Shri Ashok Kumar Agarwal, Kanpur V. Income Tax Officer-2(3), Kanpur

ITA 432/LKW/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100325 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 2 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 23-07-2015
• Assessment Year: 1996-1997
• Appeal Filed On: 22-05-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: R K RAM
• Section: 68

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.432/LKW/2014 ASSESSMENT YEAR:1996 - 97 INCOME TAX OFFICER - 2(3), KANPUR. VS SHRI ASHOK KUMAR AGARWAL, 37/17, ROLLAND COMPLEX, 2 ND FLOOR, ROOM NO. 1, THE MALL, KANPUR. PAN:AANPA6323K (RESPONDENT) (APPELLANT) NONE APPELLANT BY SHRI R. K. RAM, D.R. RESPONDENT BY 23/07/2015 DATE OF HEARING 13 /0 8 /2015 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT(A) - I, DEHRADUN HOLDING CONCURRENT CHARGE OF CIT(A) - II, KANPUR CAMP AT KANPUR DATED 18/02/2014 FOR THE ASSESSMENT YEAR 1996 - 97. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX APPEAL HAS ERRED ON FACTS AND IN LAW IN HOLDING THAT ADDITION U/S. 68 CONFIRMED IN APPEAL TANTAMOUNT UNDER STATEMENT OF INCOME. 2. THAT THE LEARNED COMMISSIONER O F INCOME TAX APPEAL HAS ERRED ON FACTS AND IN LAW IN HOLDING THAT THE ADDITIONS U/S. 68 CONFIRMED IN APPEAL BY INCOME TAX APPELLATE TRIBUNAL IS UNDER STATEMENT OF INCOME AND IS LIABLE FOR LEVY OF PENALTY U/S. 271(1) (C) OF THE ACT. 3. THAT THE LEARNED COMM ISSIONER OF INCOME TAX APPEAL HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE PENALTY OF RS.1,13,600/ - WITHOUT PROPER APPRECIATION OF FACTS & LAW. 3. THIS APPEAL WAS EARLIER HEARD EX - PARTE QUA THE ASSESSEE ON 2 3 RD JULY 2014 AND LATER ON WHEN THE ASSESSEE M OVED A MISC. APPLICATION, THE EX - PARTE 2 ORDER DATED 23/07/2014 WAS RECALLED IN MISC. APPLICATION NO. 101/LKW/2014 DATED 13/03/2015 AND THE APPEAL WAS FIXED FOR HEARING ON 24/04/2015. ON THIS DATE, LEARNED A.R. OF THE ASSESSEE SHRI ABHINAV MEHROTRA, PROXY A DVOCATE FOR SHRI PRADEEP MEHROTRA, MOVED AN APPLICATION FOR ADJOURNMENT AND ACCORDINGLY, THE HEARING WAS ADJOURNED TO 11 TH JUNE, 2015. ON THIS DATE AGAIN, AN APPLICATION FOR ADJOURNMENT WAS MOVED BY SHRI VAIBHAV KAPOOR, ASSISTANT OF SHRI ABHINAV MEHROTRA, ADVOCATE STATING THAT SHRI ABHINAV MEHROTRA, ADVOCATE IS OUT OF STATION AND THEREFORE, THE HEARING MAY BE ADJOURNED. IN THE INTEREST OF JUSTICE, THE HEARING WAS AGAIN ADJOURNED TO 23 RD JULY 2015. ON THIS DATE I.E. ON 23/07/2015, NONE APPEARED ON BEHALF OF THE ASSESSEE AND EVEN THERE IS NO REQUEST FOR ADJOURNMENT FROM THE ASSESSEE OR FROM LEARNED A.R. OF THE ASSESSEE AND HENCE, THIS APPEAL WAS HEARD EX - PARTE QUA THE ASSESSEE. 4. LEARNED D. R. OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF LEARNED D.R. OF THE REVENUE, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT THE ISSUE IN DISPUTE WAS DECIDED BY LEARNED CIT(A) AS PER PARA 3.2 OF HIS ORDER, WHICH IS REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: - 3.2 THE RIVAL CONTENTIONS HAVE BEEN CONSIDERED. THE UNDENIABLE FACT IN THIS CASE IS THAT SECTION 68 OF THE ACT WAS INVOKED ON SOME TRANSACTIONS. THE LD. CIT(A) DELETED THE ADDITION WHICH WAS LATER CONFIRMED BY HON'BLE ITAT. TO CALL SOMETHING DEBATABLE WOULD REQUIRE TO SHOW HOW ON THE SAME SET OF FACTS TWO OPINIONS ARE GENUINELY POSSIBLE. IN THIS CASE WI TH THE ITAT'S ORDER (SUPRA) THE ISSUE ASSUMES FINALITY TILL IT IS OVERTURNED BY A HIGHER AUTHORITY. THUS AS OF NOW THIS ISSUE IS NOT DEBATABLE REGARDING THE APPLICATION, OR OTHERWISE, OF SECTION 68. THUS THE CASE LAW RELIED UPON BY THE LD. AR CANNOT HELP H IM. EVEN OTHERWISE, UNDERSTATEMENT OF INCOME ATTRACTS OF LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. IN VIEW OF THIS REASONING, THE ACTION OF LEARNED ASSESSING OFFICER IS UPHELD. 3 5.1 FROM THE ABOVE PARA FROM THE ORDER OF LEARNED CIT(A), IT IS SEEN THAT I T IS HELD BY CIT(A) THAT THE ADDITION MADE BY THE ASSESSING OFFICER U/S 68 WAS UPHELD BY THE TRIBUNAL IN QUANTUM PROCEEDINGS. WE ALSO FIND THAT IN THE PENALTY ORDER, IT IS NOTED BY THE ASSESSING OFFICER THAT IN RESPONSE TO THE SHOW CAUSE NOTICE, THIS WAS THE ONLY SUBMISSION OF THE ASSESSEE THAT THE PENALTY PROCEEDINGS MAY BE KEPT IN ABEYANCE TILL THE DECISION OF HON'BLE HIGH COURT IN QUANTUM PROCEEDINGS BECAUSE THE ASSESSEE HAS FILED AN APPEAL BEFORE HON'BLE ALLAHABAD HIGH COURT AGAINST THE TRIBUNAL ORDER IN QUANTUM PROCEEDINGS. THE ASSESSING OFFICER HAS OBSERVED IN THE PENALTY ORDER THAT THE REQUEST OF THE ASSESSEE COULD NOT BE ACCEDED TO BECAUSE THE TIME LIMIT FOR COMPLETION OF PENALTY PROCEEDINGS IS WITHIN SIX MONTHS FROM THE END OF THE MONTH IN WHICH T HE ORDER OF THE I.T.A.T. IS RECEIVED. WE ALSO FIND THAT APART FROM THIS SUBMISSION, THERE IS NO SUBMISSION MADE BY THE ASSESSEE BEFORE THE ASSESSING OFFICER IN PENALTY PROCEEDINGS AS TO WHY THE PENALTY IS NOT IMPOSABLE IN THE PRESENT CASE. BEFORE CIT(A) ALSO, THERE IS NO SUCH SUBMISSION AND NONE APPEARED BEFORE US. UNDER THESE FACTS, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF CIT(A). 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 13 / 0 8 /2015 *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR