The Income tax Officer, Amritsar V. Smt Kulwant kaur, Amritsar

ITA 59/ASR/2011

• Counselvise Citation: 5920914 RSA 2011
• Duration Of Justice: 3 year(s) 3 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-06-2014
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 02-06-2014
• Assessment Year: 1999-2000
• Appeal Filed On: 21-02-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: PADAM BAHL
• Keywords: Opportunity of being heard; Additional evidence
• Section: 27; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. A.D. JAIN, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.61(ASR)/2011 ASSESSMENT YEAR:1999-2000 PAN :ANJPS2425H INCOME TAX OFFICER VS. SH. JATINDER SINGH, WARD 3(2), AMRITSAR. AMRITSAR (APPELLANT) (RESPONDENT) I.T.A. NO.59(ASR)/2011 ASSESSMENT YEAR:1999-2000 PAN :AUIPK2749N INCOME TAX OFFICER VS. SMT. KULWANT KAUR, WARD 3(2), AMRITSAR. AMRITSAR (APPELLANT) (RESPONDENT) I.T.A. NO.60(ASR)/2011 ASSESSMENT YEAR:1999-2000 PAN :AUIPK2750N INCOME TAX OFFICER VS. SMT. JASWINDER KAUR, WARD 3(2), AMRITSAR. AMRITSAR. (APPELLANT) (RESPONDENT) APPELLANT BY:SH.TARSEM LAL, DR RESPONDENT BY:SH.PADAM BAHL, CA DATE OF HEARING: 02/06/2014 DATE OF PRONOUNCEMENT:02/06/2014 ORDER ITA NOS. 61, 59 & 60(ASR)/2011 2 PER BENCH: THESE THREE APPEALS OF THE REVENUE ARISE FROM THRE E DIFFERENT ORDERS OF CIT(A), AMRITSAR, EACH DATED 02.12.2010. SINCE T HE ISSUE INVOLVED IS IDENTICAL IN ALL THE APPEALS, THEREFORE, WE ARE PRO CEEDING TO DECIDE ALL THE APPEALS BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. IDENTICAL GROUNDS OF APPEALS HAVE BEEN RAISED IN ALL THE THREE APPEALS, AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) ERRED IN LAW IN DELETING THE PENALTY LEVIED U/S 271 (1)(C) OF THE INCOME TAX ACT, 1961 AFTER THE DISMISSAL OF THE ASS ESSEES PETITION U/S 264 OF THE INCOME TAX ACT, 1961 BY WHI CH THE QUANTUM ORDER HAD ACQUIRED FINALITY. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) ERRED IN LAW IN DELETING SUCH PENALTY U/S 271(1)(C) BY PLACING RELIANCE UPON THE AB-INITIO, NULL AND VOID APPELLAT E ORDER PASSED BY THE LD. CIT(A) IN CONTRAVENTION OF THE PROVISION S OF SECTION 246/246A OF THE INCOME TAX ACT, 1961. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) ERRED IN LAW IN DELETING THE PENALTY IMPOSED U/S 27 1(1)(C) OF THE INCOME TAX ACT, 1961 WITHOUT APPRECIATING THE FACTU M AND STATUTORY CONSEQUENCES OF THE ORDER OF COMMISSIONER OF INCOME TAX U/S 264 OF THE INCOME TAX ACT, 1961 ALREADY IN EXISTENCE. 4. THE APPELLANT CRAVES LEAVE TO AMEND OR ADD ANY O R MORE GROUND(S) OF APPEAL. 3. FIRST OF ALL, WE TAKE UP APPEAL IN THE CASE OF S H. JATINDER SINGH, IN ITA NO.61(ASR)/2011 AND OUR DECISION HEREINBELOW SHALL BE IDENTICALLY ITA NOS. 61, 59 & 60(ASR)/2011 3 APPLICABLE IN ALL THE OTHER APPEALS MENTIONED HEREI NABOVE, SINCE THE FACTS ARE IDENTICAL IN OTHER APPEALS. 4. THE FACTS IN THE CASE OF SH. JATINDER SINGH IN I TA NO.61(ASR)/2011 ARE THAT THE ASSESSEE RECEIVED COMPENSATION ON LAND ACQUISITION FROM AMRITSAR IMPROVEMENT TRUST AMOUNTING TO RS.2,04,32, 677/-. SINCE THE FACTS WERE NOT DISCLOSED TO THE DEPARTMENT AND A.O. HAS P ASSED ASSESSMENT ORDER U/S 144 OF THE INCOME TAX ACT. CONSEQUENTLY, THE A O LEVIED PENALTY OF RS.23,97,826/- IN THIS CASE. 5. BEFORE THE LD. CIT(A), THE LD. COUNSEL FOR THE A SSESSEE SUBMITTED THAT THE QUANTUM ADDITION HAS BEEN DELETED BY THE LD. CIT(A) IN ASSESSEES OWN CASE VIDE ORDER DATED 29.06.2010 AND THE PENALTY OR DER PASSED BY THE AO SHOULD BE CANCELLED. 6. THE LD. CIT(A) ACCORDINGLY VIDE HIS ORDER 02.12. 2010 CANCELLED THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT AND THE REL EVANT ORDER IN PARA 6 OF THE LD. CIT(A) IS REPRODUCED FOR THE SAKE OF CONVENIENC E AS UNDER: 6. I HAVE CONSIDERED THE SUBMISSION OF THE LEARNED COUNSEL FOR THE APPELLANT. IT IS CORRECT THAT QUANTUM ADDITION HAS BEEN DELETED BY MY PREDECESSOR VIDE ORDER DATED 29.06.2010 IN APPEAL N O.237/2008-09 FOR A.Y. 1999-2000 IN APPELLANTS OWN CASE. AS THE QUANTUM ADDITION HAS BEEN DELETED, THE PENALTY LEVIED CANNOT SURVIVE . HENCE, THE PENALTY OF RS.23,97,826/- IMPOSED BY THE AO U/S 271 (1)(C) OF THE ACT IS CANCELLED. 7. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE, MR. PADAM BAHL, CA SUBMITTED THAT THE MATTER IN THE QUANTUM APPEAL TRA VELED UPTO THE ITAT, ITA NOS. 61, 59 & 60(ASR)/2011 4 AMRITSAR BENCH, WHERE THE MATTER HAS BEEN REMANDED BACK TO THE A.O. TO DECIDE THE ISSUE AFRESH. THEREFORE, THE PRESENT AP PEAL SHOULD ALSO BE SET- ASIDE TO THE FILE OF THE A.O. FOR DECIDING THE ISS UE IN THE PRESENT APPEAL AFTER DECIDING THE ISSUE IN THE QUANTUM APPEAL I.E. IN IT A NOS. 396 TO 398 (ASR)/2010, DATED 23.05.2014. 8. THE LD. DR, ON THE OTHER HAND, CONCEDED THE FACT S OF THE PRESENT CASE THAT THE MATTER SHOULD BE SET ASIDE TO THE FILE OF THE A.O. TO DECIDE THE APPEAL AFTER DECISION IN QUANTUM APPEAL, IN VIEW OF THE D ECISION OF THE ITAT, AMRITSAR BENCH, IN ITA NOS. 396 TO 398(ASR)/2010 DA TED 23.05.2014. 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. IN THE PRESENT CASE, ADDITION MADE ON ACCOUNT OF C OMPENSATION RECEIVED ON LAND ACQUISITION FROM AMRITSAR IMPROVEMENT TRUST, WAS ADDED TO THE INCOME OF THE ASSESSEE, WHICH WAS NOT DISCLOSED TO THE INCOME TAX DEPARTMENT. THE SAID ADDITION TO THE INCOME WAS DEL ETED BY THE LD. CIT(A). THE MATTER TRAVELED TO THE ITAT, AMRITSAR BENCH AN D ITAT, AMRITSAR BENCH VIDE ITS ORDER DATED 23.05.2014 IN ITA NOS. 3 96 TO 398(ASR)/2010 HAS SET ASIDE THE ISSUE TO THE FILE OF THE A.O. TO DECI DE THE SAME AFTER EXAMINING THE ISSUE AFRESH AND BY AFFORDING ADEQUATE OPPORTUN ITY OF BEING HEARD TO THE ASSESSEE. THE RELEVANT PART OF THE DECISION OF THE ITAT, AMRITSAR BENCH DATED 23.05.2014 IN ITA NOS. 396 TO 398(ASR)/2010 I S BEING REPRODUCED FOR THE SAKE OF CONVENIENCE AS UNDER: ITA NOS. 61, 59 & 60(ASR)/2011 5 28. AS REGARDS GROUNDS NO. 2 TO 6 OF THE REVENUE, T HERE IS MORE TO THE ISSUE RAISED IN THE PRESENT APPEAL WITH REGARD TO NATURE OF DETERMINATION OF CHARGEABLE INCOME. THE MATTER LEAD S TO EXAMINATION BY THE A.O. AND THE AO IN HIS REMAND PROCEEDINGS HA S NOT EXAMINED THE SAME IN VIEW OF THE DECISION OF THE HONBLE SUP REME COURT IN THE CASE OF CIT VS. SIMON CARVES LTD. REPORTED IN (197 6) 105 ITR 212 AND IN THE CASE OF BRIJ BHUSHAN LAL PARDUMAN KUMAR VS. C.I.T. REPORTED IN (1978) 115 ITR 524 AND CBDT CIRCULAR NO .14(XI-35) OF 1955 DATED 01.04.1955, THE MATTER IS SET ASIDE TO T HE FILE OF THE AO WHO WILL EXAMINE THE ISSUE ON MERIT WITH REGARD TO THE ADDITIONAL EVIDENCES WHICH WERE NOT SUBMITTED BEFORE THE AO DU RING THE ASSESSMENT PROCEEDINGS AND EXAMINE THE ISSUE BY AFF ORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASESSEE AND DECID E THE ISSUE ON THE ADDITIONAL EVIDENCE FILED DURING THE COURSE PROCEE DINGS BEFORE THE LD. CIT(A). ACCORDINGLY, GROUNDS NO. 2 TO 6 OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. THUS, THE APPEAL OF THE REVENUE IN ITA NO.396(ASR)/2010 IS PARTLY ALLOWED FOR STATIST ICAL PURPOSES. 29. NOW, WE TAKE UP THE APPEALS OF THE ASSESSES IN ITA NOS. 397(ASR)2010 & 398(ASR)/2010 IN THE CASE OF SM. KUL WANT KAUR AND SMT. JASWINDER KAUR. SINCE THE FACTS IN BOTH THESE APPEALS ARE IDENTICAL TO THE FACTS IN THE APPEAL OF SH.JATINDER SIGH IN ITA NO.396(ASR)/2010 AND THEREFORE, OUR DECISION HEREIN ABOVE IN THE CASE OF JATINDER SINGH IS IDENTICALLY APPLICABLE IN IT A NOS 397(ASR)/2010 & ITA NO.398(ASR)/2010. ACCORDINGLY, ALL THE GROUND S IN BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. IN THE RESULT, ALL THE THREE APPEALS OF THE REVEN UE IN ITA NOS. 396, 397 & 398(ASR)/2010 ARE PARTLY ALLOWED FOR STATIST ICAL PURPOSES. 10. IN VIEW OF OUR DECISION DATED 23.05.2014 IN ITA NOS.396 TO 398(ASR)/2014 IN THE CASE OF ASSESSEES IN QUANTUM A PPEALS, THE MATTER IS SET ASIDE TO THE FILE OF THE AO, WHO WILL DECIDE THE IS SUE WITH REGARD TO LEVY OF PENALTY U/S 271(1)(C) OF THE ACT, AS PER LAW AFTER THE DECISION OF THE QUANTUM APPEALS, WHICH WAS SET ASIDE IN ITA NOS. 396 TO 398 (ASR)/2010 VIDE ORDER ITA NOS. 61, 59 & 60(ASR)/2011 6 DATED 23.05.2011. ACCORDINGLY, ALL THE GROUNDS OF A PPEAL ARE ALLOWED FOR STATISTICAL PURPOSES. 11. NOW, WE TAKE UP APPEALS IN ITA NOS. 59 & 60(ASR )/2011. SINCE THE FACTS IN THE PRESENT APPEALS ARE IDENTICAL TO THE F ACTS IN ITA NO.61(ASR)/2011, AS MENTIONED HEREINABOVE. THEREFOR E, OUR DECISION HEREINABOVE IN ITA NO. 61(ASR)/2011 SHALL BE IDENTI CALLY APPLICABLE IN ITA NOS. 59 & 60(ASR)/2011 AND ACCORDINGLY ALL THE GROU NDS IN BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. 12. IN THE RESULT, ALL THE THREE APPEALS IN ITA NOS .61, 59 & 60(ASR)/2011 ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 2ND JUNE , 2014. SD/- SD/- (A.D. JAIN) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2ND JUNE, 2014 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:I) SH.JATINDER SINGH (II) SMT.KULWANT KAUR (III) SMT.JASWINDER KAUR, AMRITSAR. 2. THE ITO WARD-3(2), AMRITSAR. 3. THE CIT(A), AMRITSAR 4. THE CIT, AMRITSAR. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.