The Orissa State Police Housing & Welfare Corporation, Bhubaneswar V. ACIT, Bhubaneswar

ITA 456/CTK/2012

• Counselvise Citation: 45622114 RSA 2012
• Duration Of Justice: 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2012
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 17-09-2012
• Court: TRIBUNAL
• Department Lawyers: PARAMITA TRIPATHY
• Assessee Lawyers: D K MOHANTYC R JENA ARS
• Keywords: Application of stay; Condonation of delay; Reassessment proceedings
• Section: 147; 234B

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK ( ) BEFORE . . , , HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER. /AND . . . , S HRI K.S.S.PRASAD RAO, JUDICIAL MEMBER / I.T.A.NO S . 456 AND 457/CTK/2012 STAY PETITION NOS.30 AND 31/CTK/2012 / ASSESSMENT YEARS 2004 - 05 AND 2005 - 06 M/S.THE ODISHA STATE POLICE HOUSING & WELFARE CORPORATION, BHOI NAGAR, BHU BANESWAR 751 022 PAN: AABCTR 7853 N - - - VERSUS - ASST.COMMISSIONER OF INCOME - TAX, CIRCLE 2(2), AYAKAR BHAWAN,BHUBANESWAR. ( /APPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI D.K.MOHANTY/C.R.JENA, ARS / FOR THE RESPONDENT: / S MT. PARAMITA TRIPATHY, CIT - DR / DATE OF HEARING: 25.09.2012 / DATE OF PRONOUNCEMENT: 28.09.2012 / ORDER . . , , SHRI K.K.GUPTA, ACCOUNTANT MEMBER. THESE APPEALS HAVE BEEN TAKEN UP IN PURSUANCE TO STAY PETITIONS HAVING BEEN FILED WHEN THE ASSESSEE PETITNER PRAYS FOR STAY OF DEMAND OF PENALTY LEVIED BY THE ASSESSING OFFICER UNDER THE PROVISIONS OF SECTION 271(1)(C) AND SECTION 271(1)(B) OF THE INCOME - T AX ACT,12961 FOR THE AYS 2004 - 05 AND 2005 - 06. 2. THE APPEALS BEFORE THE LEARNED CIT(A) WERE DISPOSED OF BY HIM IN A COMMON ORDER DT.29.8.2012 DISMISSING THE ASSESSEES CONTENTION ON CONSIDERING THE CONDONATION PETITIONS FILED FOR DELAY OF 181 DAYS AND 33 DAYS RESPECTIVELY WHICH ALONE HAS BEEN CONSIDERED BY THE LEARNED CIT(A) IN DISMISSING THE APPEALS AS UN - ADMITTED. 3. THE LEARNED COUNSEL FOR THE ASSESSEE INITIATING HIS ARGUMENTS SUBMITTED THAT THE STAY PETITIONS HAVE BEEN PREFERRED BY THE ASSESSEE I.T.A.NOS. 456 AND 457/CTK/2012 STAY PETITION NOS.30 AND 31/CTK/2012 2 PETITIO NER ON THE SOLE GROUND AS FOR NO CONCEALMENT OF INCOME HAS BEEN FOUND BY THE ASSESSING OFFICER TO PASS THE ORDER U/S.143(3)/147 WHEN THE UNDISPUTED TAX HAS BEEN PAID BY THE ASSESSEE WHICH IS THE SOLE CONSIDERATION FOR INVOKING THE PROVISIONS OF SECTION 271 (1)(C) AND SECTION 271(1)(B). ON APPEAL BELATEDLY FILED BY THE ASSESSEE, THE LEARNED CIT(A) CHOSE TO ADJUDICATE THE ISSUE BY WRITING 11 PAGES ON THE CONDONATION PETITION HAVING FILED THE APPEAL BELATEDLY , WITHOUT A WHISPER ON MERITS OF THE ASSESSEES CASE INSOFAR AS A COMMON ORDER HAS BEEN PASSED ALONG WITH THE APPEAL ON ORDER U/S.143(3/147. DEMANDS HAVE BEEN RAISED BY WAY OF REGULAR DEMAND REQUIRING THE ASSESSEE TO PAY THE INTEREST U/S.234A, 234B AND 234C WHEN THE PROVISIONS OF SECTION 147 HAVE NOT BEEN S ATISFIED MAKING THE LEGALITY OF THE REASSESSMENT PROCEEDINGS VOID AB INITIO . THE LEARNED COUNSEL FOR THE ASSESSEE VEHEMENTLY ARGUED THAT DEMANDS ARE BEING PERSUADED BY WAY OF A COMMON ORDER OF THE LEARNED CIT(A) WHICH INADVERTENTLY HAS ALSO NOT CONSIDERED THE MERIT ADDITION WHICH WERE NOT TO BE. PROCEEDINGS U/S.147 ALONE CANNOT BE SUBJECT MATTER OF INVOKING PROVISIONS OF SECTION 271(1(B) INSOFAR AS THEY BECOME CONTRADICTORY TO THE FACT FINDING BY THE ASSESSING AUTHORITIES CONTRADICTS THE LEVY OF PENALTY SIM ULTANEOUSLY. THE ASSESSEE WAS CONSTRAINT IN VIEW OF THE FACT THAT THE ASSESSEE IS A 100% GOVERNMENT OF ODISHA UNDERTAKING AND SUBJECTED TO GOVERNMENT AUDIT WHEN THE PROVISIONAL FINANCIAL STATEMENTS WERE REGULARIZED BY WAY OF REVALIDATING THE ASSESSMENT U/S .147. THE LEARNED CIT(A) UNFORTUNATELY CHOSE TO RELATE HIS FINDING ON THE FUNCTIONING OF THE ASSESSEE BEING A GOVERNMENT OF ODISHA UNDERTAKING FOR HOLDING RESPONSIBILITY OF ATTENDING TO THE NOTICES HAS NOT BEEN BROUGHT ON RECORD BY THE ASSESSING OFFICER WH ICH THE LEARNED CIT(A) HAS TAKE NOTE OF. I.T.A.NOS. 456 AND 457/CTK/2012 STAY PETITION NOS.30 AND 31/CTK/2012 3 3.1. CONCLUDING HIS ARGUMENT, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE PENALTIES SO LEVIED BY THE ASSESSING OFFICER DO NOT ARISE OUT OF THE COMMON ORDER OF THE LEARNED CIT(A) WHEN THE QUANTUM BEFORE T HE CIT(A) HAVE ALSO BEEN PREFERRED BY WAY OF SEPARATE APPEALS BEFORE THE TRIBUNAL. THEREFORE, HE PRAYED THAT THE BENEFIT OF BELATEDLY FILING THE APPEALS BEFORE THE LEARNED CIT(A) MAY KINDLY BE CONDONED AND RESTORED TO THE LEARNED CIT(A) INSOFAR AS THE QUAN TUM APPEALS HAVE TO BE ADJUDICATED BY THE LEARNED CIT(A) PRIOR TO CONFIRMING THE PENALTIES SO LEVIED BY THE ASSESSING OFFICER. 4. THE LEARNED CIT - DR OPPOSED THE CONTENTIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE INSOFAR AS THERE CANNOT BE PETITION FOR ST AY OF DEMAND OF PENALTIES. THE LEARNED COUNSELS PRAYER MAY BE CONSIDERED BY THE TRIBUNAL INSOFAR AS SHE SUPPORTED THE ORDER OF THE ASSESSING OFFICER FOR HER PART OF SUBMISSIONS WHICH WAS NOT CONSIDERED BY THE LEARNED CIT(A) WHO CHOSE TO DISMISS THE APPEAL S OF THE ASSESSEE ON THE LEVY OF PENALTY U/S.271(1)(C) AND SECTION 271(1)(B) BY REASONING OUT THAT THE PETITION FOR CONDONATION OF DELAY FILED BEFORE HIM WAS NOT HAVING SUFFICIENT CAUSE. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE IMPUGNED ORDER S OF THE AUTHORITIES BELOW AND THE MATERIAL AVAILABLE ON RECORD. ON CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE INCLINED TO HOLD THAT THE PRAYER OF THE LEARNED COUNSEL FOR THE ASSESSEE HAS TO BE ACCEPTED. IT IS NOT THE CASE OF THE LEAR NED COUNSEL FOR THE ASSESSEE TO TAKE PART DECISION ON THE PENALTY SO LEVIED BY THE ASSESSING OFFICER WHICH UNFORTUNATELY HAS NOT BEEN CONSIDERED BY THE LEARNED CIT(A) ON MERITS AS HE CHOSE TO DISMISS THE APPEALS AS UN - ADMITTED BY HOLDING THE ASSESSEE HAVI NG I.T.A.NOS. 456 AND 457/CTK/2012 STAY PETITION NOS.30 AND 31/CTK/2012 4 NO BONAFIDE SUFFICIENT CASE FOR BELATEDLY FILING OF THE APPEALS BY 181 AND 33 DAYS RESPECTIVELY . THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE BEING A GOVERNMENT OF ODISHA UNDERTAKING WHOLLY OWNED BY THE GOVERNMENT IS GOVERNED AND MAN AGED BY EX - OFFICIO PERSONS OF THE GOVERNMENT CANNOT BE FAULTED WITH BY PINNING RESPONSIBILITY ON A N INDIVIDUAL WHICH THE LEARNED CIT(A) SUO MOTO BROUGHT ON RECORD WITHOUT ENTERING INTO REBUTTAL FOR DISCUSSION BY THE GOVERNMENT OF ODISHA UNDERTAKING. THIS U NILATERAL CONSIDERATION BY THE LEARNED CIT(A) WAS UNJUSTIFIED TO THE EXTENT THAT HE HAS POINTED OUT NAMES FOR SUCH DEFAULT OF FILING THE APPEALS BELATEDLY. WE ARE UNABLE TO SATISFY OURSELVES TO THIS PROPOSITION FOR THE SIMPLE REASON THAT THE APPEALS ARE TO BE CONSIDERED TO RENDER JUSTICE AND NOT TO FIND FAULT IN THE FUNCTIONING OF THE ASSESSEE FOR SEEKING JUSTICE. ON THE FACTS AND CIRCUMSTANCES AS NOTED BY THE LEARNED CIT(A), WE CONDONE THE DELAY OF 181 AND 33 DAYS RESPECTIVELY IN FILING THE APPEALS BEFORE HIM AND RESTORE THE APPEALS TO HIS FILE FOR FRESH ADJUDICATION UNDER THE PROVISIONS OF THE I.T.ACT AS PER THE FACTS BROUGHT ON RECORD BY THE ASSESSING OFFICER. 6. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. 7. SINCE WE HAVE DISPOSED OF THE APPEALS AS ABOVE, THE STAY PETITIONS FILED BY THE ASSESSEE BECOMES INFRUCTUOUS AND THE SAME ARE DISMISSED AS SUCH. SD/ - SD/ - ( . . . ) , (K.S.S.PRASAD RAO), JUDICIAL MEMBER ( . . ) , , (K.K.GUPTA), ACCOUNTANT MEMBER. ( ) DATE: 28.09.2012 ( ), I.T.A.NOS. 456 AND 457/CTK/2012 STAY PETITION NOS.30 AND 31/CTK/2012 5 - COPY OF THE ORDER FORWARDED TO: 1 . / THE A PPELLANT : M/S.THE ODISHA STATE POLICE HOUSING & WELFARE CORPORATION, BHOI NAGAR, BHUBANESWAR 751 022 2 / THE RESPONDENT: ASST.COMMISSIONER OF INCOME - TAX, CIRCLE 2(2), AYAKAR BHAWAN,BHUBANESWAR. 3 . / THE CIT, 4 . ( ) / THE CIT(A), 5 . / DR, CUTTACK BENCH 6 . GUARD FILE . / TRUE COPY, / BY ORDER, APPENDIX XVII SEAL TO B E AFFIXED ON THE ORDER SHEET BY THE SR. P.S./P.S. AFTER DICTATION IS GIVEN 1. DATE OF DICTATION 26.09.2012 . 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 27.09.2012 OTHER MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.... 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S . 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER ................ 9. DATE OF DESPATCH OF THE ORDER .. (H.K.PADHEE), SENIOR.PRIVATE SECRETARY.