M/s Sanjay Oil Mill, RAJKOT-GUJARAT V. The Income Tax Officer, Ward 2 (1), RAJKOT-GUJARAT

ITA 748/RJT/2010

• Counselvise Citation: 74824914 RSA 2010
• Duration Of Justice: 1 year(s) 3 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 21-06-2011
• Assessment Year: 1995-1996
• Appeal Filed On: 04-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KRISHNA PRABHAKAR
• Keywords: Period of limitation
• Section: 142(1)

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. 748/RJT/2010 (ASSESSMENT YEAR 1995-96) M/S SANJAY OIL MILL VS THE ITO, WD.2(1) JAMKANDORANA ROAD RAJKOT DHORAJI PAN : ABBFS9571Q (APPELLANT) (RESPONDENT) I.T.A. NO. 749/RJT/2010 (ASSESSMENT YEAR 1995-96) DHIRAJLAL KANJIBHAI VS THE ITO, WD.2(1) PROP OF M/S PRASHANT OIL MILL RAJKOT JUNAGADH ROAD, DHORAJI PAN : AAIFP0414H (APPELLANT) (RESPONDENT) APPELLANTS BY: WRITTEN SUBMISSIONS RESPONDENT BY: SHRI KRISHNA PRABHAKAR O R D E R PER N.R.S. GANESAN, JM BOTH THE APPEALS OF THE TWO INDEPENDENT ASSESSEES ARE DIRECTED AGAINST THE INDEPENDENT ORDERS OF CIT(A)-III, RAJKOT BOTH D ATED 17-12-2009 AND PERTAIN TO ASSESSMENT YEAR 1995-96 CONFIRMING LEVY OF PENALTY U/S 271(1)(B) OF THE ACT. SINCE COMMON ISSUE IS INVOLVED, FOR THE SAKE OF CON VENIENCE, THESE APPEALS WERE HEARD TOGETHER AND ARE DISPOSED OFF BY THIS CO MMON ORDER. 2. NONE APPEARED FOR THE ASSESSEES EVEN THOUGH NOTI CES OF HEARING WERE ISSUED. HOWEVER, THE ASSESSEES HAVE FILED WRITTEN SUBMISSIONS. THEREFORE, WE HEARD THE LD.DR AND PROCEEDED TO DISPOSE OFF THE AP PEALS ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD INCLUDING THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEES. ITA NO.748/RJT/2010 ITA NO.749/RJT/2010 2 3. SHRI KRISHNA PRABHAKAR, THE LD.DR SUBMITTED THAT BOTH THE ASSESSEES HAVE NOT COMPLIED WITH NOTICES ISSUED U/S 142(1) OF THE INCOME-TAX ACT. THEREFORE, THE ASSESSING OFFICER LEVIED PENALTY U/S 271(1)(B) OF T HE ACT. REFERRING TO THE GROUNDS OF APPEAL BEFORE THIS TRIBUNAL, THE LD.DR SUBMITTED THAT THE ASSESSEES HAVE RAISED THE ISSUE OF LIMITATION FOR THE FIRST TIME B EFORE THIS TRIBUNAL, THEREFORE, THE LOWER AUTHORITIES HAD NO OCCASION TO CONSIDER THE S AME. SINCE THE ASSESSEES HAVE NOT GIVEN ANY EXPLANATION FOR NOT COMPLYING WI TH THE NOTICES ISSUED U/S 142(1) OF THE INCOME-TAX ACT, THE LOWER AUTHORITY H AS RIGHTLY LEVIED THE PENALTY. 4. WE HAVE CONSIDERED THE SUBMISSIONS AND HAVE PERU SED THE MATERIAL AVAILABLE ON RECORD. ADMITTEDLY PENALTY WAS LEVIED U/S 271(1)(B) OF THE ACT ON THE GROUND THAT THE ASSESSEES HAVE NOT COMPLIED WITH TH E NOTICES ISSUED U/S 142(1) OF THE ACT. A BARE READING OF THE PENALTY ORDERS S HOWS THAT NO SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSEES BEFORE LEVYING PENALTY. IT IS INCUMBENT UPON THE ASSESSING OFFICER TO CALL UPON THE ASSESSEE TO SHOW CAUSE WHY PENALTY SHALL NOT BE LEVIED U/S 271(1)(B) OF THE ACT FOR NON-COMPLIAN CE OF THE NOTICE U/S 142(1) BEFORE ACTUALLY LEVYING PENALTY U/S 271(1)(B) OF TH E ACT. SUCH AN EXERCISE WAS NOT, APPEARS TO HAVE BEEN DONE BY THE ASSESSING OFF ICER FROM THE READING OF THE PENALTY ORDERS. THOUGH THE ISSUE OF LIMITATION WAS NOT RAISED BEFORE THE CIT(A) THE ASSESSEES HAVE RAISED THE ISSUE BEFORE THIS TRI BUNAL. THE QUESTION OF LIMITATION GOES TO THE ROOT OF THE MATTER. IT IS N OT NECESSARY FOR SOMEONE TO RAISE THE ISSUE OF LIMITATION. IT IS FOR THE COURT / TRI BUNAL TO SEE WHETHER THE ORDERS ARE PASSED WITHIN THE PERIOD OF LIMITATION. IN OTHER W ORDS, IT IS THE OBLIGATION ON THE PART OF THE COURT / TRIBUNAL TO IMPLEMENT THE PERIO D OF LIMITATION PRESCRIBED UNDER THE STATUTORY PROVISION. THEREFORE, THE ISSUE OF L IMITATION RAISED BY THE ASSESSEES NEEDS TO BE CONSIDERED. SINCE WE FOUND THAT NO OPP ORTUNITY WAS GIVEN TO THE ASSESSEE TO SHOW CAUSE WHY THE PENALTY SHALL NOT BE LEVIED, IN OUR OPINION, THE MATTER NEEDS TO BE CONSIDERED AFRESH BY THE ASSESSI NG OFFICER. SINCE THE MATTER IS REMANDED BACK TO THE FILE OF THE ASSESSING OFFIC ER FOR RE-CONSIDERATION THE ISSUE OF LIMITATION IS ALSO NEEDS TO BE RECONSIDERED BY T HE ASSESSING OFFICER. ITA NO.748/RJT/2010 ITA NO.749/RJT/2010 3 ACCORDINGLY, THE ORDERS OF LOWER AUTHORITIES ARE SE T ASIDE AND THE ENTIRE ISSUE IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE- CONSIDER THE ISSUE AFRESH AND DECIDE THE SAME IN AC CORDANCE WITH LAW AFTER GIVING A REASONABLE OPPORTUNITY OF HEARING TO THE A SSESSEE WITHOUT BEING INFLUENCED BY ANY OF THE OBSERVATIONS OF THIS TRIBU NAL IN THIS ORDER OR OF THE CIT(A) IN THE IMPUGNED ORDER. IN OTHER WORDS, THE ASSESSING OFFICER SHALL INDEPENDENTLY DECIDE THE ISSUE IN ACCORDANCE WITH L AW. 5. WITH THE ABOVE OBSERVATIONS, BOTH THE APPEALS OF THE ASSESSEES ARE ALLOWED, FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 24-06-2011. SD/- SD/- (A.L. GEHLOT) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER RAJKOT, DT : 24 TH JUNE, 2011 PK/- COPY TO: 1. ASSESSEE 2. REVENUE 3. THE CIT(A)-III, RAJKOT 4. THE CIT-II, RAJKOT 5. THE DR, I.T.A.T., RAJKOT (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, RAJKOT ITA NO.748/RJT/2010 ITA NO.749/RJT/2010 4