Shri Shibbahadur S Yadav, Raigad V. Addl CIT Rg Panvel., Panvel

ITA 715/PUN/2012

• Counselvise Citation: 71524514 RSA 2012
• Duration Of Justice: 1 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-10-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 03-10-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 10-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K OJHA
• Assessee Lawyers: S M BANDI
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI R. K. PANDA, ACCOUNTANT MEMBER ITA NO.715/PN/2012 (ASSESSMENT YEAR : 2008-09) SHRI SHIVBAHADUR S. YADAV FLAT NO. B-105, EVEREST RESIDENCY, PLOT 1, SECTOR 4, KALAMBOLI, DISTRICT RAIGAD. PAN : ABFPY1321A . APPELLANT VS. ADDL. COMMISSIONER OF INCOME TAX PANVEL RANGE, PANVEL . RESPONDENT APPELLANT BY : MR. S. M. BANDI RESPONDENT BY : MR. K. K. OJHA DATE OF HEARING : 03-10-2013 DATE OF PRONOUNCEMENT : 07-10-2013 ORDER PER SHAILENDRA KUMAR YADAV, JM THIS APPEAL HAS BEEN FILED BY ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-I , THANE ON THE FOLLOWING GROUND :- 1. THE LD. CIT(A) HAS GROSSLY ERRED IN LAW AS WELL AS ON FACTS IN CONFIRMING THE PENALTY U/S. 271D OF THE ACT, AMOUNTING TO RS.17,77,417/-. 2. LEARNED AUTHORIZED REPRESENTATIVE HAS MADE A REQ UEST FOR ADMITTING ADDITIONAL EVIDENCES PLACED AT SR. NO . 4 TO 12 OF THE PAPER BOOK FILED BY ASSESSEE. LEARNED AUTHOR IZED REPRESENTATIVE SUBMITTED THAT DUE TO INADVERTENT MI STAKE OF THE ACCOUNTANT AND AUTHORIZED REPRESENTATIVE OF ASS ESSEE, ITA NO.715/PN/2012 A.Y. 2008-09 THE SAID ADDITIONAL EVIDENCES COULD NOT BE FILED BE FORE THE LOWER AUTHORITIES. THE STAND OF ASSESSEE IS THAT PE NALTY PROCEEDINGS HAS BEEN INITIATED IN THE HANDS OF THE ASSESSEE WHILE AT THE RELEVANT POINT OF TIME, ASSESSEE WAS O NE OF THE PARTNER IN M/S S.B. STEELS. HE HAS ALSO PLACED A CO PY OF THE PARTNERSHIP DEED DATED 10.09.2007 OF SAID M/S S.B. STEELS AT PAGES 28 TO 32 OF THE PAPER BOOK TO ESTABLISH TH AT ASSESSEE HAS ENTERED THE SAID PARTNERSHIP DEED ALON GWITH SHIVBAHADUR SHREENATH YADAV. SO, BOTH ASSESSEE AND HIS PARTNER WERE JOINTLY AND SEVERALLY LIABLE FOR ACT O F THE M/S S.B. STEELS. THE SAID PARTNERSHIP DATED 10.09.2007 WAS DISSOLVED VIDE DISSOLUTION DEED DATED 26.11.2007, W HICH HAS BEEN PLACED AT PAGES 32 TO 37 OF THE PAPER BOOK . IN THIS BACKGROUND, LEARNED AUTHORIZED REPRESENTATIVE SUBMI TTED THAT THESE ADDITIONAL EVIDENCES WHICH COULD NOT BE FILED BEFORE THE LOWER AUTHORITIES AT THE RELEVANT POINT OF TIME. SIMILARLY OTHER DOCUMENTS COULD NOT BE FILED AT REL EVANT POINT OF TIME BUT THOSE ARE IMPORTANT FOR ADJUDICAT ION OF ISSUE AT HAND AS THESE GO TO THE ROOT OF THE MATTER . ACCORDINGLY IT WAS REQUESTED THAT ADDITIONAL EVIDEN CES PLACED AT SR. NO. 4 TO 12 OF THE PAPER BOOK BE ADMI TTED. 3. LEARNED DEPARTMENTAL REPRESENTATIVE COULD NOT DISPROVE THE FACT THAT THERE WAS EXISTENCE OF PARTN ERSHIP DEED DATED 10.09.2007 BUT OPPOSED THE ADMISSION OF ADDITIONAL EVIDENCES ON THE GROUND THAT WHY THEY CO ULD NOT ITA NO.715/PN/2012 A.Y. 2008-09 SUBMITTED BEFORE THE LOWER AUTHORITIES AT THE RELEV ANT POINT OF TIME. 4. AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND M ATERIAL ON RECORD, WE FIND THAT THE ISSUE BEFORE US IS PENA LTY UNDER THE PROVISIONS OF SECTION 271D OF THE ACT. THE STAN D OF THE ASSESSEE IS THAT HE IS JOINTLY AND SEVERALLY LIABLE FOR PENALTY UNDER SECTION 271D OF THE ACT BEING ONE OF THE PART NER OF M/S S.B. STEELS AT RELEVANT POINT OF TIME AS DISCUS SED ABOVE. THE SAID PARTNERSHIP DEED WAS DISSOLVED VIDE DISSOL UTION DEED DATED 26.11.2007. IT SHOWS THAT AT RELEVANT PO INT OF TIME THERE WAS EXISTENCE OF PARTNERSHIP M/S S.B. ST EELS HAVING ASSESSEE ALONG WITH SHIVBAHADUR SHREENATH YA DAV ARE PARTNER OF SAID FIRM. IT IS SETTLED LEGAL POSIT ION THAT PARTNERS ARE JOINTLY AND SEVERALLY LIABLE FOR ANY L IABILITY OF THE FIRM. AGREEING TO THE CONTENTION OF ASSESSEE THAT A DDITIONAL EVIDENCES COULD NOT BE FILED FOR ADMISSION FOR REAS ONS DISCUSSED ABOVE. BUT THESE ADDITIONAL EVIDENCES GO TO THE ROOT OF THE ISSUE, AND SO IN THE INTEREST OF JUSTIC E, WE ADMIT THESE ADDITIONAL EVIDENCES. SINCE THE LOWER AUTHORI TIES WERE NOT HAVING ADVANTAGE OF THESE ADDITIONAL EVIDENCES, SO WE RESTORE THE ISSUE TO FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO DECIDE THE ISSUE AT HAND AFTER CONSIDE RATION OF THESE ADDITIONAL EVIDENCES AND AFTER PROVIDING DUE OPPORTUNITY TO THE CONCERNED PARTIES. SINCE WE ARE SETTING- ASIDE THE ISSUE ON PRELIMINARY ISSUE ITSELF, WE REF RAIN TO ITA NO.715/PN/2012 A.Y. 2008-09 COMMENT ON MERIT OF ISSUE AT HAND. ACCORDINGLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS THE 07 TH DAY OF OCTOBER, 2013. SD/- SD/- (R. K. PANDA) (SHAILENDRA KUMA R YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED : 07 TH OCTOBER, 2013 SUJEET COPY OF THE ORDER IS FORWARDED TO: - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-I, THANE; 4) THE CIT-I, THANE; 5) THE DR, B BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY I.T.A.T., PUNE