M/s. Agri Produce Market Committee, Ahmednagar V. ACIT, Ahmednagar, Circle, Ahmednagar

ITA 544/PUN/2012

• Counselvise Citation: 54424514 RSA 2012
• Duration Of Justice: 1 year(s) 1 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-04-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 15-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANN KAPTHUAMA
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER , AND SHRI R.K. PANDA, ACCOUNTANT MEMBER. ITA.NO.544/PN/2012 (ASSESSMENT YEAR 2005-06) M/S. AGRICULTURAL PRODUCE MARKET COMMITTEE, KISAN KRANTI BUILDING, MARKET YARD, AHMEDNAGAR 414001. .. APPELLANT PAN NO.AAALA 0304R VS. ACIT, AHMEDNAGAR CIRCLE, AHMEDNAGAR .. RESPONDENT ASSESSEE BY : SHRI KISHORE PHADKE REVENUE BY : MS. ANN KAPTHUAMA DATE OF HEARING : 17-04-2013 DATE OF PRONOUNCEMENT : 19-04-2013 ORDER PER R.K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER DATED 12-10-2011 OF THE CIT(A)-I, PUNE RELATING TO ASSES SMENT YEAR 2005-06. 2. THE ONLY EFFECTIVE GROUND RAISED BY THE ASSESSEE READS AS UNDER : THE CIT(A)-I ERRED IN LAW AND ON FACTS IN CONFIRMI NG THE PENALTY AMOUNTING RS.20,21,627/- U/S.271(1)(C) OF THE I.T. ACT, 1961 LEVIED BY THE DCIT, AHMEDNAGAR. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS A LOCAL AUTHORITY AND THE ASSESSMENT WAS COMPLETED U/S.143(3) OF THE INCO ME TAX ACT, 1961 BY DETERMINING THE TOTAL LOSS AT RS.9,94,049/- AS AGAI NST THE RETURNED LOSS OF RS.56,67,660/-. IN THE ASSESSMENT CLAIM OF DEPRECI ATION OF RS.60,06,073/- ON BUILDING WAS DENIED TREATING THE RENTAL INCOME A S INCOME FROM HOUSE PROPERTY AS AGAINST BUSINESS INCOME CLAIMED BY T HE ASSESSEE. FURTHER, THERE WAS DISALLOWANCE OF RS.2,98,397/- U/S.43B OF THE INCOME TAX ACT. 2 4. IN APPEAL THE LD. CIT(A) SUSTAINED BOTH THE ADDI TIONS. THE ASSESSING OFFICER THEREAFTER INITIATED PENALTY PROCEEDINGS U/ S.271(1)(C) AND LEVIED PENALTY OF RS.20,21,627/-. IN APPEAL THE LD. CIT(A) DECIDED THE ISSUE EXPARTE DUE TO NON-APPEARANCE OF THE ASSESSEE DESPI TE SERVICE OF NOTICE AND UPHELD THE PENALTY LEVIED BY THE ASSESSING OFFICER. 5. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSE SSEE IN APPEAL BEFORE US. 6. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT UNDER IDENTICAL FACTS AND CIRCUMSTANCE THE LD. CIT(A) HAS DELETED T HE PENALTY LEVIED BY THE ASSESSING OFFICER FOR THE A.Y. 2003-04. THEREFORE, HE SHOULD NOT HAVE DECIDED THE ISSUE AGAINST THE ASSESSEE BY NOT FOLLO WING THE EARLIER ORDER IN CASE OF THE ASSESSEE UNDER IDENTICAL FACTS AND CIRC UMSTANCES. 7. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHE R HAND SUBMITTED THAT SINCE THE ASSESSEE HAD NOT APPEARED BEFORE THE CIT(A) DESPITE SERVICE OF NOTICE AND SINCE THE LD. CIT(A) HAS GIVEN VALID REASONS FOR SUSTAINING THE PENALTY, THEREFORE, THE SAME SHOULD BE UPHELD. 8. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE FIND FROM THE APPEAL ORDER FOR A.Y. 2003-04 THAT THE LD. CIT(A) HAS DELETED THE PE NALTY LEVIED BY THE ASSESSING OFFICER U/S.271(1)(C) OF THE I.T. ACT UND ER IDENTICAL FACTS. HOWEVER, FOR THE IMPUGNED ASSESSMENT YEAR THE LD. C IT(A) HAS DEVIATED FROM HIS EARLIER ORDER AND CONFIRMED THE PENALTY LE VIED U/S.271(1)(C) OF THE ACT BY THE ASSESSING OFFICER. WE FIND DUE TO NON-A PPEARANCE BEFORE THE 3 LD. CIT(A) THE EARLIER ORDER WAS NOT BROUGHT TO HIS NOTICE FOR WHICH ALL THIS CONFUSION AROSE AND THE CIT(A) HAD NO OPPORTUNITY T O GO THROUGH THE EARLIER ORDER AND THE APPLICABILITY OR NON-APPLICABILITY OF THE SAME TO THE FACTS OF THE PRESENT CASE. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND IN THE INTEREST OF JUSTICE WE DEEM IT PROPER TO RESTORE TH E MATTER TO THE FILE OF THE LD. CIT(A) WITH A DIRECTION TO DECIDE THE ISSUE AFR ESH AND IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEAR D TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. GROUND RAISED BY THE ASSESSEE IS ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS THE 19 TH OF APRIL, 2013. SD/- SD/- (SHAILENDRA KUMAR YADAV ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER SATISH PUNE, DATED THE 19 TH APRIL 2013. COPY OF THE ORDER IS FORWARDED TO: 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT(A)-I, PUNE 4. THE CIT-I, PUNE 5. THE DR A BENCH, PUNE. 6. GUARD FILE BY ORDER // TRUE COPY // PRIVATE SECRETARY, INCOME TAX APPELLATE T RIBUNAL, PUNE.