M/S SHUBHALAYA VILLA, Bhopal V. THE ITO 1(1), Bhopal

ITA 667/IND/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5454 (ITAT-INDORE)
• Duration Of Justice: 5 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 15-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N D PATWA
• Assessee Lawyers: MOHD JAVED
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3)

Judgement Text

SHUBHAM VILLA ITA NOS.666 & 667/IND/2016 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE .., ..!', #$ # !% BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER I.T.A. NOS.666 & 667/IND/2016 ASSESSMENT YEARS: 2007-08 & 2009-10 SHUBHALAYA VILLA BHOPAL PAN AELPS 9945K :: APPELLANT VS ITO 1(1) BHOPAL :: RESPONDENT REVENUE BY SRI ASHISH GOYAL & SHRI ND PATWA ASSESSEE BY SHRI MOHD. JAVED ! ' #$ DATE OF HEARING 14.12.2016 %&'( #$ DATE OF PRONOUNCEMENT 14.12.2016 * O R D E R PER SHRI D.T. GARASIA, JM THE ASSESSEE HAS PREFERRED THESE APPEALS AGAINST THE CONSOLIDATED ORDER OF LEARNED CIT(A)-I, BHOPAL, CONFI RMING SHUBHAM VILLA ITA NOS.666 & 667/IND/2016 2 THE PENALTY LEVIED BY THE ASSESSING OFFICER U/S. 271 (1)(C) OF THE ACT. 2. THERE IS A DELAY OF 31 DAY IN FILING THE PRESENT APPEAL. THE ASSESSEE HAS SUBMITTED WRITTEN SUBMISSIONS MENTIONING THAT WE HAVE RECEIVED THE ORDER OF THE COMMISSIONER (APPEALS) ON16.3.2016 IN OUR CASE FOR ASSESSMENT YEAR 2007-08 & NO GUIDANCE WAS PROVIDED BY OUR PREVIOUS COUNSEL. AS SUCH THE APPEAL COULD NOT BE FILED IN TIME. ON THIS GROUND THE ASSESSEE HAS PRAYED FOR CONDONATION OF DELAY. AFTER HEARING THE PARTIES, WE CONDONE THE DELAY AND PROCEED TO DECIDE THE APPEAL ON MERITS. 3. THE BRIEF FACTS OF THE CASE ARE THAT IN THE ASSESSMENT YEAR 2007-08 THE ASSESSEE HAD FILED RETURN OF INCOME SHOWING INCOME AT NIL. THE ASSESSEE HAD CLAIMED DEDUCTI ON U/S 80IB(10) OF THE ACT AT RS.51,53,065/-. THE CASE W AS ASSESSED U/S 143(3) OF THE ACT. FOR THE ASSESSMENT Y EAR SHUBHAM VILLA ITA NOS.666 & 667/IND/2016 3 2009-10 RETURN OF INCOME WAS FILED DECLARING INCOME O F RS. 5,64,140/-. IN THE RETURN THE ASSESSEE HAD CLAIMED DEDUCTION U/S 80IB(10) OF THE ACT OF RS. 34,34,954/ -. THE ASSESSMENT WAS MADE U/S 143(3) OF THE ACT. IN BOTH TH E ASSESSMENT YEARS THE ASSESSING OFFICER DISALLOWED THE CLAIM U/S 80IB(10) OF THE ACT AND INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT ON THE GROUND THAT THE ASSESSEE HAD FURNISHED INACCURATE PARTICULARS OF INCOME TO THE EXTENT OF RS. 51,53,065/- FOR THE ASSESSMENT YEA R 2007-08 AND OF RS. 34,34,954/- FOR THE ASSESSMENT YEA R 2009-10. SO FAR AS THE DISALLOWANCE OF THE CLAIM OF THE ASSESSEE U/S 80IB(10) OF THE ACT IS CONCERNED, IT WAS CONFIRMED BY THE LEARNED CIT(A). 4. BEFORE IMPOSING THE PENALTY, THE ASSESSING OFFICER ISSUED NOTICE TO THE ASSESSEE TO SHOW AS TO WHY PENALT Y SHOULD NOT BE LEVIED AS THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME BUT NEITHER THE ASSESSE E SHUBHAM VILLA ITA NOS.666 & 667/IND/2016 4 APPEARED NOR ANY REPLY WAS FILED. THE ASSESSING OFFICER , THEREFORE, HAD NO OPTION BUT TO LEVY THE PENALTY. ACCORDINGLY PENALTY OF RS. 20,00,000/- FOR THE ASSESS MENT YEAR 2007-08 AND OF RS. 11,00,000/- FOR THE ASSESSMENT YEAR 2009-10 WAS LEVIED BY THE ASSESSING OFFICER. ON APPEAL, THE LEARNED CIT(A) ALSO SENT VARIOUS NOTICES OF HEARING, BUT NEITHER THE ASSESSEE APPEARED NOR ANY WRITT EN SUBMISSION WAS FILED. THE LEARNED CIT(A), THEREFORE, OBSERVED THAT THE APPELLANT HAS NOT BOTHERED TO OFFER ANY EXPLANATION IN REGARD TO FURNISHING OF INACCURATE P ARTICULARS OF INCOME EITHER DURING PENALTY PROCEEDINGS OR DURI NG THE APPELLATE PROCEEDINGS FOR THE APPELLANT TO PRESENT HIS CASE. HOWEVER, AS THE APPELLANT HAS FAILED TO ATTEND THE PROCEEDINGS AND GIVE HIS EXPLANATION, THEREFORE, IT IS CLEAR THAT THE APPELLANT DOES NOT HAVE ANYTHING TO SAY IN HIS DEFENCE TO CONTROVERT THE FINDINGS OF THE A.O. THE LEARNED CIT(A), THEREFORE, CONFIRMED THE PENALTY LEVIED BY T HE SHUBHAM VILLA ITA NOS.666 & 667/IND/2016 5 ASSESSING OFFICER. NOW THE ASSESSEE IS IN APPEAL BEFOR E THE TRIBUNAL. 5. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE WAS NO CONCEALMENT OF INCOME OR FURNISHED OF INACCURATE PARTICULARS OF INCOME ON THE P ART OF THE ASSESSEE. AS SUCH, THE AUTHORITIES BELOW WERE NOT JUSTIFIED IN IMPOSING AND CONFIRMING THE PENALTY. 6. ON THE OTHER HAND, THE LEARNED DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 7. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE SIDES . WE FIND THAT THE ASSESSEE DID NOT COMPLY WITH VARIOUS NOTICES ISSUED BY THE ASSESSING OFFICER AND THE LEARN ED CIT(A) TO REPRESENT HIS CASE. INSTEAD OF PROVING ITS CASE, THE ASSESSEE HAS COME UP BEFORE THE TRIBUNAL. HOWEVER , KEEPING IN VIEW THE PRINCIPLE OF NATURAL JUSTICE, IN OUR OPINION, IT WOULD BE APPROPRIATE TO GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE TO REPRESENT ITS CASE. WE , SHUBHAM VILLA ITA NOS.666 & 667/IND/2016 6 THEREFORE, SET ASIDE THE ORDERS OF THE AUTHORITIES B ELOW AND RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFI CER WITH THE DIRECTION TO DECIDE THE ISSUE AFTER PROVIDING THE ASS ESSEE AN OPPORTUNITY OF BEING HEARD. 8. IN THE RESULT, BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. THE ORDER HAS BEEN PRONOUNCED IN OPEN COURT ON 14 TH DECEMBER, 2016. SD/- SD/- ( ..!') (..) #$ (O.P.MEENA) (D.T.GARASIA) ACCOUNTANT MEMBER J UDICIAL MEMBER (') / DATED : 14 TH DECEM BER, 2016. DN/ SHUBHAM VILLA ITA NOS.666 & 667/IND/2016 7