M/s Sujata Engineering Works, JAMNAGAR V. The Assistant Commissioner of Income Tax, Circle-2, JAMNAGAR

ITA 662/RJT/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7342 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 04-01-2011
• Assessment Year: 2000-2001
• Appeal Filed On: 02-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Assessee Lawyers: DR ADHIA
• Keywords: Reasonable cause
• Section: 273B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT BEFORE SHRI A.L. GEHLOT (AM) AND SHRI N.R.S. GANESA N (JM) I.T.A. NO.662/RJT/2010 (ASSESSMENT YEAR 2000-01) M/S SUJATA ENGINEERING WORKS VS THE ACIT, CIR.2 RAMTIRTH NAGAR JAMNAGAR NEAR HINGRAJ MANDIR RAJKOT HIGHWAY (HAPA) JAMNAGAR PAN : AAIFS9631F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI DR ADHIA RESPONDENT BY : SHRI AVINASH KUMAR O R D E R PER N.R.S. GANESAN, JM BEING AGGRIEVED BY THE ORDER OF THE CIT(A) DATED 0 1-12-2009 CONFIRMING THE PENALTY LEVIED BY THE ASSESSING OFFICER U/S 271(1)( C) FOR THE ASSESSMENT YEAR 2000-01, THE ASSESSEE HAS FILED THE APPEAL BEFORE THIS TRIBU NAL. 2. SHRI DR ADHIA, THE LEARNED REPRESENTATIVE FOR TH E ASSESSEE SUBMITTED THAT DURING THE PENDENCY OF THE APPEAL IN RESPECT OF QUANTUM BE FORE THIS TRIBUNAL, THE ASSESSEE REQUESTED THE ASSESSING OFFICER TO KEEP THE PENALTY PROCEEDINGS IN ABEYANCE. EVEN THOUGH THE ASSESSING OFFICER KEPT THE PENALTY PROCE EDINGS IN ABEYANCE DURING PENDENCY OF THE APPEAL BEFORE CIT(A) HE PROCEEDED TO LEVY PE NALTY WITHOUT GIVING ANY OPPORTUNITY TO THE ASSESSEE. REFERRING TO PARAGRAPH 5 OF THE P ENALTY ORDER, THE LEARNED REPRESENTATIVE OF THE ASSESSEE SUBMITTED THAT THE A SSESSING OFFICER HAS NOT GIVEN ANY OPPORTUNITY TO THE ASSESSEE TO SUBMIT ITS EXPLANATI ON, THEREFORE, THE PENALTY ORDER NEEDS TO BE SET ASIDE. THE LEARNED REPRESENTATIVE PLACED HIS RELIANCE ON THE JUDGMENT OF THE CALCUTTA HIGH COURT IN TARAKNATH GUPTA VS CIT 166 I TR 468 (CAL). ON A QUERY FROM THE BENCH WHETHER THE ASSESSEE HAS ANY OBJECTION TO REM IT BACK THE MATTER TO THE ASSESSING OFFICER FOR RECONSIDERATION AFTER GIVING OPPORTUNIT Y TO THE ASSESSEE LEARNED REPRESENTATIVE FAIRLY SUBMITTED THAT HE HAS NO OBJECTION FOR REMIT TING THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR RECONSIDERATION. ITA NO.662/RJT/2010 2 3. WE HAVE HEARD SHRI AVINASH KUMAR, THE DEPARTMENT AL REPRESENTATIVE. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT HE IS PLACING RELIANCE ON THE ORDER OF CIT(A) AND THE ASSESSING OFFICER. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNE D REPRESENTATIVE OF THE ASSESSEE AND THE LEARNED DEPARTMENTAL REPRESENTATIV E. DURING THE PENDENCY OF THE APPEAL BEFORE THE CIT(A), THE ASSESSEE APPEARS TO H AVE REQUESTED THE ASSESSING OFFICER TO KEEP PENALTY PROCEEDINGS IN ABEYANCE. A SIMILAR SUBMISSION IN RESPECT OF QUANTUM APPEAL PENDING BEFORE THIS TRIBUNAL WAS ALSO MADE. HOWEVER, IN VIEW OF THE LIMITATION PROVIDED U/S 275 OF THE ACT, THE ASSESSING OFFICER PROCEEDED FURTHER AND LEVIED THE PENALTY. AS RIGHTLY SUBMITTED BY LEARNED REPRESENT ATIVE FOR THE ASSESSEE, NO FURTHER OPPORTUNITY WAS ALLOWED TO THE ASSESSEE TO EXPLAIN HIS CASE. THE ASSESSING OFFICER HAS TO FIND OUT THE REASONABLE CAUSE AS PROVIDED IN SEC TION 273B OF THE ACT BEFORE LEVYING THE PENALTY. THEREFORE, IN OUR OPINION, PROPER OPP ORTUNITY HAS TO BE GIVEN TO THE ASSESSEE TO FILE HIS EXPLANATION IN RESPECT OF QUAN TUM ADDITION CONFIRMED BY THIS TRIBUNAL. SINCE THE ASSESSEE HAD NO SUCH OPPORTUNI TY TO EXPLAIN HIS CASE BEFORE THE ASSESSING OFFICER, IN OUR OPINION, THE ASSESSING OF FICER SHALL HAVE TO RECONSIDER THE ISSUE AFTER GIVING PROPER OPPORTUNITY. IN FACT, THE LEAR NED REPRESENTATIVE OF THE ASSESSEE HAS NO OBJECTION FOR REMITTING THE MATTER BACK TO THE F ILE OF THE ASSESSING OFFICER. ACCORDINGLY WE SET ASIDE THE MATTER TO THE FILE OF THE ASSESSIN G OFFICER AND DIRECT HIM TO RECONSIDER THE LEVY OF PENALTY. THE ASSESSING OFFICER SHALL G IVE NECESSARY OPPORTUNITY TO THE ASSESSEE TO FILE THE EXPLANATION AND THEREAFTER DEC IDE THE ISSUE OF LEVY OF PENALTY IN ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTU NITY OF HEARING TO THE ASSESSEE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED , FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 25-02-2011. SD/- SD/- (A.L. GEHLOT) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DT : 25 TH FEBRUARY, 2011 PK/- ITA NO.662/RJT/2010 3 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A), JAMNAGAR 4. THE CIT, JAMNAGAR 5. THE DR (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, RAJKOT