ATUL C. VYAS, MUMBAI V. DCIT CC 31, MUMBAI

ITA 5112/MUM/2010

• Counselvise Citation: 511219914 RSA 2010
• Duration Of Justice: 1 year(s) 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 1990-1991
• Appeal Filed On: 21-06-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P K B MENON
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI RAJENDRA SINGH, ACCOUNTANT MEMBER ITA. NO. 5112/MUM/2010 ASSESSMENT YEAR 1990-1991 SHRI ATUL C.VYAS MUMBAI. PAN AABPV5606N VS. DCIT, CC 31 MUMBAI. (APPELLANT) (RESPONDENT) FOR APPELLANT : SHRI VIJAY MEHTA FOR RESPONDENT : SHRI PKB MENON DATE OF HEARING : 21-09-2011 DATE OF PRONOUNCEMENT : 28-09-2011 ORDER PER D.MANMOHAN, V.P. 1. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A)-40, MUMBAI AND IT PERTAINS TO THE ASSESSMENT YEAR 1990-1991. 2. PENALTY OF RS.6,20,000/- LEVIED BY THE ASSESSIN G OFFICER WAS CHALLENGED BEFORE THE CIT(A) BUT HAVING REGARD TO THE FACT THAT AN APPEAL WAS FILED AFTER A LAPSE OF MORE THAN 5 YEARS , ON THE LIMITED GROUND OF LIMITATION, THE APPEAL WAS NOT ADMITTED B Y THE LEARNED CIT(A) AND THUS ASSESSEE IS IN APPEAL BEFORE US. 3. LEARNED COUNSEL, APPEARING ON BEHALF OF THE ASS ESSEE, SUBMITTED THAT HAVING REGARD TO PECULIAR SET OF FAC TS HE CAN STRAIN HIMSELF TO LABORIOUSLY EXPLAIN THE PECULIAR FACTS W HICH CULMINATED INTO A SUBSTANTIAL DELAY IN FILING AN APPEAL WHEREBY THE TRIBUNAL MAY CONSIDER THE REQUEST FOR DIRECTING THE CIT(A) TO RE CONSIDER THE MATTER ON MERITS BUT IN STRICT SENSE IT IS NOT WARRANTED A ND THEREFORE, HE DOES 2 NOT WANT TO PURSUE THE APPEAL. IN THIS REGARD, HE H AS PRESENTED THE FOLLOWING FACTS. 4. ASSESSMENT WAS COMPLETED ON 29-3-1993 BY DETERM INING TOTAL INCOME AT RS.28,19,250/- WHICH WAS PARTLY ALL OWED BY THE CIT(A) AND BASED UPON THE ORDER PASSED BY THE CIT(A) ASSES SING OFFICER PROCEEDED TO LEVY PENALTY AND AFTER GIVING THE ASSE SSEE AN OPPORTUNITY OF BEING HEARD HE DETERMINED THE PENALTY LEVIABLE A T RS.6,26,000/-, REFERABLE TO THE ADDITIONS SUSTAINED BY THE CIT(A). 5. AS THE MATTER STOOD THUS, REVENUE PREFERRED AN APPEAL BEFORE THE APPELLATE TRIBUNAL AND A CROSS-APPEAL WA S FILED BY THE ASSESSEE CHALLENGING THE ORDER PASSED BY THE CIT(A) . THESE TWO APPEALS WERE DISPOSED OF, BY SEPARATE ORDERS, BY TH E TRIBUNAL. VIDE ORDER DATED 27-12-2004 THE APPEAL FILED BY THE DEPA RTMENT WAS DISMISSED WHEREAS THE APPEAL FILED BY THE ASSESSEE, NUMBERED AS ITA. NO. 5602/MUM/1995, WAS DISPOSED OF BY A SEPARATE OR DER DATED 24/9/2008 WHEREIN THE ISSUE RAISED BY THE ASSESSEE WAS SET ASIDE TO THE FILE OF THE ASSESSING OFFICER TO RE-ADJUDICATE THE SAME AFTER GIVING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. CONSEQU ENT THERETO, THE ASSESSING OFFICER PASSED AN ORDER UNDER SECTION 143 (3) READ WITH SECTION 254 WHEREIN THE TOTAL INCOME WAS FINALLY DE TERMINED AT RS.3,17,770/-. IF ONE GOES BY THE CONSEQUENTIAL ORD ER THE PENALTY LEVIABLE WOULD GET SUBSTANTIALLY REDUCED SINCE PENA LTY IS LINKED TO THE QUANTUM OF ADDITION SUSTAINED AND FINALLY COMPUTED BY THE ASSESSING OFFICER. HOWEVER, IT APPEARS THAT DESPITE A FRESH N OTICE ISSUED BY THE ASSESSING OFFICER UNDER SECTION 271 (1) (C) READ WI TH SECTION 274 OF THE ACT, THE ASSESSING OFFICER APPEARS TO HAVE NOT PASS ED A FRESH PENALTY ORDER. IN THE MEAN TIME, PENALTY LEVIED CONSEQUENT TO THE CIT(A) ORDER HAD ALMOST ATTAINED FINALITY ON ACCOUNT OF THE FACT THAT THERE WAS A DELAY IN FILING THE APPEAL BEFORE THE CIT(A) WHICH HAS RESULTED IN DISMISSAL OF THE APPEAL ON THE GROUND OF LIMITATION . LEARNED DR SUBMITTED THAT SUBSTANTIAL DELAY IN FILING AN APPEA L BEFORE CIT(A) WAS NOT EXPLAINED AND HENCE CIT(A) WAS JUSTIFIED IN DIS MISSING THE APPEAL. 3 6. A PLAIN LOOK AT THE FACTS INDICATE THAT THE ASS ESSING OFFICER IN THE ORDINARY COURSE OF DISCHARGE OF HIS DUTIES SHOULD NOT INSIST UPON PAYMENT OF RS.6,26,000/- REFERABLE TO T HE PENALTY LEVIED BY AN ORDER DATED 20-9-2004 AND SHOULD HAVE PASSED A FRESH PENALTY ORDER PURSUANT TO THE NOTICE DATED 30-11-2009 ISSUE D BY HIM SO THAT THE OFFICER CONCERNED NEED NOT GO BY TECHNICALITIES , WHILE COLLECTING THE PENALTY AMOUNT REFERRABLE TO THE ORDER DATED 20 -9-2004. 7. HAVING REGARD TO THE SUBSEQUENT EVENTS THAT HAV E TAKEN PLACE WE ARE OF THE VIEW THAT IT WOULD BE AN ACADEM IC EXERCISE FOR THIS BENCH TO GO INTO THE ISSUE AS TO WHAT WERE THE REAS ONS THAT CULMINATED INTO DELAY IN FILING THE APPEAL BEFORE T HE CIT(A) SO AS TO CONSIDER AS TO WHETHER APPEAL DESERVES TO BE RECONS IDERED AT THE STAGE OF CIT(A). IN FACT, LEARNED COUNSEL, APPEARING ON B EHALF OF THE ASSESSEE, WAS FAIR ENOUGH TO CONCEDE THAT THE APPEAL FILED BE FORE US WOULD EVEN OTHERWISE BECOME INFRUCTUOUS AND IT IS OF ACADEMIC IMPORTANCE ONLY. 8. HAVING REGARD TO THE CIRCUMSTANCES OF THE CASE AND IN VIEW OF THE FACT THAT THERE IS A SUBSTANTIAL DELAY IN FILING AN APPEAL BEFORE THE CIT(A) WE DISMISS THE APPEAL FILED BY TH E ASSESSEE IN LIMINI. ORDER PRONOUNCED IN THE OPEN COURT, ON THIS THE 2 8 TH DAY OF SEPTEMBER, 2011. SD/- SD/- (RAJENDRA SINGH) (D.MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATE 28 TH SEPTEMBER, 2011 VBP/- 4 COPY TO 1. SHRI ATUL C.VYAS, 16, HARDAYAL SOCIETY, 3, GAROD IA NAGAR, GHATKOPAR (E), MUMBAI. PAN AABPV5606N 2. DCIT, CC 31, MUMBAI. 3. CIT(A)-40, MUMBAI. 4. CIT, CENTRAL-2, MUMBAI 5. DR A BENCH 6. GUARD FILE (TRUE COPY) BY ORDER ASST. REGISTRAR, ITAT, MUMBAI BENCHES MUMBAI.