ITO, JODHPUR V. Shri Jawahar Lal Choudhary, JODHPUR

ITA 479/JODH/2013

• Counselvise Citation: 47923314 RSA 2013
• Duration Of Justice: 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-10-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2003-2004
• Appeal Filed On: 11-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Section: 260A

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENC H : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO.479 & 480/JODH/2013 (A.YS. 2003-04 & 2005-06) ITO, VS. SHRI JAWAHAR LAL CHOUDHARY, WARD-1(4), 62, LAXMI NAGAR VIHAR, JODHPUR. JODHPUR. PAN NO. ACSPC 4682 Q (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI AMIT KOTHARI DEPARTMENT BY : SHRI N.A. JOSHI- D.R. DATE OF HEARING : 24/10/2013. DATE OF PRONOUNCEMENT : 24/10/2013. O R D E R PER N.K.SAINI, A.M THESE TWO APPEALS BY THE DEPARTMENT ARE DIRECTED A GAINST THE SEPARATE ORDERS EACH DATED 14/08/2013 OF LD. CIT (A ), JODHPUR. THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. TH E COMMON GROUNDS HAVE BEEN RAISED IN THESE APPEALS, ARE AS UNDER: 2 1. THE CIT(A) HAS ERRED IN HOLDING THAT THE PENALT Y ORDER HAS BECOME INFRUCTUOUS IGNORING THE FACT THAT THE MATTER HAS N OT BEEN FINALIZED AND APPEAL U/S 260A OF THE DEPARTMENT AGAINST THE O RDER OF THE ITAT IS PENDING BEFORE THE HIGH COURT. 2. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, OR ALT ER ANY OR ALL THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF APPEAL I S FINALLY HEARD FOR DISPOSAL. 2. DURING THE COURSE OF HEARING, LEARNED COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET STATED THAT THE ASSESSMENT ORDER, O N THE BASIS OF WHICH THESE PENALTIES WERE LEVIED BY THE ASSESSING OFFICE R, HAS BEEN QUASHED BY THIS BENCH OF THE ITAT IN ITA NO. 94 & 95/JU/2010 F OR THE A.Y. 2003-04 & 2005-06 RESPECTIVELY VIDE ORDER DATED 30/11/2012 IN ASSESSEES OWN CASE, THEREFORE, THE LEARNED CIT(A) WAS JUSTIFIED IN DELE TING THE PENALTY. 3. LEARNED D.R. ALTHOUGH SUPPORTED THE ORDER OF THE ASSESSING OFFICER, BUT COULD NOT CONTROVERT THE AFORESAID CONTENTION O F THE LEARNED COUNSEL FOR THE ASSESSEE. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PAR TIES. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE ASSES SMENT COMPLETED UNDER SECTION 147/148/143(3) OF THE I.T. ACT, 1961 (HEREI NAFTER REFERRED TO AS ACT, IN SHORT) BY THE ASSESSING OFFICER ON 11/12/ 2009, WHEREIN PENALTY PROCEEDINGS WERE INITIATED AND ULTIMATELY PENALTIES UNDER SECTION 271(1)(C) OF THE ACT WERE LEVIED BY THE ASSESSING O FFICER VIDE SEPARATE PENALTY ORDERS UNDER SECTION 271(1)(C) AND 274 OF T HE ACT PASSED ON 3 27/03/2012. WHEN THE MATTER WAS TAKEN UP BY THE LE ARNED CIT(A), THE ASSESSEE INFORMED VIDE LETTER DATED 08/08/2013 THAT THE QUANTUM APPEALS HAD BEEN DECIDED BY THE ITAT AND THE ASSESS MENT ORDERS WERE QUASHED VIDE ORDER DATED 30/11/2012. LEARNED CIT(A ) AFTER CONSIDERING THE SAID ORDER, ANNULLED THE PENALTY ORDERS. NOW, THE DEPARTMENT IS N APPEAL. 5. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT T HIS BENCH OF THE ITAT VIDE ORDER DATED 30/11/2012 IN ASSESSEES OWN CASE IN ITA NO. 94 & 95/JU/2010, QUASHED THE ASSESSMENT ORDERS PASSED BY THE ASSESSING OFFICER. THE SAID ORDERS WERE THE BASIS FOR LEVYIN G THE IMPUGNED PENALTIES. PRESENTLY, NO ADDITION REMAINS AFTER QU ASHING THE ASSESSMENT ORDERS PASSED BY THE ASSESSING OFFICER. THEREFORE, PENALTY WAS NOT LEVIABLE IN VIEW OF THE RATIO LAID DOWN BY THE HON' BLE SUPREME COURT IN THE CASE OF K.C. BUILDERS AND ANOTHER VS. ACIT REPORTED IN (200 4) 265 ITR 562 , WHEREIN IT HAS BEEN HELD AS UNDER:- WHERE THE ADDITIONS MADE IN THE ASSESSMENT ORDER O N THE BASIS OF WHICH PENALTY FOR CONCEALMENT IS LEVIED, ARE DELETE D, THERE REMAINS NO BASIS AT ALL FOR LEVYING PENALTY FOR CONCEALMENT AN D, THEREFORE, IN SUCH A CASE NO PENALTY CAN SURVIVE AND THE PENALTY IS LI ABLE TO BE CANCELLED. ORDINARILY, PENALTY CANNOT STAND IF THE ASSESSMENT ITSELF IS SET ASIDE. 6 . WE, THEREFORE, CONSIDERING THE TOTALITY OF THE FA CTS AS DISCUSSED HEREINABOVE, DO NOT SEE ANY MERIT IN THESE APPEALS BY THE DEPARTMENT. 4 7. IN THE RESULT, APPEALS ARE DISMISSED. (ORDER PRONOUNCED IN THE COURT ON 24 TH OCTOBER, 2013). SD/- SD/- (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 24 TH OCTOBER , 2013. VR/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD.CIT 4. THE CIT(A) 5. THE D.R ASSISTANT REGISTRAR, ITAT, JODHPUR.