KOYNA GLASS WORKS P.LTD, MUMBAI V. ITO WD 1(2)(2), MUMBAI

ITA 4827/MUM/2011

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2942 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 4 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 23-04-2015
• Assessment Year: 2000-2001
• Appeal Filed On: 16-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: E SHRIDHAR
• Keywords: Non compliance

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI BEFORE SHRI G S PANNU, AM & SHRI SANJAY GARG, JM ITA NO.4827/MUM/2011 / ASSESSMENT YEAR : 2000 - 01 KOYNA GLASS WORKS P LTD., 2/C LAWERENCE & MAYO HOUSE, 276 DR. D N ROAD ROAD, MUMBAI 400 001 PAN AACCK7983K VS ITO WAR D 1 ( 2 )(2), MUMBAI ( /APPELLANT) ( /RESPONDENT) APPELLANT BY : SHRI VIMAL PUNMIYA RESPONDENT BY : SHRI E SHRIDHAR !' / DATE OF HEARING :28.07.2015. !' / DATE OF PRONOUNCEMENT :21.10.2015 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL FILED BY THE ASSESSEE IS DIRECTE D AGAINST THE ORDER OF THE CIT(A) -2, MUMBAI, DATED 03.03.2011 PERTAIN ING TO A.Y. 2000-01. 2. THE ASSESSEE IN THIS APPEAL HAS AGITATED THE LEVY O F PENALTY UNDER SECTION 271B OF THE INCOME TAX ACT FO R NON COMPLIANCE OF THE PROVISIONS OF SECTION 44 OF I.T.ACT BY THE ASSESSIN G OFFICER HOLDING THAT THE ASSESSEE HAD FAILED TO GET HIS ACCOUNTS AUDITED IN RESPECTS OF PREVIOUS YEAR DESPITE ITS TURNOVER OF MORE THAN RS.6 CORES. 2 ITA 4827/MUM/11 KOYNA GLASS PVT. LTD. 3. THE LEARNED AR OF THE ASSESSEE, AT THE OUTSET, H AS STATED THAT IN THIS CASE, THE ASSESSING OFFICER HAS FAILED TO TAKE NECE SSARY PRIOR APPROVAL FROM JOINT COMMISSIONER OF INCOME TAX AS PER THE PROVISI ONS OF SECTION 274 OF THE I.T.ACT. THE LEARNED DR COULD NOT DISPROVE OR D ENY THIS FACT ON THE FILE. THE PENALTY LEVIED BY THE LOWER AUTHORITIES IS THUS BAD IN LAW AS THE SAME BEING HIT BY THE PROVISIONS OF SECTION 274 OF THE A CT AS THE AMOUNT OF PENALTY EXCEEDS TWENTY THOUSAND RUPEES AND THE ASSE SSING OFFICER WAS REQUIRED TO GET THE PRIOR APPROVAL OF THE JOINT COM MISSIONER BEFORE PROCEEDING TO LEVY THE PENALTY UNDER SECTION 271B O F THE ACT. THE CASE IS SQUARELY COULD BY THE ORDER OF THE CO-ORDINATE BENC HES OF THIS TRIBUNAL DATED 20.05.2015 IN THE CASE OF M/S. PRECISION SHEA RS & KNIVES PVT. LTD. FOR A.Y. 2000-01, WHEREIN IT HAS BEEN HELD AS UNDER: 8.1 A PERUSAL OF THE ABOVE SECTION CLEARLY SHOWS T HAT THE AO HAD TO TAKE PERMISSION FROM THE JOINT COMMISSIONER BEFORE LEVYING THE PENALTY AS THE AMOUNT EXCEEDED RS.10,00 0/-. THERE IS NOTHING IN THE ORDER OF THE PENALTY WHICH COULD SHOW THAT THE ITO HAS TAKEN PRIOR PERMISSION FROM THE JOINT COMMI SSIONER. WHEN A STATUTE REQUIRED A THING TO BE DONE IN A CER TAIN MANNER, IT SHALL BE DONE IN THAT MANNER ALONE. WHEN A PART ICULAR AUTHORITY HAS BEEN DESIGNATED TO RECORD HIS SATISFA CTION ON ANY PARTICULAR ISSUE, THEN IT IS THAT AUTHORITY ALONG W HO SHOULD APPLY HIS INDEPENDENT MIND TO RECORD HIS SATISFACTION AND SATISFACTION SO RECORDED SHOULD BE INDEPENDENT AND NOT BORROWED OR DICTATED SATISFACTION. CONSIDERING THE FACTS OF THE CASE, I N THE LIGHT OF THE PROVISIONS OF SEC. 274 OF THE ACT, WE HAVE NO HESIT ATION TO HOLD THAT THE AO HAS LEVIED PENALTY IN CONTRAVENTION TO THE PROVISIONS OF SEC. 274 OF THE ACT AND, THEREFORE, THE ORDER OF THE FIRST 3 ITA 4827/MUM/11 KOYNA GLASS PVT. LTD. APPELLATE AUTHORITY IS LIABLE TO BE SET ASIDE. WE DIRECT THE AO TO DELETE THE PENALTY SO LEVIED. IN VIEW OF THE ABOVE DECISION OF THE TRIBUNAL, THE PENALTY LEVIED BY THE LOWER AUTHORITIES IS NOT SUSTAINABLE IN THE EYE S OF LAW AND THE SAME IS ACCORDINGLY ORDERED TO BE DELETED. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS HER EBY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST OCTOBER, 2015. SD/- SD/- (G S PANNU) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; %& DATED : 21 ST OCTOBER, 2015. SA & !)* +*! /COPY OF THE ORDER FORWARDED TO : 1. /THE APPELLANT. 2. / THE RESPONDENT. 3. ,! ( ) / THE CIT(A), MUMBAI. 4. ,! / CIT 5. *-. ! , , / DR, A BENCH, ITAT, MUMBAI & / BY ORDER, *! ! //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI