Pankajkumar Joitrambhai Patel, Ahmedabad V. ITO, Ward-6(1)(1), Ahmedabad

ITA 404/AHD/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 5259 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 19-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALIT P JAIN
• Assessee Lawyers: SAUMYA SHETH
• Keywords: Condonation of delay
• Section: 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ITA NO.404/AHD/2018 / ASSTT. YEAR: 2012-2013 PANKAJKUMAR JOITRAMBHAI PATEL 261, RAJKESSARI COMPLEX NR.VIKRAM CHEMICAL AMRAIWADI AHMEDABAD. PAN : AKZPP 7012 J VS. ITO, WARD - 6(1)(1) NARAYAN CHAMBERS AHMEDABAD. ( APPLICANT ) ( RESPONENT ) ASSESSEE BY : MS.SAUMYA SHETH, AR REVENUE BY : SHRI LALIT P.JAIN, SR.DR / DATE OF HEARING : 18/10/2018 / DATE OF PRONOUNCEMENT: 23 /10/2018 +,/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: PRESENT APPEAL IS DIRECTED AT THE INSTANCE OF THE A SSESSEE AGAINST THE ORDER OF THE LD.CIT(A)-6, AHMEDABAD DATED 16.8.2017 PASSED FOR THE ASSTT.YEAR 2012-13, BY WHICH THE LD.CIT(A) CONFIRME D ACTION OF THE AO IN IMPOSING PENALTY UNDER SECTION 271(1)(C) OF THE INC OME TAX ACT, 1961. 2. IN THE GROUNDS OF APPEAL, THE ASSESSEE HAS ALSO CHALLENGED IN NOT CONDONING THE DELAY IN FILING APPEAL BEFORE THE LD. CIT(A) AGAINST IMPOSITION OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. ITA NO.404/AHD/2018 2 3. THE ISSUE QUA CONDONATION OF DELAY IN FLING OF APPEAL BEFORE THE LD.FIRST APPELLATE AUTHORITY, WE FIND THAT THE ASSESSEE HAS PLEADED BEFORE THE LD.CIT(A) THE ASSESSEE HAS NO KNOWLEDGE ABOUT RECEI PT OF 143(3) AND 271(1)(C) ORDERS OF THE LD.AO BY THE FATHER OF THE ASSESSEE, WHO DUE TO THE AGE AND OTHER FACTORS MISPLACED THE SAME AND COULD NOT COMMUNICATE TO THE ASSESSEE. IT WAS ONLY WHEN BANKER OF THE ASSESSEE INFORMED THE ASSESSEE ABOUT THE ATTACHMENT OF BANK ACCOUNT BY THE DEPARTM ENT, THE ASSESSEE CAME TO KNOW ABOUT THE ORDERS BEING PASSED. THEREFORE, THE ASSESSEE IMMEDIATELY APPROACHED THE LD.AO AND GOT CERTIFIED COPIES OF TH E ORDERS. THE ASSESSEE THEREAFTER PROCEEDED TO FILE APPEAL BEFORE THE LD.F IRST APPELLATE AUTHORITY. THEREFORE, DUE TO THE REASONS BEYOND THE CONTROL OF THE ASSESSEE COULD NOT FILE APPEAL IN TIME BEFORE THE LD.FIRST APPELLATE AUTHOR ITY. ASSESSEE HAS FILED AN AFFIDAVIT TO THE EFFECT DEPOSING THE FACTS. IT MAY BE MENTIONED HERE THAT NO LITIGANT WOULD INTEND TO GIVE UP HIS/HER RIGHT TO F ILE APPEAL BY SIMPLY GETTING THE APPEAL DELAYED, ON THE OTHER HAND, HE WOULD REM AIN VIGILANT AS FAR AS POSSIBLE TO ENFORCE HIS LEGAL RIGHT. NO DOUBT, THE REASONS CANVASSED BY THE ASSESSEE WERE NOT CONVINCING ENOUGH, BUT TO RENDER SUBSTANTIAL JUSTICE AND IN THE FITNESS OF THINGS, DELAY CAUSED IN FILING APPEA L IS TO BE CONDONED. THUS, WE CONDONE THE DELAY IN FILING APPEAL BEFORE THE LD .CIT(A) AND PROCEED TO DISPOSE OF THIS APPEAL. 4. NOW WE PROCEED TO ADJUDICATE THE ISSUE OF PENALT Y IMPOSED UNDER SECTION 271(1)(C) OF THE ACT. 5. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HA S FILED HIS RETURN OF INCOME ON 26.9.2012 DECLARING TOTAL INCOME AT RS.9, 06,620/-. THE ASSESSMENT WAS FINALIZED ON 27.3.2015 UNDER SECTION 143(3) BY DETERMINING TOTAL INCOME AT RS.39,06,620/-, WHICH INCLUDED AN ADDITION OF RS .30.00LAKHS ON ACCOUNT OF UNEXPLAINED CASH LOAN. THIS ADDITION WAS CONFIRMED BY THE LD.CIT(A). ITA NO.404/AHD/2018 3 THEREAFTER, LD.AO INITIATED PENALTY PROCEEDINGS UND ER SECTION 271(1)(C) OF THE ACT AND IMPOSED PENALTY AN AMOUNT OF RS.9,27,000/-, WHICH WAS ALSO CONFIRMED BY THE LD.FIRST APPELLATE AUTHORITY. TH E ASSESSEE IS NOW CHALLENGING IMPOSITION OF PENALTY BEFORE THE TRIBUN AL. 6. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT A GAINST THE ORDER OF LD.CIT(A) DATED 15.12.2017 VIDE WHICH THE LD.CIT(A ) HAS CONFIRMED THE ACTION OF THE AO IN MAKING ADDITION OF RS.30.00 LAK HS ON ACCOUNT OF ALLEGED UNEXPLAINED CASH LOAN, WAS CHALLENGED BEFORE THE TR IBUNAL IN ITA NO.403/AHD/2018 AND THE TRIBUNAL VIDE ORDER DATED 2 8.6.2018 HELD THAT THE EX PARTE ORDER OF THE LD.CIT(A) WAS PASSED WITHOUT GIVING R EASONABLE OPPORTUNITY TO THE ASSESSEE TO DEFEND ITS CASE, AND ACCORDINGLY THE TRIBUNAL REMANDED BACK ALL THE ISSUES TO THE FILE OF THE CIT (A) FOR RECONSIDERATION. THEREFORE, SINCE ISSUE OF VALIDITY QUANTUM OF ADDIT ION IS PENDING BEFORE THE LD.CIT(A), THE PENALTY UNDER SECTION 271(1)(C) QUA THIS ADDITION DOES NOT SURVIVE AND LIABLE TO BE SET ASIDE TO THE FILE OF C IT(A) TO BE DECIDED DEPENDING UPON THE OUTCOME OF IMPUGNED QUANTUM ADDI TION. ON THE OTHER HAND, THE LD.DR DID NOT DISPUTE THE FACTUAL ASPECT OF THE MATTER. 7. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GO NE THROUGH THE RECORD CAREFULLY. WE FIND THAT S UB-CLAUSE (III) OF SECTION 271(1)(C) PROVIDES MECHANISM FOR QUANTIFICATION OF PENALTY. IT CONTEM PLATES THAT THE ASSESSEE WOULD BE DIRECTED TO PAY A SUM IN ADDITION TO TAXES, IF ANY, PAYABLE HIM, WHICH SHALL NOT BE LESS THAN , BUT WHI CH SHALL NOT EXCEED THREE TIMES THE AMOUNT OF TAX SOUGHT TO BE EVADED B Y REASON OF CONCEALMENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME. IN OTHER WORDS, THE QUANTIFICATION OF THE PENALTY IS DEPENDED UPON THE ADDITION MADE TO THE INCOME OF THE ASSESSE E. SINCE THE TRIBUNAL HAS SET ASIDE QUANTUM APPEAL OF THE ASSESSEE BACK T O THE FILE OF THE LD.CIT(A) ITA NO.404/AHD/2018 4 FOR RECONSIDERATION, WHICH IS PENDING, THE ISSUE OF IMPOSITION OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT DOES NOT ARISE BEFORE US. THEREFORE, WE SET ASIDE THE PENALTY APPEAL ALSO BACK TO THE FILE OF LD.CIT( A) TO BE DECIDED IN ACCORDANCE WITH THE OUTCOME IN THE QUANTUM PROCEEDI NGS PENDING BEFORE HIM. CONSEQUENTLY, APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSE. 8. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 23 RD OCTOBER, 2018 AT AHMEDABAD. S D / - (AMARJIT SINGH) ACCOUNTANT MEMBER S D / - (RAJPAL YADAV) JUDICIAL MEMBER