MEENA JAIN, Jaipur V. ITO, Kota

ITA 442/JPR/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2060 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 29-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJENDRA SINGH JCIT DHK
• Assessee Lawyers: DEVANG GARGIEYA ITP
• Keywords: Opportunity of being heard; Additional evidence; Valuation report; Reassessment proceedings
• Section: 147; 2

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH HKKXPUN] YS[KK LNL; ,OA JH DQY HKKJR] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM AND SHRI KUL BHARAT, JM VK;DJ VIHY LA-@ ITA NO. 442/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2007-08. SMT. MEENA JAIN, D/O LATE SHRI KAILASH CHAND JAIN, JAIN BHAWAN, STATION ROAD, KOTA (RAJ.)-324002. CUKE VS. THE INCOME TAX OFFICER, WARD-2(1), KOTA. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ADFPJ 2098 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI DEVANG GARGIEYA (ITP) JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAJENDRA SINGH (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 14.09.2017. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 15.09.2017 VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT (A)-22, ALWAR DATED 28/04/2017 PERTAINING TO A.Y. 2007-08. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL:- 1. THE IMPUGNED PENALTY ORDER U/S 271(1)(C) OF THE ACT DATED 25.03.2013 IS BAD IN LAW AND ON FACTS OF THE CASE, FOR WANT OF JURISDICTION AND VARIOUS OTHER REASONS AND HENCE, THE SAME KINDLY BE QUASHED. 2. RS. 6,98,330/- : THE LD. CIT(A) ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN CONFIRMING THE IMPUGNED PENALTY U/S 271 (1)(C) OF THE ACT OF RS. 6,98,330/-. THE PENALTY SO IMPOSED & CONFIR MED BEING TOTALLY CONTRARY TO THE PROVISIONS OF LAW AND FACTS KINDLY BE DELETED IN FULL. 3. THAT THE SHOW CAUSE NOTICE ISSUED U/S 274 R/W 2 71(1)(C) OF THE ACT, IS QUITE VAGUE AND DID NOT AT ALL SPECIFY WHICH LIMB O F SECTION 271(1)(C) OF THE ACT, THE PENALTY PROCEEDINGS HAD BEEN INITIATED I.E., WHETHER THE CONCEALMENT PARTICULARS OF INCOME OF FURNISHING OF INACCURATE 2 ITA NO. 442/JP/2017. SMT. MEENA JAIN, KOTA. PARTICULARS OF INCOME. THE IMPUGNED PENALTY BASED ON SUCH A NOTICE BEING CONTRARY TO THE PROVISIONS OF LAW & FACTS KIN DLY BE QUASHED. 4. THE APPELLANT PRAYS YOUR HONOUR INDULGENCES TO ADD, AMEND OR ALTER OF OR ANY OF THE GROUNDS OF THE APPEAL ON OR BEFORE TH E DATE OF HEARING. 2. BRIEFLY STATED THE FACTS ARE THAT, THE CASE OF T HE ASSESSEE WAS REOPENED FOR ASSESSMENT AND THE ASSESSMENT WAS FRAMED UNDER SECT ION 147 READ WITH 148 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS TH E ACT) VIDE ORDER DATED 31/03/2007. WHILE FRAMING THE ASSESSMENT, THE AO AL SO INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT. SUBSEQUENTLY , THE PENALTY WAS IMPOSED VIDE ORDER DATED 25/03/2013. THE ASSESSING OFFICER HAS RECORDED THE FOLLOWINGS FACTS AS UNDER:- 9. THE ASSESSEE FILED HIS WRITTEN REPLY ON 19.02.2013 IN RESPONSE TO SHOW CAUSE NOTICE ISSUED BY THIS OFFICE VIDE NO. ITO/W-2 (1)/KTA/2012- 13/839 DATED 08.02.2013 STATING THEREIN THAT UNDER THE CIRCUMSTANCES IT IS REQUEST YOUR GOOD SELF THAT AS WE HAVE DECLAR ED ALL PARTICULARS AND PAID TAX ACCORDINGLY SHOULD NOT BE CONSIDERED A CON CEALMENT OF INCOME AND IT IS REQUEST TO DROP THE PROCEEDINGS. HOWEVER , AN APPEAL WAS PENDING BEFORE THE HONBLE ITAT, JAIPUR BENCH JAIPU R VIDE ITA NO. 144/JP/2011 AND THEREFORE, IT IS REQUEST YOUR GOOD SELF TO KEPT IN ABEYANCE TILL THE DISPOSAL OF APPEAL. 10. REPLY OF THE ASSESSEE CONSIDERED CAREFULLY BUT FOUND NO SUBSTANCE THEREIN. PENALTY CANNOT BE KEPT IN ABEYANCE LOOKIN G TO THE INSTRUCTION OF THE CENTRAL BOARD OF DIRECT TAXES WHICH ARE THAT PENALTY PROCEEDINGS MUST BE DECIDED WITHIN ONE YEAR FROM TH E END OF F.Y. IN WHICH CIT(A)S ORDER HAS BEEN RECEIVED. BEING A TI ME BARRING CASE AS ON 31.03.2013 PENALTY IS BEING DECIDED ON MERITS . 3 ITA NO. 442/JP/2017. SMT. MEENA JAIN, KOTA. 3. ON APPEAL LD. CIT(A) CONFIRMED THE PENALTY. NOW , THE ASSESSEE IS IN FURTHER APPEAL BEFORE THIS TRIBUNAL. 4. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT ASSESSMENT ORDER DATED 31/3/2007 BY WHICH THE IMPUGNED PENALTY PROCE EDING WERE INITIATED, WAS SET ASIDE BY THE TRIBUNAL IN ITA NO. 1144/JP/2011. THE REFORE, HE SUBMITTED THAT THE PRESENT PROCEEDINGS WOULD NOT SURVIVE AS THE QUANTU M ORDER HAS BEEN SET ASIDE. 5. LD. D/R DID NOT OPPOSE THIS SUBMISSION OF THE LD . COUNSEL FOR THE ASSESSEE. HE CONCEDED THE FACT THAT THE TRIBUNAL HAS SET ASID E THE ASSESSMENT ORDER TO THE FILE OF THE AO FOR AFRESH CONSIDERATION. 6. WE HAVE HEARD THE RIVAL CONTENTION, WE FIND THAT IDENTICAL ISSUE WAS CAME UP BEFORE THE ITAT IN ITA NO. 1144/JP/2011 IN ASSESSEE S OWN CASE HAS HELD AS UNDER:- 5.4 IN REVENUES APPEAL ALSO, THE ACTION OF THE LD . CIT(A) IS CHALLENGED FOR ENTERTAINING THE ADDITIONAL EVIDENCE I.E. VALUATION REPORT WITHOUT FOLLOWING THE DUE PROCESS OF LAW U/R 46A AND GIVING OPPORTUNITY O F BEING HEARD TO THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE PROPOSE D THAT IN THESE CIRCUMSTANCES IF THE BENCH SO FINDS APPROPRIATE, TH E ASSESSEE HAS NO OBJECTION IF THE REASSESSMENT PROCEEDINGS ARE SET A SIDE AND THE MATTER IS RESTORED BACK TO THE FILE OF THE AO TO DECIDE THE S AME AFRESH BY PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD ON THIS ISSUE S. THUS, IN VIEW OF THE FOREGOING FACTS AND CIRCUMSTANCES, IT IS TO BE ASCE RTAINED FROM THE RECORD WHETHER THE REASONS WERE PROVIDED TO THE ASSESSEE A ND ANY OBJECTION IN THIS BEHALF WAS FILED BY THE ASSESEE HAS BEEN DECIDED OR NOT. BESIDES AS THE VALIDITY OF THE REASONS IS TO BE EXAMINED ALONG WIT H THE MERITS. BOTH THE PARTIES ARE AGGRIEVED ON MERITS. BOTH THE PARTIES ARE AGGRIEVED ON MERITS OF PART RETENTION OF THE ADDITION AND PART RELIEF OF T HE ADDITION. IN CONSIDERATION OF THE ENTIRETY OF FACTS AND CIRCUMSTANCES OF THE C ASE, WE FIND MERIT IN THE PROPOSITION OF THE LD. COUNSEL FOR THE ASSESSEE TO SET ASIDE THE MATTER BACK TO THE FILE OF THE AO TO DECIDE THESE ISSUES IN RESPEC T OF THE VALIDITY OF 148 4 ITA NO. 442/JP/2017. SMT. MEENA JAIN, KOTA. PROCEEDINGS AND MERITS OF THE CASE DENOVO AFTER PRO VIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THUS T HE APPEAL OF THE REVENUE AND C.O. OF THE ASSESSEE ARE ALLOWED FOR STATISTICA L PURPOSES. 6.1 IN VIEW OF THE ABOVE, THE PENALTY ORDER IS SET ASIDE AND THE ISSUE OF LEVY OF PENALTY IS RESTORED TO THE FILE OF THE ASSESSING OF FICER TO BE DECIDED AFRESH. GROUNDS RAISED IN THIS APPEAL ARE ALLOWED FOR STATISTICAL P URPOSE. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IN ITA NO. 442/JP/2017 IS ALLOWED FOR STATISTICAL PURPOSE. ORDER IS PRONOUNCED IN THE OPEN COURT ON FRIDAY, THE 15TH DAY OF SEPTEMBER 2017. SD/- SD/- ( HKKXPUN ( DQY HKKJR ) ( BHAGCHAND) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED: 15/09/2017 POOJA/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SMT. MEENA JAIN , KOTA. 2. THE RESPONDENT THE ITO, WARD-2(1), KOTA. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 442/JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR