RAM BABURAO SALVE, MUMBAI V. ITO WD 13(2)(1), MUMBAI

ITA 7435/MUM/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4853 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 19-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ANJARIA
• Keywords: Opportunity of being heard
• Section: 263; 271(1)(c); 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, AM AND SHRI SANDEEP GOSIAN, JM ITA NO. 7435/ MUM/ 2016 (ASSESSMENT YEAR: 2011 - 12 ) SHRI RAM BABURAO SALVE 17/18, VYAPAR BHUVAN P. DMELLO ROAD, CARNAC BUNDER, MUMBAI - 400 009 VS. ITO, WARD 13(2)(1), AAYKAR BHAVAN, M. K. MARG, MUMBAI - 400 020 PAN/GIR NO. AACPS 5498 L ( APPELLANT ) : ( RESPONDENT ) APPELLANT BY : NONE RESPONDENT BY : SHRI CHAITANYA ANJARIA DATE OF HEARING : 06.12.2018 DATE OF PRONOUNCEMENT : 13.02 .2019 O R D E R PER SHAMIM YAHYA, A. M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 28, MUMBAI (LD.CIT(A) FOR SHORT) DATED 05.10.2016 AND PERTAINS TO THE ASSESSMENT YEAR (A.Y.) 2011 - 12. 2. THE GROUNDS OF APPEAL READ AS UNDER: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE REJECTION OF THE PENALTY APPEAL AND ERRED IN CONSIDERING THE HIGH QUANTUM OF PENALTY LEVIED OF RS. 50,35,656/ - ON THE INCOME ASSESSED OF RS. 25,59,430/ - UPON ON YOUR APPELLANT AND REFERRING HIS INABILITY DECIDE THE APPEAL ON THE FACT OF THAT THE ORDER U/S. 263 OF THE INCOME TAX IS EXISTING AGAINST YOUR APPELLANT IN RESPECT OF THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER AND THE SAME IS SUBJUDICE. 2. WI THOUT PREJUDICE TO THE ABOVE SUBMISSIONS YOUR APPELLANT STATES THAT THE PENALTY APPEAL HAS BEEN FORCED TO BE WITHDRAWN BY REPRESENTING THAT SINCE THE ORDER U/S. 263 IS BEING PASSED BY THE CIT CITY 17 AND THEREFORE THE FORCE OF THE PENALTY ORDER PASSED BY T HE ASSESSING OFFICES LOOSES ITS RELEVANCE BECAUSE BY VIRTUE OF THE ORDER U/S. 263 THE ASSESSING OFFICER HAS TO DECIDE THE ISSUE AGAIN AND. 3. THAT THE ID. CIT(A) 28 ERRED IN HOLDING THAT THE SAID APPEAL BECOME INFRUCTUOUS BY VIRTUE OF EXISTENCE OF THE ORDE R U/S. 263 AGAINST YOUR APPELLANT AND UPON THE SAID 2 ITA NO. 7435/MUM/2016 PROPOSITION THE AR WAS ASKED TO WITHDRAW THE SAID APPEAL OTHERWISE THE PENALTY ORDER WILL BE CONFIRMED AND SAME WILL BE PASSED AGAINST YOUR APPELLANT. 4. IN THE FACTS, CIRCUMSTANCES AND IN LAW YOUR APPELL ANT THEREFORE RESPECTFULLY SUBMITS AND DECIDED THE ISSUE ON THE FOLLOWING NAMELY. A. WHETHER THE OBJECTIONS RAISED IN THE GROUNDS OF APPEAL HAD NO VALUE AT ALL AND OR OF NO RELEVANCE? B. WHETHER THE FORCE AND OF EFFECT OF THE ODDER PASSED U/S. 263 IN TH E CASE OF YOUR APPELLANT IS CORRECT OR NOT IN OTHER WORDS THE EXISTENCE OF ORDER U/S. 263 EFFECTS THE ENTITY OF PENALTY APPEAL? 5. IN THE FACTS, CIRCUMSTANCES AND IN LAW YOUR APPELLANT THEREFORE RESPECTFULLY SUBMITS THAT THE ORDER PASSED BY THE CIT(A) 28 CONFIRMING THE PENALTY ORDER PASSED BY THE ASSESSING OFFICER MAY PLEASE BE CANCELLED AND THE SAME MAY PLEASE BE RESTORED BACK TO THE CIT(A) 28 IN ORDER TO GIVE THE FRESH OPPORTUNITY IN RESPECT ON MERITS. 3. BRIEF FACTS OF THE CASE NOTED BY THE LD. C IT(A) ARE AS UNDER: THE PRESENT APPEAL ARISES OUT OF THE ORDER U/S. 271(1)(C) OF THE ACT DATED 22.09.2014 PASSED BY THE ITO - 13(2)(1), MUMBAI. THE ASSESSEE FILED RETURN OF INCOME ON 23/11/2011 DECLARING A TOTAL INCOME OF RS.13,15,310/ - AGAINST WHICH THE IN COME WAS ASSESSED AT RS.25,59,430/ - . SUBSEQUENTLY PENALTY PROCEEDINGS U/S.271(L)(C) OF THE I.T. ACT, 1961 WERE INITIATED AND PENALTY OF RS.50,35,656/ - WAS LEVIED BY THE AO. 4. THE LD. CIT(A) NOTED FURTHER THAT T HE QUANTUM APPEAL IN RELATION TO WHICH THIS PENALTY WAS LEVIED BECAME SUBJECT MATTER OF ACTION U/S.263. THE ORDER HAS SINCE BEEN PASSED AND IS PENDING FOR DECISION OF AO U/S. 1 43(3)/263. MEANWHILE 263 ORDER IS ITSELF UNDER CHALLENGE BEFORE HON'BLE ITAT. 5. CONSIDERING THE ABOVE, THE LD. CIT(A) HEL D THAT T HE PRESENT APPEAL THUS LOSES ITS RELEVANCE BECAUSE AO NOW HAS TO PASS A FRESH ORDER IN PURSUANCE OF 263 ORDER AND DECIDE THE ISSUE AGAIN AS WELL AS RE COMPUTE THE PENALTY IF NECESSARY. HE NOTED THAT T HE AR PROPOSED ACCORDINGLY TO WITHDRAW/NOT PRESS THE APPEAL (SINCE ISSUE IS TO BE DECIDED AFRESH). 3 ITA NO. 7435/MUM/2016 HE HELD THAT A CCORDINGLY THIS APPEAL, WITHOUT ANY COMMENT ON MERIT OF THE ISSUE, IS DISMISSED AS INFRUCTUOUS FOR STATISTICAL PURPOSES. 6. AGAINST THE ABOVE ORDER, THE ASSESSEE IS IN APPEAL BEFORE US. 7. NONE APPEARED FOR AND ON BEHALF OF THE ASSESSEE DESPITE NOTICE SENT. THE NOTICE SENT HAS RETURNED UNSERVED. HENCE, WE PROCEEDED TO ADJUDICATE THE ISSUE BY HEARING THE LD. DEPARTMENTAL REPRESENTATIVE AND PERUSING THE RECORDS. 8. WE FIND THAT THE LD. C IT( A) HAS NOT DECIDED THE APPEAL ON THE GROUND THAT SECTION 263 ORDER HAS BEEN PASSED IN THIS CASE AND THE MATTER IS UNDER CHALLENGE BEFORE THE ITAT. WE DO NOT FIND ANY REASON AS TO WHY IN SUCH CIRCUMSTANCES, THE LD. CIT(A) SHALL REFRAIN FROM DECIDING THE MER ITS OF THE APPEAL BEFORE HIM WHICH RELATES TO SEC. 143(3) ORDER PASSED . IT CANNOT BE SAID THAT THIS APPEAL HAS L OST ITS RELEVANCE IF A N ORDER U/S. 263 IS PASSED BY THE LD. CIT ON TH E ORIGINAL ASSESSMENT ORDER. THE APPEAL AGAINST THE ORDER U/S. 263 WILL TAKE ITS NATURAL COURSE BEFORE THE APPELLATE FORUMS. IT BY NO MEANS OBVIATES APPELLATE PROCEEDINGS BEFORE THE PRESENT LD. CIT(A). THE ASSESSEE IS AGGRIEVED BY THIS ACTION OF THE LD.CIT(A). 9 . ACCORDINGLY , WE REMIT THIS ISSUE TO THE FILE OF THE LD. CIT(A) . TH E LD. CIT(A) SHALL CONSIDER THE ISSUE AFRESH AND PASS A SPEAKING ORDER ON THIS ISSUE, AFTER GIVING THE ASSESSEE PROPER OPPORTUNITY OF BEING HEARD. 10 . IN THE RESULT, THIS APPEAL BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 1 3 . 0 2 . 2 0 1 9 S D / - S D / - ( SANDEEP GOSAIN ) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 1 3 . 0 2 . 2 0 1 9 ROSHANI , SR. PS 4 ITA NO. 7435/MUM/2016 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT - CONCERNED 5. DR, ITAT, MUMBAI 6. GUARD FILE BY ORDER, (DY./ASSTT. REGISTRAR) ITAT, MUMBAI