PURVANKARA PROJECTS LTD, BANGALORE V. ACIT CEN CIR 2,

ITA 391/MUM/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7305 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2005-2006
• Appeal Filed On: 27-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJAT MITTAL
• Assessee Lawyers: RAJEEV WAGLEY
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'C' BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH, JUDICIAL MEMBER ITA NOS. 391 & 392/MUM/2016 (ASSESSMENT YEARS: 2005-06 & 2006-07) M/S. PURAVANKARA PROJECTS LTD. 130/1, ULSOOR ROAD BANGALORE 560042 VS. ACIT, CENTRAL CIRCLE - 2 ROOM NO. 906, 9TH FLOOR OLD CGO BLDG. ANNEXE M.K. ROAD, MUMBAI 400020 PAN AAACP2550R APPELLANT RESPONDENT APPELLANT BY: SHRI RAJEEV WAGLEY RESPONDENT BY: SHRI RAJAT MITTAL DATE OF HEARING: 15.02.2018 DATE OF PRONOUNCEMENT: 02.05.2018 O R D E R PER SHAMIM YAHYA, AM THESE ARE APPEALS BY THE ASSESSEE DIRECTED AGAINST THE RESPECTIVE ORDERS OF THE LEARNED CIT(A) FOR THE CONCERNED ASSE SSMENT YEARS AGAINST THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT (HEREINAFTER THE ACT) AS UNDER: - A.Y. PENALTY 2005-06 ` 2,12,74,580/- 2006-07 ` 41,61,620/- 2. THE ASSESSEE HAS ALSO SOUGHT TO RAISE COMMON ADDITI ONAL GROUND. THE SUBMISSIONS IN THIS REGARD READ AS UNDER: - THE APPELLANT HUMBLY PRAYS THAT THIS HON'BLE TRIBUN AL BE PLEASED TO ALLOW THE APPELLANT TO RAISE THE FOLLOWI NG ADDITIONAL GROUNDS OF APPEAL NUMBERED AS 6 & 7 AFTE R THE GROUND OF APPEAL NO. 5 IN THE ORIGINAL GROUNDS OF A PPEAL:- 6. CONFIRMING THE ABOVE PENALTY WITHOUT APPRECIATIN G THE FACT THAT IN THE NOTICE DATED 28.3.2014 ISSUED U/S. 274 R.W.S. 2 71 OF INCOME TAX ITA NOS. 391&392/MUM/2016 M/S. PURAVANKARA PROJECTS LTD. 2 ACT, 1961, THE RELEVANT WORDS I.E. CONCEALMENT OF I NCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME WERE NOT STRUCK OFF & HENCE, THE NOTICE SUFFERED FROM THE VICE OF NON-APPLICATION OF MIND BY THE AO AND WAS INVALID. AND HENCE, PENALTY U/S. 271(1)( C) COU LD NOT BE LEVIED. 7. CONFIRMING THE PENALTY WITHOUT APPRECIATING THE FACT THAT THE APPELLANT HAD TO BE MADE AWARE HAS TO WHICH OF THE TWO CHARGES I.E. (A] FOR CONCEALING THE PARTICULARS OF INCOME OR (B) FURNISHING INACCURATE PARTICULARS OF INCOME ARE BEING PUT AGAINST HIM. AN D IF IT WAS NOT SO, THE NOTICE WAS INVALID AND PENALTY U/S. 271(1)( C) COULD NOT BE LEVIED. THE APPELLANT STATES THAT THE ADDITIONAL GROUNDS SO UGHT TO BE RAISED NOW ARE THE LEGAL GROUNDS WHICH GO TO THE ROOT OF T HE APPEAL. THEY ALSO DO NOT REQUIRE ANY FRESH INVESTIGATION INTO TH E FACTS OF THE CASE, SINCE THE DOCUMENT IN SUPPORT OF THE ABOVE GROUNDS OF APPEAL I.E. NOTICE U/S. 274 WAS ALREADY ON THE RECORD BEFORE TH E LOWER AUTHORITIES. THEY ARE PURELY LEGAL GROUNDS. 3. WE HAVE HEARD BOTH THE COUNSELS AND PERUSED THE REC ORD. ON THE ANVIL OF HONBLE APEX COURT DECISION IN THE CASE OF NTPC WE ADMIT THE ADDITIONAL GROUND. 4. UP ON CAREFUL CONSIDERATION, WE NOTE THAT THIS GROU ND WAS NEVER RAISED BEFORE THE LEARNED COMMISSIONER OF INCOME TA X APPEALS NOR THE SAME WAS EVER RAISED AT ANY TIME BEFORE THE ASSESSI NG OFFICER IN THE PENALTY PROCEEDINGS. WE FURTHER FIND THAT THE ISSUE ALSO NEEDS REFERENCE TO ORIGINAL RECORDS. HENCE IN OUR CONSIDERED OPINION I N THE INTEREST OF JUSTICE WILL BE SERVED IF THE ADDITIONAL GROUND NOW BEING R AISED IS REMITTED TO THE FILE OF LEARNED CIT(A). THE LEARNED CIT(A) IS DIREC TED TO CONSIDER THE ADDITIONAL GROUND AND PASS APPROPRIATE ORDER ON THE GROUND SO RAISED AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD. 5. SINCE WE HAVE ALREADY REMITTED THE ADDITIONAL GROUN D WHICH GOES TO THE ROOT OF THE MATTER, WE ARE NOT CONSIDERING THE MERITS OF THE ORDER PASSED BY THE LEARNED CIT(A).IT HAS BEEN EXPOUNDED BY THE HONBLE MADRAS HIGH COURT IN THE CASE OF RAMDAS PHARMACY 77 ITR 276 THAT ALL ISSUES ARISING IN AN APPEAL SHOULD BE DECIDED INSTE AD OF DECIDING THE ISSUES IN PIECEMEAL MANNER. AS DECIDING ONLY PART O F THE APPEAL LEADS TO MULTIPLICATION OF PROCEEDINGS AT DIFFERENT LEVELS A ND FORUMS WHICH IS NOT DESIRABLE. AFTER THE ORDER OF LEARNED CIT(A) IS COM PLETE PURSUANT TO OUR ITA NOS. 391&392/MUM/2016 M/S. PURAVANKARA PROJECTS LTD. 3 REMITTING THE ADDITIONAL GROUND AS ABOVE IT WILL BE OPEN TO THE PARTIES TO RAISE THE GROUNDS IN APPEAL AS AND IF DEEMED NECESS ARY. 6. IN THE RESULT THESE APPEALS FILED BY THE ASSESSEE S TAND ALLOWED FOR STATISTICAL PURPOSES. 7. ORDER PRONOUNCED IN THE OPEN COURT ON 2 ND MAY, 2018. SD/ - SD/ - (AMARJIT SINGH) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 2 ND MAY, 2018 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -47, MUMBAI 4. THE PR. CIT, CENTRAL-1, MUMBAI 5. THE DR, C BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.