Abhay Kacharulal Abad, Jalna V. ACIT, Cir.1, Aurangabad, Aurangabad

ITA 459/PUN/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 72540 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 05-06-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 07-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE
• Keywords: Principle of natural justice; Opportunity of cross examination

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO.459/PN/2012 (ASST. YEAR: 2006-07) ABHAY KACHARULAL ABAD NAL GALLI, JALNA. PAN: ABAPA9306Q APPELLANT VS. ACIT, CIRCLE-1, AURANGABAD RESPONDENT APPELLANT BY : SMT. DEEPA KHARE RESPONDENT BY : SHRI S.P . WALIMBE DATE OF HEARING: 30.12.2013 DATE OF ORDER : 30.12.2013 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), [SHORT CIT (A)] AURANGABAD, DATED 27.01.2012 FOR A.Y. 2006-07 ON TH E FOLLOWING GROUNDS. 1. LEARNED CIT(A) ERRED ON FACTS AND IN LAW IN CONFIRM ING PENALTY U/S 271D AT RS.15,00,000/- WITHOUT APPRECIA TING THE FACTS AND THE CIRCUMSTANCES OF THE CASE. 2. LEARNED CIT(A) ERRED ON FACTS AND IN LAW CONFIRMING THE PENALITY WITHOUT EXAMINING SHRI K N MUTHA AND WITHO UT AFFORDING OF ANY OPPORTUNITY OF CROSS EXAMINATION T O THE APPELLANT SO AS TO ESTABLISH THE DEFAULT WITHIN THE MEANING OF SEC.269SS. 3. THE APPELLANT PRAYS AND SUBMITS RESPECTFULLY THAT H E LACKED ADEQUATE ADVICE AND PROPER LEGAL ASSISTANCE DUE TO WHICH THERE WAS INADEQUATE REPRESENTATION BEFORE TH E LOWER AUTHORITIES. THE APPELLANT THEREFORE PRAYS THAT OP PORTUNITY MAY KINDLY BE PROVIDED TO THE APPELLANT TO EXPLAIN HIS CASE. 2 4. THE APPELLANT CRAVES LEAVE, ADD, ALTER, SUBSTITUTE OR MODIFY ANY GROUND OF APPEAL AT THE TIME HEARING. 2. THE ASSESSEE IS AN INDIVIDUAL ENGAGED IN THE BUS INESS ACTIVITY. A SEARCH ACTION U/S.132 HAS BEEN CONDUCT ED IN THE CASES OF RUDRANEE GROUP AND SUBSEQUENTLY SURVEY ACT ION U/S.133A OF THE ACT HAS BEEN CONDUCTED IN THE CASE OF SHRI KACHRULAL MUTHA ON 02.02.2006. IN THE SAID ACTION AGAINST SHRI MUTHA, A POST DATED CHEQUE BEARING NO.0088921, DATE D 15.05.2006 OF RS.15,00,000/- WAS FOUND WHICH WAS CL AIMED TO BE GIVEN AGAINST SECURITY OF LOAN OF RS.15,00,000/- OBTAINED BY THE ASSESSEE AS PER HUNDI DATED 15.01.2006 IN WHI CH THE REFERENCE OF THE ABOVE CHEQUE GIVEN AS SECURITY HAV E BEEN MENTIONED. THE CONCERNED ASSESSING OFFICER HAS HEL D THAT THE ASSESSEE HAS ACCEPTED CASH LOAN OF RS.15,00,000/- I N CONTRAVENTION OF PROVISIONS OF SECTION 269SS FROM S HRI K.N. MUTHA AND THEREFORE, HE WAS LIABLE FOR PENALTY U/S. 271D OF I.T. ACT, WHICH WAS CONFIRMED BY THE CIT(A). 2.1 THE STAND OF THE ASSESSEE HAS BEEN THAT THE ASS ESSEE HAS BEEN LEVIED PENALTY U/S.271D ON THE STATEMENT OF ON E SHRI K.N. MUTHA AND STATEMENT OF SHRI K.N. MUTHA SHOULD HAVE BEEN USED AGAINST THE ASSESSEE ONLY AFTER GIVING OPPORTUNITY TO ASSESSEE TO CROSS EXAMINE THE SAME. IN ABSENCE OF THE SAME, IT AMOUNTS TO LACK OF REASONABLE OPPORTUNITY AND IT IS ALSO VIOLA TION OF PRINCIPLES OF NATURAL JUSTICE. PENALTY SHOULD NOT BE LEVIED ON THE BASIS OF EVIDENCE FOUND IN POSSESSION OF THIRD PART Y. FINDING FORCE IN THE CONTENTION OF THE LEARNED AUTHORIZED R EPRESENTATIVE, WE RESTORE THIS ISSUE TO THE ASSESSING OFFICER WITH A DIRECTION TO DECIDE THE SAME AS PER FACT AND LAW AFTER PROVIDING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESS EE WILL BE AT LIBERTY TO CROSS EXAMINE THE SAID SHRI K.N. MUTHA W HOSE STATEMENT HAS BEEN MADE BASIS FOR LEVYING PENALTY U /S.271D. 3 SINCE, WE ARE RESTORING THE MATTER ON PRELIMINARY I SSUE WE ARE REFRAINING FROM COMMENTING ON THE MERIT OF THE ISSU E AT HAND. 3. IN THE RESULT, APPEAL FILED BY ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES AS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT ON THIS THE 30 TH DAY OF DECEMBER, 2013. SD/- SD/- (R.K. PANDA) (SHAILENDRA KUMAR YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED: 30 TH DECEMBER 2013 GCVSR COPY TO:- 1) ASSESSEE 2) DEPARTMENT 3) THE CIT(A), AURANGABAD 4) THE CIT, AURANGABAD 4) THE DR, B BENCH, I.T.A.T., PUNE. 5) GUARD FILE BY ORDER //TRUE COPY// SENIOR PRIVATE SECRETARY, I.T.A.T., PUNE