Smt. Mandrawati Devi, Faizabad V. ITO, Faizabad

ITA 620/LKW/2009

• Counselvise Citation: 62023714 RSA 2009
• Duration Of Justice: 42 year(s) 5 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-06-2012
• Appeal Filed By: Assessee
• Assessment Year: misc
• Appeal Filed On: 01-01-1970
• Court: TRIBUNAL
• Assessee Lawyers: SAGIR AHMED
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI S. V. MEHROTRA , ACCOUNTANT MEMBER ITA NO. 620/LKW/2009 ASSESSMENT YEAR: 2002 - 03 SMT. MANDRAWATI DEVI 123, JHARKHANDI FAIZABAD V. THE INCOME TAX OFFICER I FAIZABAD PAN: ACOPD5057C (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. SAGIR AHMED, ADVOCATE RESPONDENT BY: SHRI. PRAVEEN KUMAR, CIT (DR) DATE OF HEARING: 18.05.2012 DATE OF PRONOUNCEMENT: 26.06.2012 O R D E R PER S U NIL KUMAR YADAV : THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) CONFIRMING THE PENALTY OF ` 15,000 UNDER SECTION 221(1) OF THE INCOME - TAX ACT, 1961 (HEREINAFTER REFERRED IN SHORT THE ACT) FOR DEMAND O N ASSESSED TAX OF ` 1,22 ,912. 2 . DURING THE COURSE OF HEARING OF THE APPEAL, THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE FACT THAT THE ASSESSMENT ORDER UNDER SECTION 143(3) OF THE ACT WAS PASSED ON 4.12.2007 ASSESSING THE TOTAL INCOME AT ` 3,53,910 AND CONSEQUEN TLY RAISING A DEMAND OF ` 1,22,912. ON 10.1.2008 THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A) AGAINST THE AFORESAID ASSESSMENT ORDER. IN THE MEANTIME, T HE ASSESSING OFFICER ISSUED A SHOW CAUSE NOTICE UNDER SECTION 221(1) OF THE ACT ON 17.7.2008 RAIS ING A DEMAND OF ` 1,22,912 AND FIXED THE DATE OF HEARING ON 29.8.2008 . ON 29.7.2008 THE ASSESSEE FILED AN APPLICATION : - 2 - : BEFORE THE ASSESSING OFFICER STATING THEREIN THAT THE ASSESSEE HAS FILED AN APPEAL BEFORE THE LD. CIT(A) AGAINST THE ASSESSMENT ORDER DATE D 4.12.2007 AND THERE IS EVERY LIKELIHOOD OF HIS SUCCESS AS THE ISSUE IS COVERED BY THE ORDER OF THE LD. CIT(A) IN THE CASE OF SMT. UMA DEVI. THE ASSESSEE ALSO MADE A REQUEST TO THE ASSESSING OFFICER EITHER TO STAY THE PENALTY PROCEEDINGS TILL DISPOSAL OF THE APPEAL BY THE LD. CIT(A) OR NO PENALTY SHOULD BE IMPOSED UNDER SECTION 221(1) OF THE ACT. BUT THE ASSESSING OFFICER DID NOT STAY THE PROCEEDINGS AND LEVIED PENALTY UNDER SECTION 221(1) OF THE ACT FOR ` 15,000 VIDE HIS ORDER DATED 24.10.2008, AGAINST W HICH AN APPEAL WAS FILED BEFORE THE LD. CIT(A) , BUT THE ASSESSEE DID NOT FIND FAVOUR WITH THE LD. CIT(A) AND THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 3 . THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER CONTENDED THAT IN QUANTUM APPEAL, THE ASSESSEE GOT PA RT RELIEF FROM THE LD. CIT(A) AND WHILE GIVING EFFECT TO THE ORDER OF THE LD. CIT(A), NO DEMAND WAS RAISED FROM THE ASSESSEE , R ATHER THERE WAS A REFUND OF ` 1,856. THE COP IES OF THE DEMAND NOTICE, APPLICATION DATED 29.7.2008 MOVED BY THE ASSESSEE BEFORE TH E ASSESSING OFFICER , ORDER OF THE LD. CIT(A) IN QUANTUM PROCEEDINGS AND CONSEQUENTIAL EFFECT ORDER OF THE ASSESSING OFFICER ARE PLACED ON RECORD. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT SINCE NO DEMAND AGAINST THE ASSESSEE SUBSISTS, NO PENALTY UNDER SECTION 221(1) OF THE ACT IS LEVIABLE AGAINST THE ASSESSEE. THER E FORE, PENALTY IMPOSED UNDER SECTION 221(1) OF THE ACT AGAINST THE ASSESSEE DESERVES TO BE DELETED. 4 . THE LD. D.R., ON THE OTHER HAND, HAS PLACED RELIANCE UPON THE ORDER OF THE LD. CIT(A ). 5 . HAVING GIVEN A THOUGHTFUL CONSIDERATION TO THE RIVAL SUBMISSIONS IN THE LIGHT OF MATERIAL PLACED ON RECORD, WE FIND THAT ONCE THE ASSESSEE HAS FILED AN APPEAL BEFORE THE LD. CIT(A), THE ASSESSING OFFICER SHOULD HAVE WAITED FOR DISPOSAL OF THE APPEAL INS TEAD OF IMPOSING PENALTY UNDER SECTION 221(1) OF THE ACT. MOREOVER , CONSEQUENT TO THE ORDER OF THE LD. CIT(A) IN QUANTUM PROCEEDINGS , NO DEMAND EXISTS AGAINST THE ASSESSEE. UNDER THESE CIRCUMSTANCES , PENALTY UNDER SECTION 221(1) OF THE ACT CANNOT BE LEVI ED IN VIEW SECTION 221 OF : - 3 - : THE ACT AS THE PENALTY DOES NOT EXCEED THE AMOUNT OF TAX IN ARREARS. WE, THEREFORE, DELETE THE PENALTY LEVIED UNDER SECTION 221(1) OF THE ACT. 6 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN C OURT ON 26.6.2012. SD/ - SD/ - [ S. V. MEHROTRA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 26.6.2012 JJ: 0506 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR