Shri Mohan D. Mulchandani, GANDHIDHAM V. The Joint Commissioner of Income Tax (OSD), Central Circle-2, RAJKOT-GUJARAT

ITA 432/RJT/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1261 (ITAT-RAJKOT)
• Duration Of Justice: 2 year(s) 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 11-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: YOGESH PANDEY
• Keywords: Income from undisclosed sources
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH , RAJKOT BEFORE: SHR I S. S. GODARA , JUDICIAL MEMBER AND MANISH BORAD, ACCOUNTANT MEMBER [CONDUCTED THROUGH E - COURT A T AHMEDABAD] SHRI MOHAN D. MULCHANDANI, PROP. OF MARUTI TRANSPORT, HOUSE NO. B - 189, APNANAGAR, GANDHIDHAM PAN: AGLPM88687M (APPELLANT) VS THE JOINT COMMISSIONER OF INCOME TA X (OSD), CENTRAL CIRCLE - 2, RAJKOT (RESPONDENT) REVENUE BY : S H RI YOGESH PANDEY , CIT - D . R. ASSESSEE BY: S H RI VIMAL DESAI , A.R. DATE OF HEARING : 0 2 - 06 - 2 016 DATE OF PRONOUNCEMENT : 03 - 06 - 2 016 / ORDER P ER : S. S. GODARA , JUDICIAL MEMBER : - THESE TWO ASSESSEE S APPEAL S FOR A.Y. 2008 - 09 AND 2009 - 10 , AR ISE FROM A COMMON ORDER OF THE CIT(A) - IV , AHMEDABAD DATED 23 - 09 - 2013 IN APPEAL NO S. CIT(A) - IV/1R/CC - 2/12 - 13 AND CIT(A) - IV/2R/CC - 2/12 - 13 , UPHOL DING PENALTIES OF RS. 14,13,720/ - AND RS. I T A NO S . 432 & 433 / RJT /20 13 A SSESSMENT YEAR 200 8 - 09 & 2009 - 10 I.T.A NO S . 432 & 433 /RJT /20 13 A.Y. 2008 - 0 9 & 2009 - 10 PAGE NO SHRI MOHAN D. MULCHANDANI PROP. OF MARUTI TRANSPORT VS. JCIT 2 2,02,904/ - ; RESPECTIVELY, IN PROCEEDINGS UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2. WE HAVE HEARD BOTH THE PARTIES. A COMBINED PERUSAL OF THESE TWO CASE FILES REVEALS THAT THE ASS ESSING OFFICER PENALIZED THE ASSESSEE AS INDICATED HEREINABOVE BY INVOKING EXPLANATION 5A TO SECTION 271(1)(C) OF THE ACT IN BOTH THE PENALTY ORDERS DATED 13 - 02 - 2012. THERE IS NO DISPUTE THAT THE SEARCH IN QUESTION IS DATED 18 - 03 - 2010. THE ASSESSEE APPEA RS TO HAVE DISCLOSED UNACCOUNTED INCOMES OF RS. 42 LACS AND RS. 80 LACS IN THE TWO IMPUGNED ASSESSMENT YEARS. THE ASSESSING OFFICER FRAMED SECTION 153A ASSESSMENTS ON 05 - 12 - 2011 WITHOUT MAKING ANY ADDITION IN ASSESSEE S INCOME DISCLOSED IN BOTH THE YEARS. 3. WE PROCEED FURTHER AND FIND THAT THE ASSESSING OFFICER INVOKED SECTION 271(1)(C) E XPLANATION 5A IN THE IMPUGNED PENALTY PROCEEDINGS ON THE GROUND THAT THE ASSESSEE S INCOME DISCLOSED DURING SEARCH ATTRACTED THE ABOVE STATED STATUTORY PROVISION. TH E ASSESSEE PREFERRED APPEAL. WE FIN D F R O M THE LOWER APPELLATE ORDER PARA NO. 2 THAT THE CIT(A) FIXED THE CASE FOR HEARING ON 07 - 08 - 2013. THE ASSESSEE FILED FOR ADJOURNMENT. THE CIT(A) FIXED 22 - 08 - 2013 AS THE NEXT DATE OF HEARING. THE ASSESSEE FILED FOR ANOTHER ADJOURNMENT BY POST. THE CIT(A) FIXED THE CASE ON 17 - 09 - 20 13. THE ASSESSEE S AUTHORIZED R EPRESENTATIVE AGAIN APPEARS TO HAVE FILED FOR ONE MORE OPPORTUNITY ON THE GROUND THAT TIME BARRING AUDITS AND FILING OF RETURNS HAD LAST DATE AS 30 TH OF SE P, 2013. THIS MADE THE CI T(A) TO HO LD THE I.T.A NO S . 432 & 433 /RJT /20 13 A.Y. 2008 - 0 9 & 2009 - 10 PAGE NO SHRI MOHAN D. MULCHANDANI PROP. OF MARUTI TRANSPORT VS. JCIT 3 AS SESSEE S ADJOURNMENT PETITION A MISU S E OF THE PROCESS OF T HE LAW. HE WENT ON TO UPHOLD TH E IMPUGNED PENALTIES. THIS LEAVES THE ASSESSEE AGGRIEVED. 4. LEARNED AUTHORIZED R EPRESENTATIVE APPEARING AT ASSESSEE S BEHEST PLEADS IN THE COURSE OF HEARING THAT THE LD. CIT(A) BE DIRECTED TO RE - ADJUDICATE THE LOWER APPEALS ON MERITS IN THE LARGER INTEREST OF JUSTICE. WE FIND FORCE IN THIS SUBMISSIO N. IT APPEARS THAT ASSESSEE S AUTHORIZED R EPRESENTATIVE WAS PRE - OCCUPI ED WITH BARRING AUDITS AND RETURNS SINCE LAST DATE THEREOF WAS APPROACHI NG ON 30 - 09 - 2011. DEPARTMENTAL R EPRESENTATIVE FAILS TO REBUT THIS FACTUAL POSITION . THIS IS A PENALTY MATTER. WE FEEL THAT A HYPER TECHNICAL APPROACH IN SUCH AN INSTANCE MUST BE AVOI DED. WE ACCORDINGLY DIRECT THE CIT(A) TO RE - ADJUDICATE ASSESSEE S ABOVE STATED TWO APPEALS ON MERITS. IT IS MADE CLEAR THAT HE SHALL GRANT THREE EFFECTIVE OPPORTUNITIES TO THE ASSESSEE AS PER LAW. 5. THESE TWO ASSESSEE S APPEALS ARE ALLOWED FOR STATIS TICAL PURPOSES. ORDER PR ONOUNCED IN THE OPEN C OUR T ON 03 - 06 - 201 6 SD/ - SD/ - (MANISH BORAD ) ( S. S. GODARA ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 03 /06 /2016 AK I.T.A NO S . 432 & 433 /RJT /20 13 A.Y. 2008 - 0 9 & 2009 - 10 PAGE NO SHRI MOHAN D. MULCHANDANI PROP. OF MARUTI TRANSPORT VS. JCIT 4 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, RAJKOT