ACIT 27(3), NAVI MUMBAI V. RUSTOM ICE & COLD STORAGE CO., MUMBAI

ITA 5863/MUM/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0565 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-02-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 31-12-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAM TIWARI
• Keywords: Opportunity of being heard; Initiation of penalty proceedings

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI N.K. PRADHAN , HON'BLE ACCOUNTANT MEMBER ITA NO . 5863/MUM/2015 (A.Y : 2009 - 10 ) ACIT 27(3) 4 TH FLOOR, TOWER NO. 6, VASHI RAILWAY STATION BUILDING COMPLEX, VASHI 400 703 V . M/S. RUSTOM ICE & COLD STORAGE CO., C/O. RAGI ICE & COLD STORAGE, BPT GODOWN, 166 SASOON DOCK, COLABA MUMBAI 400 005 PAN NO : AAAFR 7587 D (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI PRAKASH PANDIT DEPARTMENT BY : SHRI RAM TIWARI DATE OF HEARING : 26.12.2017 DATE OF PRONOUNCEMENT : 07 .02.2018 O R D E R PER C.N. PRASAD 1. THIS APPEAL IS FILED BY THE REVENUE AGA INST THE ORDER OF THE LD.CIT(A) 25 , MUMBAI DATED 16.10.2015 FOR THE ASSESSMENT YEAR 2009 - 10 I N DELETING THE PENALTY LEVIED U/S. 271(1)(C) OF THE ACT. 2. AT THE OUTSET, O N A QUERY FROM THE BENCH , AS TO THE OUTCOME OF THE APPEAL IN QUANTUM PROCEEDINGS , LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE COORDINATE BENCH RESTORED THE QUANTUM APPEAL TO THE F ILE OF THE 2 ITA NO.5863/MUM/2015 (A.Y: 2009 - 10) M/S. RUSTOM ICE & COLD STORAGE CO., LD.CIT(A) IN ITA.NO. 7 368/MUM/2012 DATED 03.03.2016. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE QUANTUM APPEAL IS STILL PENDING BEFORE THE LD.CIT(A). ON A QUERY FROM THE BENCH AS TO WHY THIS ISSUE SHOULD NOT BE RESTORED BACK TO THE FILE OF THE LD.CIT(A) A S THE QUANTUM APPEAL IS PENDING, LD. COUNSEL FOR THE ASSESSEE, AT THE OUTSET SUBMITTED THAT THE INITIATION OF THE PENALTY PROCEEDINGS I TSELF IS BAD IN LAW AS THE CHARGE WAS NOT MADE CLEAR IN THE NOTICE ISSUED U/S. 274 R.W.S. 271(1)(C) OF THE ACT. LD. COUNSEL FOR THE ASSESSEE REFERRING TO T HE NOTICE SUBMIT TED THAT THE CHARGE IS NOT KNOWN FOR INITIATION OF PENALTY U/S. 271(1)(C) I.E. EITHE R FOR CONCEALMENT OF INCOME OR FOR FURNISHING OF INACCURATE PARTICULARS OF THE SAID INCOME. REFERRING TO THE ASSESSMENT ORDER AND SUBSEQUENT SHOW CAUSE NOTICE , L D . COUNSEL FOR THE ASSESSEE SUBMIT TED THAT ASSESSING OFFICER IN THE ASSESSMENT ORDER MENTIONED THE CHARGE AS FURNISHING INACCURATE PARTICULARS OF INCOME, HOWEVER, COMING TO THE SHOW CAUSE NOTICE AND THE PENALTY ORDER IT IS MENTIONED THAT THE ASSESSEE CONCEALED INCOME AND FURNISHED INACCURATE PARTICULARS OF INCOME . THEREFORE, HE SUBMITS TH AT THERE I S NO SPECIFIC CHARGE FOR WHICH THE PENALTY WAS LEVIED. LD. COUNSEL FOR THE ASSESSEE PLACED RELIANCE ON THE FOLLOWING DECISION S IN SUPPORT OF ITS CONTENTIONS THAT IF SPECIFIC CHARGE IS NOT MADE IN THE NOTICE BY STRIKING OFF THE APPROPRIATE LIMB THE INITIA TION OF PENALTY PROCEEDINGS BECOME NULL AND VOID . 3 ITA NO.5863/MUM/2015 (A.Y: 2009 - 10) M/S. RUSTOM ICE & COLD STORAGE CO., (A) CIT V. SHRI SAMSON PERINCHERY, ITA.NO. 1154 OF 2014 (BOM.HC.) (B) SHRI. SAMSON PERINCHERY V . ACIT IN ITA.NO. 4625/MUM/2013. (C) CIT V. MANJUNATH COTTON & GINNING FACTORY [359 ITR 565] (D) CIT V. M/S. SSAS EMERALD MEADOWS S.C. C.C. NO. 11485/2016. (E) PCIT V . SMT. BAISETTY REVATHI [398 ITR 88] (F) T. ASHOK PAI V . CIT [292 ITR 11] (G) M/S. ORBIT ENTERPRISES V . ITO 15(2)(2) IN ITA.NO. 1596 & 1597/MUM/2014. (H) JEHANGIR HC JEHANGIR V . ACIT IN ITA.NO. 1261/MUM/2011 (I) CIT V . SMT. KAUSHALY A AND OTHERS [216 ITR 660] (J) M/S. M. WASEEQ CAFETARIA V . ITO IN ITA.NO. 08/PUN/2014 3. LD.DR HOWEVER P LACING RELIANCE ON THE DECISION OF THE HON'BLE JURISDICTIONAL H IGH COURT IN THE CASE OF CIT V . SMT. KAUSHALYA AND OTHERS [ 216 ITR 660 ] SUBMITTED THAT DEFECT IN NOTICE WILL NOT AB SOLVE ASSESSEE FRO M THE CHARGE OF CONCEALMENT OF PARTICULARS INCOME. IT IS FURTHER SUBMITTED THAT IT IS SPECIFICALLY MENTIONED IN THE ASSESSMENT ORDER AS WELL AS THE PENALTY ORDER THAT THE PENALTY WAS LEVIED FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THEREFORE, HE SUBMITS THAT PENALTY PROCEEDINGS WERE INITIATED PROPERLY. IN ANY CASE THE LD.DR SUBMITS THAT SINCE THE QUANTUM APPEAL IS RESTORED TO THE FILE OF THE LD.CIT(A) THIS APPEAL ALSO MAY BE RESTORED TO LD.CIT(A) FOR FRESH ADJUDICATION . 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF THE AUTHORITIES BE LOW AND THE CASE LAWS RELIED ON, ON THE PRELIMINARY ISSUE OF THE VALIDITY OF INITIATION OF PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE ACT. I N THIS CASE THE APPEAL AGAINST QUANTUM ADDITIONS HAS BEEN SET - ASIDE TO THE FILE OF THE LD. CIT(A) BY THE COORDINATE BENCH IN ITA.NO. 7368 /MUM/2012 DATED 03.03.2016 AND THE APPEAL IS STILL PENDING BEFORE THE LD.CIT(A). ON 4 ITA NO.5863/MUM/2015 (A.Y: 2009 - 10) M/S. RUSTOM ICE & COLD STORAGE CO., A PERUSAL OF THE APPEAL FILED BY THE ASSESSEE AGAINST THE PENALTY ORDER BEFORE THE LD.CIT(A) , WE FIND THAT THE PRELIMINARY CONTENTIONS NOW RAISED BEFORE US WERE NEVER RAISED BEFORE THE LD.CIT(A). THO UGH THEY ARE LEGAL CONTENTIONS WE FEEL IT APPROPRIATE TO RESTORE THIS APPEAL TO THE FILE OF THE LD.CIT(A) WHO SHALL DECIDE ALL THE CONTENTIONS OF THE ASSESSEE ALONG WITH THE QUANTUM APPEAL PENDING BEFORE HIM. THUS, WE RESTORE THIS APPEAL TO THE FILE OF THE LD.CIT(A) WHO SHALL DISPOSE O F F THE PENALTY APPEAL OF THE ASSESSEE ALONG WITH THE QUANTUM APPEAL PENDING BEFORE HIM. THE A SSESSEE IS AT LIBERTY TO RAISE ALL THE CONTENTIONS ON PRELIMINARY ISSUES BEFORE THE LD.CIT(A) INCLUDING THE VERY BASIS FOR LEVY OF PENALTY AND THE LD.CIT(A) SHALL DISPOSE OF F THO SE CONTENTIONS IN ACCORDANCE WITH THE LAW, AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THUS, THIS APPEAL IS RESTORED TO THE FILE OF THE LD.CIT(A) FOR DENOVO ADJUDICATION IN ACCORDANCE WITH LAW. 5. IN THE RESULT, APPE AL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THE 0 7 TH FEBRUARY , 2018 . SD/ - SD/ - ( N. K. PRADHAN ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 07 / 02 / 201 8 GIRIDHAR , SPS 5 ITA NO.5863/MUM/2015 (A.Y: 2009 - 10) M/S. RUSTOM ICE & COLD STORAGE CO., COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER, (ASSTT. REGISTRAR) ITAT, MUM