SADANAND ANANT GAONKAR, THANE V. ITO 26(2)(3), MUMBAI

ITA 4377/MUM/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62169 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-04-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2002-2003
• Appeal Filed On: 30-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P ARTH SARATHI NAIK

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E MUMBAI BEFORE SHRI P.M. JAGTAP (ACCOUNTANT MEMBER) AND SHRI VIVEK VARMA (JUDICIAL MEMBER) ITA NOS. 4377 TO 4379/MUM/2011 ASSESSMENT YEARS-2002-03 TO 2004-05 SHRI SADANAND ANANT GAONKAR, A-401, BHARAT JYOT CHS, THAKURWADI LANE, DOMBIVLI (W), THANE-421 202 PAN-AADPG 7420M VS. THE ITO 26(2)(3), R. NO. 16, 3 RD FLOOR, B WING MITTAL COURT, NARIMAN POINT, MUMBAI-400 021 (APPELLANT) (RESPONDENT) APPELLANT BY: NONE RESPONDENT BY: SHRI PARTHSARATHI NAIK DATE OF HEARING :2.04.2012 DATE OF PRONOUNCEMENT:10.4.2012 O R D E R PER VIVEK VARMA, JM : THESE THREE APPEALS HAVE BEEN FILED BY THE ASSESSE E AGAINST ORDER FOR RECTIFICATION UNDER SECTION 154, PASSED BY CIT(A)-2 8, MUMBAI, DATED 02/03/2011. 2. IT IS NOTICED THAT FOR ASSESSMENT YEARS 2002-03, 2003-04 AND 2004-05 THE AO HAS LEVIED PENALTY UNDER SECTION 271(1)(C) O N THE ASSESSEE AT RS. 7,941/-, RS. 13,326/- AND RS. 35,806/- RESPECTIVELY . 3. THE ASSESSEE CARRIED THE ISSUE BEFORE THE CIT(A) , WHO SUSTAINED THE PENALTY CITING THE DECISION OF DHARMENDRA TEXTILE, REPORTED IN 306 ITR 277, WHEREIN THE HONBLE SUPREME COURT OF INDIA HELD THAT PENALTY IS A CIVIL LIABILITY, THEREFORE, IT IS LEVIABLE. ITA NOS. 4377 TO 4379/M/11 2 4. THE ASSESSEE PREFERRED TO RECTIFY THE ORDER OF C IT(A), BY FILING A RECTIFICATION APPLICATION UNDER SECTION 154, WHICH WAS DISMISSED ON ACCOUNT OF NON PROSECUTION. THE ASSESSEE ONCE AGAIN FILED ANOT HER APPLICATION FOR RECTIFICATION, EVEN THIS WAS DISMISSED ON ACCOUNT O F NON PROSECUTION. AGAINST THIS ORDER OF DISMISSAL, THE ASSESSEE IS NOW BEFORE THE ITAT. 5. BEFORE US, THE ASSESSEE HAS NOT BEEN REPRESENTED EITHER BY SELF OR THROUGH AN AUTHORISED REPRESENTATIVE. 6. ON GOING THROUGH THE ORDERS, I.E. THE ORIGINAL O RDER OF THE AO LEVYING PENALTY AND CIT(A) SUSTAINING THE PENALTY, WE FIND THAT THE PENALTY WAS SUSTAINED PRIMARILY TAKING INTO ACCOUNT THE DECISIO N OF HONBLE SUPREME COURT OF INDIA IN THE CASE OF DHARMENDRA TEXTILE. 7. THIS DECISION, NOW IS ONLY OF ACADEMIC INTEREST, AS LATER DECISIONS IN THE CASES OF CIT V/S ATUL MOHAN BINDAL, REPORTED IN 317 ITR 1 AND IN CIT V/S RELIANCE PETROPRODUCTS (P) LTD. REPORTED IN 322 ITR 158 HAVE PUT THE ISSUE OF LEVY OF PENALTY, AS IT WAS PRIOR TO DHARMENDRA TEXT ILE. 8. IN THE INTERESTS OF JUSTICE, DESPITE THE FACT THA T THERE IS NO CO-OPERATION FROM THE SIDE OF THE ASSESSEE AT ANY STAGE OF THE P ROCEEDINGS, WE RESTORE THE CASE TO THE FILE OF THE CIT(A) TO ONCE AGAIN GIVE A N OPPORTUNITY TO THE ASSESSEE TO PLEAD HIS CASE, IF HE SO DESIRES, IN AC CORDANCE WITH LAW. 9. IN THE RESULT, ALL THE APPEALS FILED BY ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 10 TH APRIL, 2012 SD/- SD/- (P.M. JAGTAP) (VIVEK VARMA ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 10 TH APRIL, 2012 RJ ITA NOS. 4377 TO 4379/M/11 3 C OPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR E BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI