Ashok M. Musale, Pune V. Deputy Commissioner of Income-tax, Circle - 8, Pune

ITA 705/PUN/2018

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 1154 (ITAT-PUNE)
• Duration Of Justice: 4 year(s) 2 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 17-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “A”, PUNE BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER AND DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER ITA No.705/PUN/2018 निर्धारण वषा / Assessment Year : 2005-06 Shri Ashok M. Musale C/o M/s. Pune Metagraph, G-113, MIDC, Bhosari, Pune – 411026 PAN : AAUPM2922P Vs. DCIT, Circle 8, Pune Appellant Respondent आदेश / ORDER PER S.S. GODARA, JM : This assessee‟s appeal for AY 2005-06 arises against the CIT(A)-6, Pune‟s order dated 15-02-2018 passed in case No. PN/CIT(A)-V/DCIT, Cir.8/192/2015-16 involving proceedings under Section 271(1)(c) of the Income Tax Act, 1961, in short „the Act‟. Case called twice. None appears at the assessee‟s behest. He is accordingly proceeded ex-parte. 2. Coming to the assessee‟s sole substantive grievance that both the learned lower authorities have erred in law and on facts in levying impugned section 271(1)(c) penalty amounting to Rs.22,13,376/- pertaining to deemed dividend addition made in quantum proceedings, Mr. Walimbe vehemently Assessee by None Revenue by Shri S.P. Walimbe Date of hearing 27-06-2022 Date of pronouncement 30-06-2022 ITA No.705/PUN/2018 Ashok M. Musale 2 supported the same by pleading that this taxpayer had failed to offer any justifiable explanation. He also quoted case law Mak Data Pvt. Ltd. vs. CIT (2013) 358 ITR 593 (SC) that such a penalty is indeed attracted on account of assessee‟s failure in filing a cogent explanation. 3. We have given our thoughtful consideration to the foregoing arguments and find no merit therein. A perusal of Assessing Officer‟s corresponding penalty show cause notice dated 28.09.2012 suggests that he had nowhere specified as to whether this taxpayer had concealed particulars of his income or furnished inaccurate particulars of such income. That being the case, we quote the hon‟ble jurisdictional high court‟s recent landmark decision in Mohd. Farhan A. Shaikh vs. ACIT (2021) 434 ITR 1 (Bom) (FB) holding that such a failure on Assessing Officer‟s part is indeed fatal to initiation of 271(1)(c) penal provision itself. We accordingly delete the impugned penalty for this precise reason alone. All other grounds on merits stand rendered academic. 4. This assessee‟s appeal is allowed in above terms. Order pronounced in the Open Court on 30 th June, 2022. Sd/- Sd/- (DIPAK P. RIPOTE) (S.S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER प ु णे Pune; ददिधांक Dated : 30 June, 2022 GCVSR ITA No.705/PUN/2018 Ashok M. Musale 3 आदेश की प्रतिलिपि अग्रेपिि/Copy of the Order is forwarded to: 1. अपीऱधर्थी / The Appellant; 2. प्रत्यर्थी / The Respondent; 3. The CIT(A)-6, Pune 4. 5. The Pr.CIT-5, Pune विभागीय प्रविविवि, आयकर अपीलीय अविकरण, पुणे “A” / DR „A‟, ITAT, Pune 6. गार्ड फाईल / Guard file आदेशान ु सार/ BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अविकरण ,पुणे / ITAT, Pune Date 1. Draft dictated on 27-06-2022 Sr.PS 2. Draft placed before author 28-06-2022 Sr.PS 3. Draft proposed & placed before the second member JM 4. Draft discussed/approved by Second Member. JM 5. Approved Draft comes to the Sr.PS/PS Sr.PS 6. Kept for pronouncement on Sr.PS 7. Date of uploading order Sr.PS 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the Head Clerk 10. Date on which file goes to the A.R. 11. Date of dispatch of Order.