SHRI AJAY KUMAR JAIN, AJMER V. ASSISTANT COMMISSIONER OF INCOME TAX (TDS), GHAZIABAD

ITA 54/JPR/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 9108 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-08-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: misc
• Appeal Filed On: 15-01-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ROONIPAL
• Keywords: Initiation of penalty proceedings
• Section: 271(1)(c); 274; 254(2); 73

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,B JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM MA NO. 54/JP/2019 (ARISING OUT OF ITA NO. 859/JP/2016) FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2011-12 THE ITO, WARD-1, KISHANGARH. CUKE VS. SHRI KAILASH CHAND BANGUR, M/S ARUN MARBLE TRADERS, 51, BHATI COLONY, JAIPUR ROAD, MADANGANJ, KISHANGARH. . LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ACYPB 0569 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : SMT. ROONI PAL (DCIT) FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI SANDEEP JHANWAR (ADV.) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 07/08/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 10/08/2020 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. BY WAY THIS MISCELLANEOUS APPLICATION THE REVENUE IS SEEKING RECALLING OF ORDER DATED 12.02.2019 OF THIS TRIBUNA L. DUE TO PREVAILING COVID-19 PANDEMIC CONDITION THE HEARING OF THE APPE ALS ARE CONCLUDED THROUGH VIDEO CONFERENCE. MA NO. 54/JP/2019 ITO VS. SHRI KAILASH CHAND BANGUR 2 2. THE REVENUE IN THE MISC. APPLICATION HAS ALLEGED THE MISTAKE IN THE IMPUGNED ORDER AS UNDER:- IN THIS REGARD, IT IS SUBMITTED THAT THE HON'BLE M ADRAS HIGH COURT WHILE DECIDING THE APPEAL IN THE CASE OF SUND ARAM FINANCE LTD. VS. ACIT [2018] 403 ITR 407 (MADRAS) H ELD THAT EVEN ASSUMING THAT THERE WAS DEFECT IN THE NOTICE, IT HAD CAUSED NO PREJUDICE TO THE ASSESSEE AND THE ASSESSE E CLEARLY UNDERSTOOD WHAT WAS THE PURPORT AND IMPORT OF NOTIC E ISSUED U/S 274 READ WITH SECTION 271 OF THE ACT. THE SLP F ILED BY THE ASSESSEE BEFORE THE HON'BLE SUPREME COURT HAS ALSO BEEN DISMISSED ([2018] 259 TAXMAN 220 (SC)). THE ID. D/R ON THE HAND TRIED TO JUSTIFY THE ORDER OF THE LOWER AUTHOR ITIES ON THE ISSUE', WHEREAS THE ASSESSEE HAS NOT DISCLOSED THE CORRECT AMOUNT OF TURNOVER WHICH WAS DETECTED DURING THE INVESTIGATION CARRIED OUT IN CASE OF SHRI P.C. VIJA YVARGIYA. THE ASSESSEE HIMSELF ADMITTED THE ADDITION MADE BY THE AO AND THEREFORE, IT WAS KNOWN TO THE ASSESSEE THAT HE HAS CONCEALED THE PARTICULARS OF INCOME. WHILE PASSING THE ORDER, THE HON'BLE ITAT HAS NOT CONSIDERED THE LATEST JUDGMENT OF HON' BLE MADRAS HIGH COURT IN THE CASE OF SUNDARAM FINANCE LTD., TH EREFORE, IN THE IMPUGNED ORDER HAS BEEN MADE IN THIS REGARD WHI CH IS A MISTAKE IN THE ORDER. 3. THE LD. DR HAS SUBMITTED THAT THIS TRIBUNAL WHIL E PASSING THE IMPUGNED ORDER ON THE ISSUE OF VALIDITY OF INITIATI ON OF THE PENALTY PROCEEDINGS U/S 271(1)(C) OF THE IT ACT HAS RELIED UPON THE JUDGMENT OF HONBLE KARNATAKA HIGH COURT IN CASE OF CIT VS. MANJUNATHA COTTON & GINNING FACTORY 359 ITR 565 AS WELL AS DISMISSAL OF THE SLP FILED BY THE MA NO. 54/JP/2019 ITO VS. SHRI KAILASH CHAND BANGUR 3 REVENUE BY THE HONBLE SUPREME COURT IN CASE OF CIT VS. SSAS EMERALD MEADOWS 73 TAXMANN.COM 241 BUT THIS TRIBUNA L HAS NOT CONSIDERED THE DECISION OF HONBLE MADRAS HIGH COUR T IN CASE OF SUNDARAM FINANCE LTD. VS. ACIT 403 ITR 407 AND THE SLP FILED BY THE ASSESSEE IN THE SAID CASE WAS ALSO DISMISSED BY THE HONBLE SUPREME COURT REPORTED IN 259 TAXMAN 220. THUS, THE LD. DR HAS SUBMITTED THAT THERE IS A MISTAKE IN THE IMPUGNED ORDER AS THE TRI BUNAL HAS NOT CONSIDERING THE DECISION OF HONBLE MADRAS HIGH COU RT AND CONSEQUENTLY THE IMPUGNED ORDER BE RECALLED FOR FRESH HEARING. 4. ON THE OTHER HAND, THE LD. AR OF THE ASSESSEE HA S SUBMITTED THAT THE TRIBUNAL HAS TAKEN A VIEW BY FOLLOWING VARIOUS JUDGMENTS INCLUDING THE JUDGMENT OF HONBLE JURISDICTION HIGH COURT IN CASE OF SHEVETA CONSTRUCTION CO. VS. ITO IN ITDB NO. 534/2008. THER EFORE, A VIEW TAKEN BY THE TRIBUNAL CANNOT BE REVIEWED IN THE PROCEEDIN GS U/S 254(2) OF THE ACT ONLY BECAUSE THERE IS A DIVERSION DECISION BY NON JURISDICTION HIGH COURT. THE LD. AR HAS ALSO REFERRED TO A SERIE S OF DECISIONS OF OTHER HIGH COURTS AS WELL AS THIS TRIBUNAL WHEREIN A SIMI LAR VIEW HAS BEEN TAKEN AS TAKEN BY THIS TRIBUNAL IN THIS CASE THEREF ORE, THE JURISDICTION OF THE TRIBUNAL U/S 254(2) OF THE ACT DOES NOT PERMIT THE REVIEW OF ITS OWN ORDER. HE HAS RELIED UPON THE DECISION OF HONBLE P UNJAB AND HARYANA MA NO. 54/JP/2019 ITO VS. SHRI KAILASH CHAND BANGUR 4 HIGH COURT IN CASE OF CIT VS. M/S VARDHMAN SPINNING 93 TAXMAN 453 AS WELL AS DECISION OF HONBLE DELHI HIGH COURT IN CASE OF SHRI RAS BIHARI BANSAL VS. CIT 170 TAXMAN 31. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. THE REVENUE HAS RAISED A PLEA I N THE PRESENT MISC. APPLICATION THAT THE TRIBUNAL HAS DECIDED THE APPEA L OF THE ASSESSEE BY FOLLOWING DECISIONS OF HONBLE KARNATAKA HIGH COURT AS WELL AS OTHER DECISIONS ON THE POINT OF VALIDITY OF INITIATION OF PENALTY PROCEEDINGS HOWEVER, THERE IS A JUDGMENT OF HONBLE MADRAS HIGH COURT WHICH IS IN FAVOUR OF THE REVENUE. THEREFORE, NON CONSIDERING O F THE JUDGMENT OF HONBLE MADRAS HIGH COURT AMOUNTS TO A MISTAKE APPA RENT ON RECORD REQUIRES RECTIFICATION. WE DO NOT AGREE WITH THIS C ONTENTION AND PLEA OF THE REVENUE SIMPLY DUE THE REASON THAT WHILE DECIDI NG THIS ISSUE THE TRIBUNAL HAS TAKEN A FIRM VIEW WHICH IS SUPPORTED B Y VARIOUS JUDGMENTS INCLUDING THE JUDGMENT OF HONBLE JURISDICTION HIGH COURT IN CASE OF SEVETA CONSTRUCTION CO. VS. ITO IN ITDB A NO. 534/2 008. THE JUDGMENT OF JURISDICTION HIGH COURT IS BINDING ON THIS TRIBU NAL SPECIFICALLY JAIPUR AND JODHPUR BENCHES OF THE TRIBUNAL. THE DECISION O F HONBLE MADRAS HIGH COURT WAS NOT RELIED UPON OR CITED BY THE REVE NUE AT THE TIME OF HEARING OF THE APPEAL. FURTHER, EVEN IN CASE OF DIV ERGENT VIEW OF THE MA NO. 54/JP/2019 ITO VS. SHRI KAILASH CHAND BANGUR 5 HONBLE HIGH COURTS ON A ISSUE THE TRIBUNAL IS BOUN D BY THE VIEW TAKEN BY THE HONBLE JURISDICTION HIGH COURT. HENCE, THE DECISION WHICH WAS NOT CITED BY THE REVIEWED OR RELIED UPON BY THE REV ENUE AT THE TIME OF HEARING CANNOT BE A GROUND FOR MISTAKE IN THE ORDER OF THE TRIBUNAL WHEN THE TRIBUNAL HAS FOLLOWED THE VARIOUS OTHER DE CISIONS OF HONBLE HIGH COURTS AS WELL AS DECISION OF HONBLE JURISDIC TION HIGH COURT. IT IS SETTLED PROPOSITION OF LAW THAT THE JURISDICTION OF THE TRIBUNAL U/S 254(2) OF THE ACT IS VERY LIMITED AND CIRCUMSCRIBED AND DO ES NOT PERMIT ANY REVIEW OR REVISION OF ITS OWN DECISION TAKEN ON MER ITS. THEREFORE, WE DO NOT FIND ANY MERIT OR SUBSTANCE IN THE MISC. APPLIC ATION OF THE REVENUE, THE SAME IS DISMISSED. IN THE RESULT, THE M.A. OF THE DEPARTMENT IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10/08/2020. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 10/08/2020. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- ITO, WARD-1, KISHANGARH. 2. IZR;FKHZ@ THE RESPONDENT- SHRI KAILASH CHAND BANGUR, KISHANGA RH. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) MA NO. 54/JP/2019 ITO VS. SHRI KAILASH CHAND BANGUR 6 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {MA NO. 54/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR