 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 03-11-2020
• Assessment Year: 2007-2008
• Appeal Filed On: 26-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K G GOYAL
• Keywords: Set aside
• Section: 271(1)(c)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.387/IND/2017 ASSESSMENT YEAR:2007-08 DR. SUNIL JAIN 1, SWASTIK NAGAR INDORE / VS. ACIT - 1(2) INDORE ( APPELLANT ) ( REVENUE ) P.A. NO. ABJPJ0262B APPELLANT BY SHRI SUBHASH JAIN, CA REVENUE BY SHRI K.G. GOYAL, SR. DR DATE OF HEARING: 03.11.2020 DATE OF PRONOUNCEMENT: 27.11.2020 / O R D E R PER KUL BHARAT, J.M: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)(IN SHORT LD. CIT(A)-I, INDORE DATED 15.03.2016 PERTAINING TO ASSESSMENT YEAR 2007 -08, CHALLENGING THE CONFIRMATION OF PENALTY LEVIED U/S 271(1)(C) AT RS.3,29,891/-. SUNIL JAIN /ITANO.387/IND/2017 2 2. DURING THE COURSE OF HEARING, THE ASSESSEE FILE D AN APPLICATION UNDER RULE 11 OF APPELLATE TRIBUNAL RULES IN RESPEC T OF TAKING ADDITIONAL GROUND OF APPEAL WHICH READS AS UNDER: WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CAS E PENALTY U/S 271(1)(C) COULD HAVE BEEN LEVIED ON THE ASSESSE E IN THE ABSENCE OF ANY SATISFACTION RECORDED BY THE LD. AO IN THE SHOW CAUSE NOTICE REGARDING THE EXACT CHARGE VIZ. EITHER CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS, FOR WHICH PENALTY U/S 271(1)(C) WAS IMPOSED. 3. SINCE THE AFORESAID GROUND IS PURELY A LEGAL GROUND AND IN VIEW OF THE DECISION OF HON'BLE SUPREME COURT I N CASE OF NTPC VS. CIT (1998) 229 ITR 383(SC), WE ADMITTED THI S ADDITIONAL GROUND FOR HEARING. BEFORE US, LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT THE PENALTY, SO IMPOSED WAS BAD IN LAW AS THE SAME WAS LEVIED IN SUCH A CASUAL MANNER WITHOUT SPECIFICALLY REPLYING ON ONE PARTICULAR LIMB O F LEVYING THE PENALTY AS IS EVIDENT FROM THE NOTICE ISS UED U/S 271(1)(C) OF THE ACT BY THE AO. HE ALSO RELIED UPON CERTAIN JUDICIAL PRONOUNCEMENT ON THIS ISSUE. SUNIL JAIN /ITANO.387/IND/2017 3 4. ON THE OTHER HAND, LD. SR. DR DEFENDED THE ORDERS OF THE REVENUE AUTHORITIES. 5. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US AND CAREFULLY GONE THROUGH T HE WRITTEN SUBMISSION AND DECISIONS REFERRED AND RELIED BY THE LD. COUNSEL FOR THE ASSESSEE. FROM GOING THROUGH THE NOTICE ISSUED U/S 271(1) OF THE ACT, IT IS WELL EV IDENT THAT IN THE NOTICE THE SPECIFIC CHARGE/LIMB U/S 271(1)(C ) OF THE ACT WAS NOT MENTIONED. THE LD. A.O HAS NOT STRUCK OF F ONE OF THE CHARGE WHICH IS NOT RELEVANT TO THE ASSESSEE. I T IS NOT CLEAR AS TO WHETHER THE PENALTY HAS BEEN LEVIED FOR CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THEREFORE, THE JUDGMENT OF HO NBLE HIGH COURT IN THE CASE OF PR. CIT V/S KULWANT SINGH BHATIA (2018) 33 ITJ 777(MP) IS SQUARELY APPLICABLE ON THIS ISSUE WHEREIN THE REVENUES APPEAL WAS DISMISSED BY THE HON BLE HIGH COURT OBSERVING AS FOLLOWS:- ON DUE CONSIDERATION OF THE ARGUMENTS OF THE LEARNED COUNSEL OF THE RESPONDENT, SO ALSO CONSIDERING THE FACT THAT THE GROUND MENTIONED IN SHOW CAUSE NOTICE WOUL D NOT SATISFY THE REQUIREMENT OF LAW, AS NOTICE WAS N OT SPECIFIC, WE ARE OF THE VIEW THAT THE LEARNED TRIBUN AL HAS RIGHTLY RELYING ON THE DECISION OF CIT V/S MANJ UNATH COTTON GINNING FACTORY (SUPRA) AND CIT V/S SSAS SUNIL JAIN /ITANO.387/IND/2017 4 EMERALDS MEADOWS (SUPRA) RIGHTLY ALLOWED THE APPEAL OF THE ASSESSEE AND SET ASIDE THE ORDER OF PENALTY IMPOSED BY THE AUTHORITIES. 6. SINCE THE FACTS AND CIRCUMSTANCES ARE SAME, WE ARE OF THE VIEW THAT SINCE THE AO DID NOT SPECIFICALLY MENTI ONED AS TO ON WHICH PARTICULAR LIMB, THE PENALTY PROCEEDINGS WERE INITIATED, THE PENALTY IS LIABLE TO BE DELETED IN VIEW OF THE AFORESAID FACTS IN THE LIGHT OF JURISDICTIONAL HIGH COU RT DECISION IN CASE OF PR. CIT V/S KULWANT SINGH BHATIA (SUPRA). 7. IN RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 26.11.2 020. SD/- (MANISH BORAD) SD/- (KUL BHARAT) A CCOUNTANT MEMBER JUDICIAL MEMBER INDORE; DATED : 27/11/2020 PATEL/PS COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE