Shri Jayantilal M. Vadodaria, RAJKOT-GUJARAT V. The Income Tax Officer, Ward-4 (4) , RAJKOT-GUJARAT

ITA 579/RJT/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 6856 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 11 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 24-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: DR ADHIA
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH , RAJKOT BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI RAJPAL YADAV , JUDICIAL MEMBER ./ ITA NO . 579 / RJT / 20 1 5 / ASS TT. YEAR : 200 8 - 0 9 SHRI JAYANTILAL M. VADODARIYA C/O. D.R. ADHIA M SHRI PADMALAYA BESIDE TRIKAMRAIJI HAWELI OPP: HOTEL IMPERIAL PALACE 16, JAGNATH PLOT DR.YAGNIK ROAD, RAJKOT. VS THE ITO, WARD - 4(4) RAJKOT. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI D.R. ADHIA, AR REVENUE BY : SHRI PRAVIN VERMA, DR / DATE OF HEARING : 01 / 1 1 /201 7 / DATE OF PRONOUNCEMENT: 02 / 1 1 /201 7 / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER : ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST ORDER OF LD.CIT(A) - 2 , RAJKOT DATED 16.9.2015 PASSED FOR THE ASSTT.YEAR 200 8 - 0 9 . 2. SOLE GRIEVANCE OF THE ASSESSEE IS THA T THE LD.CIT(A) HAS ERRED IN DISMISSING ITS APPEAL ON THE G R OUND THAT IT WAS FILED AFTER EXPIRY OF LIMITATION AND THER E AFTER CONFI RMED THE PENALTY O F R S.4.50 LAKHS. 3. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, WE GONE THROUGH THE RECORD. IT EMERGES OUT FROM THE RECORD THAT THE APPEAL OF THE ASSESSEE IS TIME BARRED BEFORE THE LD.CIT(A) ROUGHLY ABOUT 10 DAYS. THE ASSESSEE HAS GIVEN EXPLANATION THAT ASSESSEE S WIFE IS SUFFERING FROM CANCER AND ADMITTED IN HOSPITAL FOR TREATMENT . THE ASSESSEE HAS ALSO FILED MEDICAL DOCU MENTS TO SUPPORT THIS PLEA. SOMEHOW THE ITA NO 579 /RJT/201 5 2 EXPLANATION COULD NOT FIND APPROVAL FRO M THE LD.FIRST APPELLATE AUTHORITY AND APPEAL OF THE ASSESSEE WAS DISMISSED BEING TIME BARRED. 4. AFTER GOING TH ROUGH THE RECORD , WE ARE SATISFIED THAT THE ASSESSEE HAS GIVEN PLAUSIBLE EXPLANATION BEFORE THE LD.CIT(A); MORE SO WHEN ADDITION ON WHICH PENALTY HAS BEEN IMPOSED BY THE ASSESSING OFFICER STANDS DELETED BY THE TRIBUNAL. ON ACCOUNT OF SOME TECHNICAL ERROR AT THE END OF THE ASSESSEE, PENALTY OF RS.4.50 LAKHS SHOULD NOT HAVE BEEN CONFIRMED. IT IS PERTINENT TO OBSERVE THAT QUASI JUDICIAL AUTHO RITIES ARE BEING RESPECTED NOT ON ACCOUNT OF THEIR POWER TO LEGALISE INJUSTICE ON TECHNICAL GROUND BUT BECAUSE, THEY ARE CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO TO THE CITIZENS. THEREFORE, WE CONDONE THE DELAY IN FILING THE APPEAL BEFORE TH E LD.CIT(A), AND PROCEED TO DECIDE THE APPEAL ON MERIT. 5 . IT IS PERTINENT TO OBSERVE THAT PENALTY OF R S. 4 . 5 0 LAKHS HAS BEEN IMPOSED UPON THE ASSESSEE ON ACCOUNT OF ADDITION OF RS.15 LAKHS MADE WITH THE AID OF SECTION 68 OF T H E ACT. THIS ADDITION STANDS DELETED BY THE ITAT IN QUANTUM APPEAL, IN ITA NO.174/RJT/2013 ORDER DATED 10.1.2014. COPY OF THIS ORDER HAS BEEN PLACED ON RECORD. THE LD.DR HAS NOT CONTROVERTED THIS FACTUAL POSITION OF THE CASE. 6 . WE HAVE DULY CONSIDERE D RIVAL CONTENTIONS AND GONE THROUGH THE RECORD CAREFULLY. WE FIND THAT SUB - CLAUSE (III) OF SECTION 271(1)(C) PROVIDES MECHANISM FOR QUANTIFICATION OF PENALTY. IT CONTEMPLATES THAT THE ASSESSEE WOULD BE DIRECTED TO PAY A SUM IN ADDITION TO TAXES, IF ANY, PAYABLE HIM, WHICH SHALL NOT BE LESS THAN , BUT WHICH SHALL NOT EXCEED THREE TIMES THE AMOUNT OF TAX SOUGHT TO BE EVADED BY REASON OF CONCEALMENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME. IN OTHER WORDS, THE QUANTIFICATION OF THE PENAL TY IS DEPENDED UPON THE ADDITION MADE TO THE INCOME OF THE ASSESSEE. SINCE IN THE PRESENT CASE, BASIS FOR VISITING THE ASSESSEE WITH PENALTY HAS BEEN ITA NO 579 /RJT/201 5 3 EXTINGUISHED BY DELETING THE ADDITION VIDE ABOVE ORDER OF THE TRIBUNAL DATED 10.1.2014 IN ITA NO.174/RJT/ 2013 , THEREFORE, THERE CANNOT BE ANY PENALTY UPON THE ASSESSEE UNDER SECTION 271(1)(C) OF THE ACT, AND ACCORDINGLY, WE CANCEL THE IMPUGNED PENALTY CONFIRMED BY THE LD.CIT(A) AND ALLOW GROUND OF APPEAL OF THE ASSESSEE. 7 . IN THE RESULTS, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE CO URT ON 2 N D NOVEMBER, 201 7 AT RAJKOT . S D / - S D / - ( PRAMOD KUMAR ) ACCOUNTANT MEMBER ( RAJPAL YADAV) JUDICIAL MEMBER