N.Shanmugha Sundaram, CHENNAI V. ITO, Coimbatore

ITA 653/CHNY/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8113 (ITAT-CHENNAI)
• Duration Of Justice: 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2017
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 18-03-2016
• Court: TRIBUNAL
• Department Lawyers: SHIVA SRINIVAS
• Assessee Lawyers: J BALACHANDER
• Keywords: Business income
• Section: 143(3); 63

Judgement Text

, , IN THE INCOME - TAX APPELLATE TRIBUNAL A BENCH, CHENNAI , . , BEFORE SHRI CHANDRA POOJARI , ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY , JUDICIAL MEMBER ./ I.T.A.NO. 653 /MDS/2016 / ASSESSMENT YEAR :20 09 - 1 0 SHRI N. SHANMUGHA SUNDARAM, 30, NELLITHURAI ROAD, METTUPALAYAM 641 301. [PAN: A RBPS4097F ] VS. THE INCOME TAX OFFICER , WARD V (1) , C OIMBATORE . ( / APP ELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI J. BALACHANDER , C.A. / RESPONDENT BY : S HRI S HIVA SRINIVAS , J CIT / DATE OF HEARING : 1 0 . 1 1 .201 6 / DATE OF P RONOUNC EMENT : 06 . 01 .201 7 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : TH I S APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMIS SIONER OF INCOME TAX (APPEALS) 3 , COIMBATORE DATED 3 1 . 12 .201 5 RELEVANT TO THE ASSESSMENT YE AR 20 09 - 1 0 . THE ASSESSEE HAS RAISED MANY GROUNDS IN ITS APPEAL, BUT THE MAIN ISSUE IS WITH REGARD TO CONFIRMATION OF PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 [ ACT IN SHORT]. I.T.A. NO . 653 / M/ 1 6 2 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND WHOLESALE TRADER IN VEGETABLES. HE FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 20 09 - 1 0 ON 29 .0 9 .20 09 ADMITTING TOTAL INCOME OF . 4,45,290 / - . THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT WAS COMPLETED ON 2 7 . 12 .201 1 ASSESSING THE INCOME OF THE ASSESSEE AT . 1,29,81,870 / - . ON APPEAL, THE LD. CIT(A) CONFIRMED THE ORDER OF THE ASSESSING OFFICER. 3. SUBSE QUENTLY, THE ASSESSING OFFICER INITIATED PROCEEDINGS UNDER SECTION 271 (1)(C) OF THE ACT AND LEVIED PENALTY OF . 57,29,980 / - . AGAINST THE PENALTY ORDER, THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A), WHICH WAS CONFIRMED BY THE LD. CIT(A). ON BEING AGGR IEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4. ON BEING AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. BY RELYING ON THE DECISION IN THE CASE OF RELIANCE INDUSTRIES LTD. 322 ITR 158(SC), THE LD. COUNSEL FOR THE ASSESSEE HAS PLEADED THAT THE PENALTY LEVIED UNDER SECTION 271 (1)(C) OF THE ACT SHOULD BE DELETED. ON THE OTHER HAND, THE LD. DR STRONGLY SUPPORTED THE ORDER PASSED BY THE AUTHORITIES BELOW. 5. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IN T HE ASSESSMENT ORDER UNDER I.T.A. NO . 653 / M/ 1 6 3 SECTION 143(3) OF THE ACT PASSED ON 2 7 . 12 .201 1, THE ASSESSING OFFICER HAS MADE ADDITION OF .1,07,04,700/ - ON ACCOUNT OF PROFIT ON SALE OF LAND AS BUSINESS INCOME AND ADDITION TOWARDS LOW GROSS PRO FIT AMOUNTING TO .17,31,880/ - . AGAINST THE ORDER OF THE LD. CIT(A), THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) AND THE LD. CIT(A) CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. AGAINST THE QUANTUM ADDITION, THE ASSESSEE PREFERRED AN APP EAL BEFORE THE TRIBUNAL AND THE TRIBUNAL VIDE ITS ORDER IN I.T.A. NO. 2191/MDS/2015 DATED 12.05.2016, SET ASIDE THE ORDER OF THE LD. CIT(A) ON THE ISSUE OF ADDITION OF .1,07,04,700/ - AND REMITTED THE MATTER BACK TO THE ASSESSING OFFICER TO DECIDE THE ISSU E AFRESH. THUS, THE QUANTUM ADDITION MADE BY THE ASSESSING OFFICER DID NOT ATTAIN FINALITY AND THE ASSESSING OFFICER IS REQUIRED TO DO THE ASSESSMENT AFRESH . AS SUCH, AGAINST THE PENALTY ORDER WITH REGARD TO THE ADDITION OF .1,07,04,700/ - , THERE EXISTS NO ASSESSMENT. UNDER THE ABOVE FACTS AND CIRCUMSTANCES, WE ARE OF THE CONSIDERED OPINION THAT WHEN THE COORDINATE BENCH OF THE TRIBUNAL HAS REMITTED THE MATTER [QUANTUM ADDITION OF .1,07,04,700/ - ] FOR FRESH CONSIDERATION VIDE ITS ORDER DATED 1 2.0 5.2016 IN I .T.A. NO. 2 191 /MDS/2016 FOR THE ASSESSMENT YEAR UNDER CONSIDERATION, THE TRIBUNAL CANNOT DECIDE THE LEVY OF PENALTY ON MERITS. OUR VIEW IS FORTIFIED BY THE DECISION OF THE HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. RAMAKRISHNA SONS (P) LTD. 19 2 ITR 282. ACCORDINGLY, THE PENALTY ORDER PASSED UNDER SECTION 271 (1)(C) OF THE ACT DATED 26.03.2014 STAND S QUASHED. HOWEVER, THE ASSESSING I.T.A. NO . 653 / M/ 1 6 4 OFFICER IS FREE TO INITIATE PENALTY PROCEEDINGS AFRESH AFTER COMPLETING THE ASSESSMENT. 6 . IN THE RESULT, THE APPE AL FILED BY THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED ON THE 06 TH JANUARY , 201 7 AT CHENNAI. SD/ - SD/ - (CHANDRA POOJARI) ACCOUNTANT MEMBER ( DUVVURU RL REDDY ) JUDICIAL MEMBER CHENNAI, DATED, THE 06 . 0 1 .201 7 VM/ - / COPY TO: 1. / APPELLANT , 2. / RESPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.