K.Balasubramaniam, Attur V. ITO, Salem

ITA 473/CHNY/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 8986 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2003-2004
• Appeal Filed On: 09-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LAKSHMINARAYANAN
• Assessee Lawyers: S SRIDHAR

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : CHENNAI . . . , . !' , # $ % [ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ] ./ I.T.A.NO.473/MDS/2015 / ASSESSMENT YEAR : 2003-04 SHRI K. BALASUBRAMANIAM NO.10, VOC NAGAR, PUDUPET ATTUR 636 141 VS. THE INCOME TAX OFFICER WARD II(3) SALEM [PAN AHPPB 9004 K] ( &' / APPELLANT) ( ()&' /RESPONDENT) / APPELLANT BY : SHRI S. SRIDHAR, ADVOCATE /RESPONDENT BY : SHRI LAKSHMINARAYANAN, JCIT / DATE OF HEARING : 2 4 - 05 - 2016 ! / DATE OF PRONOUNCEMENT : 23 - 0 6 - 2016 / O R D E R PER N.R.S.GANESAN, JUDICIAL MEMBER THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS), SALEM, D ATED 30.12.2014 CONFIRMING THE PENALTY LEVIED BY THE ASSESSING OFFI CER U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961, FOR ASSESSMENT YEAR 20 03-04. 2. SHRI S. SRIDHAR, LD. COUNSEL FOR THE ASSESSEE SUBMI TTED THAT THE ASSESSING OFFICER LEVIED PENALTY U/S 271(1)(C) OF THE ACT IN RESPECT OF THE QUANTUM ADDITION MADE BY THE ASSESSING OFFIC ER. THE ASSESSEE ITA NO.473/15 :- 2 -: HAS FILED APPEAL BEFORE THIS TRIBUNAL. THIS TRIBUN AL BY AN ORDER DATED 26.7.2012 IN I.T.A.NO.637/MDS/2011 GRANTED PARTIAL RELIEF AGAINST WHICH THE ASSESSEE FILED APPEAL BEFORE THE MADRA S HIGH COURT AND THE SAME IS PENDING FOR DISPOSAL. IN THE MEANTIME, MISCELLANEOUS PETITIONS WERE ALSO FILED BEFORE THE CIT(A) AND BE FORE THIS TRIBUNAL IN RESPECT OF THE QUANTUM ADDITION. HOWEVER, BOTH THE MISCELLANEOUS PETITIONS FILED WERE DISMISSED AGAINST WHICH THE A SSESSEE HAS FILED APPEALS BEFORE THE HIGH COURT. BOTH THE APPEALS FI LED AGAINST THE ORDERS OF THIS TRIBUNAL IN THE APPEAL AND THE MISCE LLANEOUS PETITION ARE PENDING FOR FINAL DISPOSAL BEFORE THE HIGH COUR T. THEREFORE, ACCORDING TO THE LD. COUNSEL, THE MATTER IS PENDING ADJUDICATION BEFORE THE HIGH COURT IN RESPECT OF THE QUANTUM ADDITION M ADE BY THE ASSESSING OFFICER. REFERRING TO THE PENALTY ORDER, THE LD. COUNSEL SUBMITTED THAT THE ADDITION WAS MADE ON THE BASIS O F THE STATEMENT SAID TO BE RECORDED FROM THE ASSESSEE. ACCORDING TO THE LD. COUNSEL, THE STATEMENT WAS SUBSEQUENTLY RETRACTED. HOWEVER, THE ASSESSING OFFICER REFUSED TO ACCEPT THE RETRACTED STATEMENT. REFERRING TO THE ORDER OF THE CIT(A), THE LD. COUNSEL SUBMITTED THAT THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE ON THE GROUND THAT NONE APPEARED BEFORE HIM. ACCORDING TO THE LD. COUNSEL, AN OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE TO FILE THE RELEVANT MATERIAL IN THE PENALTY PROCEEDINGS. ITA NO.473/15 :- 3 -: 3. ON THE CONTRARY, SHRI LAKSHMINARAYANAN, LD. DEPARTM ENTAL REPRESENTATIVE SUBMITTED THAT THE ADDITION MADE BY THE ASSESSING OFFICER WAS CONFIRMED BY THIS TRIBUNAL AND MERELY B ECAUSE THE APPEAL FIELD BY THE ASSESSEE AGAINST THE ORDER OF THIS TR IBUNAL IS PENDING FOR DISPOSAL BEFORE THE HIGH COURT CANNOT BE A REASON F OR DELETING THE PENALTY MADE BY THE ASSESSING OFFICER. REFERRING T O THE CONTENTION OF THE ASSESSEE THAT THE CIT(A) HAS NOT DISPOSED OF T HE APPEAL ON MERIT AND THEREFORE, AN OPPORTUNITY MAY BE GIVEN TO THE A SSESSEE, THE LD. DR SUBMITTED THAT IF THE TRIBUNAL FEELS THAT AN OPPORT UNITY NEEDS TO BE GIVEN TO THE ASSESSEE, HE MAY NOT HAVE ANY SERIOU S OBJECTION FOR REMITTING THE MATTER BACK TO THE FILE OF THE CIT(A) . 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE CIT(A), AFTER REFERRING TO THE PENDENCY OF THE APPEAL BEFORE THE HIGH COURT AGAINST THE QUANTUM ADDITION AND THE ORDER PASSED BY THIS T RIBUNAL IN MISCELLANEOUS PETITION FOUND THAT NONE APPEARED BEF ORE HIM WHENEVER THE APPEAL WAS POSTED FOR HEARING. FROM THE ORDER OF THE CIT(A) IT APPEARS THAT THE APPEAL WAS POSTED ON EIGHT DAYS. ON ALL THE EIGHT DAYS NONE APPEARED BEFORE HIM. THEREFORE, THE CIT( A) FOUND THAT THE ASSESSEE IS NOT INTERESTED IN PROSECUTING THE APPEA L. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE POWERS OF THE CI T(A) ARE COTERMINOUS WITH THE ASSESSING OFFICER. THEREFORE, MERELY BECAUSE ITA NO.473/15 :- 4 -: THE ASSESSEE HAS NOT APPEARED BEFORE THE CIT(A) TH AT CANNOT BE A REASON TO CONFIRM THE PENALTY LEVIED BY THE ASSESSI NG OFFICER U/S 271(1)(C) OF THE ACT. THE PENALTY PROCEEDING IS IN DEPENDENT AND SEPARATE PROCEEDING, THEREFORE, THE CIT(A) HAS TO R EAPPRECIATE THE MATERIAL AVAILABLE ON RECORD IN THE PENALTY PROCEED ING. THE IMPUGNED ORDER OF THE CIT(A) DOES NOT INDICATE ANY REAPPRECI ATION OF THE MATERIAL AVAILABLE ON RECORD. THEREFORE, THIS TRIB UNAL IS OF THE CONSIDERED OPINION THAT THE MATTER NEEDS TO BE RECO NSIDERED BY THE CIT(A). ACCORDINGLY, THE ORDERS OF THE LOWER AUTHO RITIES ARE SET ASIDE AND THE ISSUE OF PENALTY U/S 271(1)(C) OF THE ACT IS REMITTED BACK TO THE FILE OF THE CIT(A). THE CIT(A) SHALL RECONSID ER THE ISSUE AFRESH IN THE LIGHT OF THE MATERIAL AVAILABLE ON RECORD AND D ECIDE THE SAME IN ACCORDANCE WITH LAW AFTER GIVING A REASONABLE OPPOR TUNITY TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD JUNE, 2016, AT CHENNAI. SD/- SD/- ( . !' ) (A. MOHAN ALANKAMONY) # / ACCOUNTANT MEMBER ( . . . ' ) (N.R.S. GANESAN) / JUDICIAL MEMBER #$ / CHENNAI %& / DATED: 23 RD JUNE, 2016 RD ITA NO.473/15 :- 5 -: &' ()*) / COPY TO: 1 . / APPELLANT 4. + / CIT 2. / RESPONDENT 5. ),- . / DR 3. +/' / CIT(A) 6. -01 / GF