Income Tax Officer Ward-1, BHILAI(CG) V. SHRI Rajendra Kumar Shivhare, Durg

ITA 52/BIL/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94022 (ITAT-RAIPUR)
• Duration Of Justice: 4 year(s) 3 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 23-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S M DAS
• Keywords: Principle of natural justice; Reasonable cause
• Section: 142(1); 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH , RAIPUR BEFORE S/SHRI MUKUL K SHRAWAT, ( JM) AND SHAMIM YAHYA,(AM) I TA . NO . 52 / BLPR / 201 1 (ASSESSMENT YEAR : 200 6 - 07 ) INCOME TAX OFFICER - 1, AAYAKAR BHAVAN, CIVIC CENTRE, BHILAI. VS. SHRI RAJEND RA KUMAR SHIVARE, VILLAGE - BANBARAD, NANDINI, DIST. DURG, APPELLANT .. RESPONDENT ITA. NO. 69 / BLPR / 201 1 (ASSESSMENT YEAR : 2006 - 07 ) SHRI RAJENDRA KUMAR SHIVARE, VILLAGE - BANBARAD, NANDINI, DIST. DURG, VS. INCOME TAX OFFICER - 1, AAYAKAR BHAVAN, CIVIC CENTRE, BHILAI APPELLANT .. RESPONDENT PAN/GIR NO. : - BAKPS - 3818P REVENUE BY : SHRI S M DAS ASSESSEE BY : NONE DATE OF HEARING : 9 .6.2015 DATE OF PRONOUNCEMENT: 19 . 6. 201 5 O R D E R PER MUKUL K SHRAWAT, ( JM) : THESE ARE THE CROSS APPEALS ARISING FROM THE ORDER OF LD.CIT (A) - RAIPUR DATED 10 .11.20 10 PASSED U/S 271(1)(C ) OF THE INCOME TAX ACT, 1961 AND THEY RELATE TO THE ASSESSMENT YEAR 2006 - 07. 2. THE NOTICE O F HEARING WAS SENT TO THE ASSESSEE ; WHICH WAS RECEIVED BACK IN THE OFFICE OF THE TRIBUNAL WITH THE POSTAL REMARK RECEIVER IS NOT ITA. NO. 52 /BLPR/ 201 1 AND ITA NO. 69 /BLPR/201 1 2 STAYING IN BANBARD . THEREFORE, WE PROCEED TO DISPOSE OFF THIS APPEAL IN THE ABSENCE OF ASSESSEE AFTER HEARING THE LD. DR. 3 . FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER ASSESSED THE TOTAL INCOME OF THE ASSESSEE UNDER SECTION 144 OF THE INCOME TAX ACT, 1961 (THE ACT). SINCE THE ASSESSEE FAILED TO SUBSTANTIATE CERTAIN DEPOSITS THE SAME WERE TAXED AND INITIATED PENALTY PROCEE DINGS U/S 271(1)( C) OF THE ACT CONSEQUENTLY LEVIED A PENALTY OF RS.14, 41 ,700/ - . AGGRIEVED BY THIS ORDER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD.CIT(A) AND AFTER CONSIDERING THE FACTS RELIEF GIVEN IN QUANTUM APPEAL GRANTED PART RELIEF. THE LD. CI T DIRECTED THE AO TO RECALCULATE THE PENALTY. AGGRIEVED BY THIS DIRECTION, THE REVENUE HAS FILED THIS APPEAL BEFORE THE TRIBUNAL. THE ASSESSEE IS ALSO AGGRIEVED BY THE ORDER OF LD. CIT(A) IN NOT CONSIDERING THE PLEA OF PRINCIPLE OF NATURAL JUSTICE TO DEL ETE THE PENALTY . THESE CROSS - APPEALS ARE NOT FIXED FOR HEARING BEFORE US. 4 . WE HAVE CONSIDERED THE SUBMISSION OF LD. DR AS WELL AS PERUSED THE RELEVANT RECORD AVAILABLE BEFORE US. WE FIND THAT THE ORIGINAL ASSESSMENT WAS COMPLETED U/S 144 OF THE ACT DET ERMINING THE TOTAL INCOME AT RS.45,87,670/ - . THE AO ALSO IMPOSED PENALTY IN QUESTION . IN THE APPELLATE PROCEEDINGS, THE LD. CIT(A) HAS NOTED THAT THE TOTAL INCOME WAS REDUCED BY RS.15,29,960/ - HENCE DIRECTED THE AO TO RECALCULATE THE PENALTY BY HOLDING AS UNDER : 3.2 IN THE COURSE OF APPEAL PROCEEDINGS, THE APPELLANT FURTHER SUBMITTED THAT QUANTUM APPEAL WAS DECIDED BY CIT(A) VIDE ORDER IN APPEAL NO.140/09 - 10 ON 18.03.2010 AND RELIEF OF RS.15,29,960/ - WAS GIVEN . HE HAS ALSO STATED THAT THE NOTICES U/ S 148 AND U/S 142(1) WERE NOT SERVED. THEREFORE, THE APPELLANT COULD NOT FILE THE RETURN . ACCORDINGLY, THE PENALTY CANNOT BE LEVIED UPON HIM. EXCEPT THIS, NO OTHER REASONABLE CAUSE WAS GIVEN . THE SERVICE OF NOTICE U/S 148 AND 142 IS NOT THE SUBJECT MA TTER OF APPEAL FOR THE PRESENT PROCEEDINGS. IT APPEARS THESE GROUNDS WERE ALREADY CONSIDERED IN THE QUANTUM APPEAL BY THE CIT(A). THEREFORE , THE SAME CANNOT BE RE AGITATED NOW. THERE IS NO EXPLANATION REGARDING THE DEFAULT FOR WHICH THE PENALTY IS LEV IED. THEREFORE, I AM OF T HE OPINION THAT THE AO IS CORRECT IN LYING PENALTY. HOWEVER , THE AO IS DIRECTED TO RECALCULATE THE PENALTY AFTER CONSIDER THE RELIEF GIVEN BY THE CIT (A) IN THE APPEAL ORDER IN RESPECT OF QUANTUM APPEAL. ITA. NO. 52 /BLPR/ 201 1 AND ITA NO. 69 /BLPR/201 1 3 5. THEREFORE , THE FACTS O F THE CASE HAVE REVEALED THAT THE QUANTUM ADDITION WAS REDUCED IN FIRST APPEAL DUE TO WHICH WHILE DECIDING THE PENALTY APPEAL LD CIT(A) HAS SIMPLY DIRECTED TO RECALCULATE THE PENALTY AFTER GIVING EFFECT OF THE SAID RELIEF ALREADY GRANTED IN QUANTUM APPE AL. THERE IS NO FALLACY IN THE SAID DIRECTION, HENCE HEREBY CONFIRMED. BEFORE WE PART WITH, IT IS WORTH TO MENTION THAT IN THE PAST NEITHER BEFORE AO OR CIT(A) NOR BEFORE US THE CASE WAS REPRESENTED PROPERLY AND THE REASON GIVEN WAS THAT THE ASSESSEE WAS IN CENTRAL JAIL, DURG. THEREFORE, IT APPEARS THAT THERE IS NO POSSIBILITY IN NEAR FUTURE OF ANY FRUITFUL REPRESENTATION FROM T HE SIDE OF THE ASSESSEE IN T HIS MATTER, HENCE WE HAVE DECIDE D (SUPRA) TO PROCEED EX - PARTE QUA THE ASSESSEE AFTER HEARING T HE LD. DR. IN THE RESULT THE GROUNDS RAISED BY THE REVENUE AS WELL AS BY THE ASSESSEE BOTH ARE DISMISSED. 6 . IN THE RESULT, APPEALS OF THE REVENUE AS WELL AS THE APPEAL FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19TH JUNE , 201 5 SD SD ( SHAMIM YAHYA ) ( MUKUL K SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER RAIPUR : 19TH JUNE,2015. SRL , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - CONCERNED 4. CIT CONCERNED 5. DR, ITAT, RAIPUR CONCERNED 6. GUARD FILE. BY ORDER, TRUE CO PY SENIOR PRIVATE SECRETARY, /AR