DCIT, CIR-3(1), Siliguri, Darjeeling V. Darjeeling District Central Co-operative Bank Ltd., Darjeeling

ITA 650/KOL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1649 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-08-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 18-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAURABH KUMAR CIT LD
• Assessee Lawyers: N C MONDAL FCA LD
• Keywords: Additional evidence
• Section: 2

Judgement Text

1 ITA NOS. 650 TO 653/KOL/15 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA BEFORE: SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUD ICIAL MEMBER I.T.A NO. 650 TO 653/KO L/2015 A.YS: 2007-08 TO 20 10-11 D.C.I.T, CIR-3(1), SILIGURI VS. DARJEELING DISTRI CT CENTRAL CO-OPERATIVE BANK LTD. PAN:AAALD 0261C [APPELLANT] [RESPONDENT] FOR THE APPELLANT : SHRI SAURABH KUMAR, ADDL. CIT, LD.DR FOR THE RESPONDENT : SHRI N.C.MONDAL, FCA, LD.A R DATE OF HEARING : 12-07-2017 DATE OF PRONOUNCEMENT : 25-08-2017 ORDER SHRI S.S.VISWANETHRA RAVI, JM: THESE FOUR APPEALS BY THE REVENUE ARE DIRECTED AGAI NST THE COMMON ORDER OF THE COMMISSIONER OF INCOME TAX (AP PEALS), SILIGURI ALL DT. 17-03-2015 FOR THE A.YS 2007-08, 08-09, 09 -10 & 10-11, WHEREIN HE DELETED THE PENALTIES OF RS.15,35,370 (A .Y 2007-08), RS. 7,49,270 (A.Y 2008-09), RS.50,70,250 (A.Y 2009-10) AND RS.19,77,226 (A.Y 2010-11) IMPOSED BY THE AO U/S. 2 71(1) ( C ) OF THE ACT. 2. AT THE OUTSET, THE LD.AR OF THE ASSESSEE SUBMIT S THAT THIS TRIBUNAL REMANDED THE ISSUE(S) RAISED IN THE QUANTU M APPEALS VIDE ORDER DT. 16-09-2016 IN ITA NOS. 87 TO 90/KOL/2014 FOR THE A.YS 2007-08 TO 2010-11 IN ASSESSEES OWN CASE SUPRA UNDER CONSIDERATION AND COPY OF THE SAME PLACED ON RECORD AND REFERRED TO PARA 4 OF THE ORDER DT. 16-09-2016. IN SUPPORT OF T HE CONTENTION, HE FURTHER ARGUED THAT WHEN THE ISSUE(S) IN THE QUANTU M APPEALS WERE 2 ITA NOS. 650 TO 653/KOL/15 RESTORED TO THE FILE OF THE AO FOR FRESH ADJUDICATI ON, THEN THE PENALTY IMPOSED ON THE SAME ISSUE DOES NOT ARISE AT ALL. 3. ON THE OTHER HAND, THE LD. DR RELIED ON THE ORDE RS OF THE AO IN IMPOSING THE IMPUGNED PENALTIES U/S. 271(1) ( C ) O F THE ACT. BUT, HE COULD NOT CONTROVERT THE SUBMISSIONS OF THE LD.AR O F THE ASSESSEE. 4. HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIA L ON RECORD. WE FIND THAT THE REVENUE FILED THESE BATCH OF FOUR (4) APPEALS IN ITA NOS. 87 TO 90/KOL/2014 FOR THE A.YS 2007-08 TO 2010 -11 CHALLENGING THE ACTION OF THE CIT-A IN ACCEPTING THE SUBMISSION S OF ASSESSEE WITHOUT SEEKING REMAND REPORT FROM THE AO. WE NOTE THAT IN QUANTUM APPEALS THE TRIBUNAL VIDE ORDER DT. 16-09-2016 REST ORED THE ISSUE TO THE FILE OF AO FOR FRESH ADJUDICATION AS PER LAW. R ELEVANT PORTION OF FINDING OF THE TRIBUNAL ORDER DT. 16-09-2016 IN ITA NOS. 87 TO 90/KOL/2014 FOR A.YS. 2007-08 TO 2010-11 IS REPRODU CED HEREIN BELOW:- 4. WE HAVE HEARD THE ID, DR AND PERUSED THE MATER IALS AVAILABLE ON RECORD. FROM THE PERUSAL OF THE FACTS WE FIND THAT THE LD, CIT(A) HA S PASSED ALL ORDER ALTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE ALONG WITH THE REVISED GROUNDS OF APPEAL DATED 4 TH DECEMBER. 2013. BUT NO REMAND REPORT WAS CALLED FOR FROM THE AO. IT IS ALSO EVIDENT FROM THE ORDER OF LD. CIT(A) WHICH WAS PASSED ON 5 TH DECEMBER. 2013 AND THE SUBMISSION ALONG WITH THE REVISED GROUNDS OF APPEAL WAS MADE BY THE ASSESSEE ON DATED 4 TH DECEMBER, 2013. FROM THE ABOVE DISCUSSION WE HOLD THAT THE LD. CIT(A)HAS PASSED THE IMPUGNED ORDER WITHOUT TAKING THE REMAND REPORT . THIS ACTION OF THE LD. CIT(A) IS IN VIOLATION OF THE PROVISION OF RULE 46A OF THE INCOM E TAX RULES WHICH READ AS UNDER :- 'PRODUCTION OF ADDITIONAL EVIDENCE BEFORE THE DEPUT Y COMMISSIONER (APPEALS) AND COMMISSION (APPEALS) 46A(1)............................................. ...... (2)........................................... ........ 3) THE' DEPUTY COMMISSIONER (APPEALS) [ OR AS THE C ASE MAY BE, THE COMMISSIONER (APPEALS) SHALL NOT TAKE INTO ACCOUNT ANY EVIDENCE PRODUCED UNDER SUB-RULE (1) UNLESS THE ASSESSING OFFICER HAS BEEN ALIA-WED A REASONABL E OPPORTUNITY - (A) TO EXAMINE THE EVIDENCE OR DOCUMENT OR 10 CROSS -EXAMINE THE WITNESS PRODUCED BY THE APPELLANT, OR (B) TO PRODUCE ANY EVIDENCE OR DOCUMENT OR ANY WITN ESS IN REBUTTAL OF THE ADDITIONAL EVIDENCE PRODUCED BY THE APPELLANT. 5. IN VIEW OF THE ABOVE PROVISION OF RULE 46A OF TH E IT RULES. 1962 WE HOLD THAT THE ID. CIT(A) HAS PASSED ORDER AGAINST THE PROVISION OF LA W. THEREFORE IN THE INTEREST OR JUSTICE AND 'FAIR PLAY WE ARE INCLINED TO RESTORE THE ISSUE TO THE FILE OF AO FOR FRESH ADJUDICATION AS PER LAW. HENCE THIS GROUND OF APPEAL OF THE REVE NUE IS ALLOWED FOR STATISTICAL PURPOSES.' 3 ITA NOS. 650 TO 653/KOL/15 5. IN VIEW OF ABOVE, WE ARE OF THE VIEW THAT WHEN T HE ISSUE INVOLVED IN THE QUANTUM APPEALS IS RESTORED TO THE FILE OF THE AO FOR FRESH ADJUDICATION BY THIS TRIBUNAL, THE PENALTIES IMPOSED U/S. 271(1) ( C ) OF THE ACT IN ALL THE APPEALS FOR THE A.YS UN DER CONSIDERATION DOES NOT ARISE AT ALL AND THE SAME ARE LIABLE TO B E DELETED. THEREFORE, WE CANCEL THE IMPUGNED PENALTIES IMPOSED U/S. 271(1 ) ( C ) OF THE ACT FOR ALL THE A.YS UNDER CONSIDERATION. 6. IN THE RESULT, ALL THE APPEALS OF THE REVENUE AR E DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 25- 08-2017 SD/- SD/- J. SUDHAKAR REDDY S.S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 25-08-2017 PP(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT/REVENUE: THE DCIT, CIR-3(1), AAYKAR BHAWA N, WING B PARIBAHAN NAGAR, MATIGARA, SILIGURI, DIST DARJEELING-734010. 2 RESPONDENT/ASSESSEE: DARJEELING DISTRICT CENTRAL CO -OPERATIVE BANK LIMITED, RISHI ROAD, KALIMPONG, DARJEELING -73 4301. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, SR.PS/H.O.O ITAT KOLKATA