RASILA S. MEHTA, MUMBAI V. DCIT CC 23, MUMBAI

ITA 766/MUM/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8297 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-12-2014
• Appeal Filed By: Assessee
• Bench Allotted: D
• Next Hearing Date: 03-12-2014
• Assessment Year: 1997-1998
• Appeal Filed On: 29-01-2013
• Court: TRIBUNAL
• Department Lawyers: IN FACTS IN PASSING U S OF ACT
• Keywords: Principle of natural justice
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ITA NO.766/MUM/2013 ASSESSMENT YEAR: -1997-98 RASILA S. MEHTA 32, MADHURI DR. A.B. ROAD, WORLI MUMBAI 400 018. VS.` DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 23, R. NO. 409, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020. PAN:- ABNPM8219R APPELLANT RESPONDENT ORDER PER VIJAY PAL RAO, JM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 5.2.2014 OF CIT(A) ARISING FROM PENALTY ORDER PASSED U/S 271 (1)(C) OF THE INCOME TAX ACT FOR THE A.Y. 1997-98. THE ASSESSEE HAS RAISED F OLLOWING GROUNDS IN THIS APPEAL:- 1. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS ) HAS ERRED IN LAW AND IN FACTS IN PASSING THE ORDER U/ S. 250 OF THE ACT AND CONFIRMING THE ORDER OF THE ASSESSING OFFICER. 2. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN LAW AND FACTS IN DISMISSING THE APPEAL IN LIMINE BY INVOKIN G PROVISIONS OF SECTION 249(4) OF THE ACT. 3. THELEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS BY NOT APPRECIATING THAT THE ASSESSING OFFICER HAS PASSED THE ORDER WITHOUT COMPLYING WITH THE PRINCIPLES OF NATU RAL JUSTICE. ASSESSEE BY SHRI DHARMESH SHAH REVENUE BY SHRI LOVE KUMAR DATE OF HEARING 03.12.2014 DATE OF PRONOUNCEMENT 10.12.2014 RASILA S. MEHTA 2 | P A G E 4. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN PASSING THE ORDER WITHOUT COMPLYING WITH THE PRINCIPLES OF NATURAL JUSTICE. 5. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS BY NOT APPRECIATING THAT THE PENALTY O RDER PASSED BY THE ASSESSING OFFICER IS TIME BARRED AND HENCE INVALID ORDER. 6. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN CONFIRMING PENALTY U/S. 271(1)(C) OF TH E ACT AMOUNTING TO RS. 87,33,966/ . 2. THE ASSESSEE IS A NOTIFIED PERSON UNDER THE SPEC IAL COURT (TRIAL OF OFFENCES RELATING TO TRANSACTION IN SECURITIES ) AC T 1992. THE ASSESSEE DID NOT FILE ANY RETURN OF INCOME AND THE ASSESSMENT WAS FR AMED U/S 144. SUBSEQUENTLY, THE ASSESSING OFFICER INITIATED THE PENALTY PROCEEDINGS AND LEVIED THE PENALTY FOR WANT OF ANY SATISFACTORY EXP LANATION FROM THE SIDE OF THE ASSESSEE. THOUGH THE ASSESSEE FILED THE APPEAL BEFO RE THE CIT(A) AGAINST THE PENALTY ORDER, HOWEVER, FOR WANT OF PAYMENT OF TAX AND DELAY IN FILING THE APPEAL, THE CIT(A) DISMISSED THE APPEAL OF THE ASSE SSEE IN LIMINE. 3. BEFORE US, THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE HAS SUBMITTED THAT THE QUANTUM APPEAL HAS BEEN SET ASI DE BY THE TRIBUNAL TO THE RECORD OF CIT(A) FOR DECIDING ON MERITS. THE LD. AU THORIZED REPRESENTATIVE HAS FURTHER SUBMITTED THAT THE PENALTY IN THE CASE OF T HE ASSESSEE IS NOT SUSTAINABLE IN VIEW OF VARIOUS DECISIONS. HE HAS RELID UPON THE FOLLOWING DECISIONS:- (I) RASILA S. MEHTA VS. DCIT IN ITA NO. 1916/MUM/2006 (II) RASILA S. MEHTA BOMBAY HIGH COURT IN IT (L) NO. 14 22 OF 2008 DATED 10.02.2009. (III) ORDER OF HONBLE SUPREME COURT IN CC NO. 2007/2010 IN THE CASE OF APPELLANT. RASILA S. MEHTA 3 | P A G E (IV) ORDER OF HON'BLE SUPREME COURT IN CC NO. 2007/2010 IN CASE OF GROWMORE RESEARCH & ASSET MGT. LTD. 4. ON THE OTHER HAND, THE LD. DR HAS SUBMITTED THAT THE CIT(A) HAS NOT DECIDED THE APPEAL OF THE ASSESSEE ON MERITS BUT IT WAS DISMISSED IN LIMINE . SINCE THE QUANTUM APPEAL WAS ALSO SET ASIDE TO THE RECORD OF CIT(A), THE PRESENT APPEAL OF THE ASSESSEE SHOULD ALSO BE SET A SIDE TO THE RECORD OF CIT(A) FOR DECIDING THE SAME ON MERITS. 5. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD, WE NOTE THAT THE QUANTUM APPEAL OF THE ASS ESSEE WAS SET ASIDE BY THE TRIBUNAL TO THE RECORD OF CIT(A) WITH THE DIRECTION TO DECIDE DE NOVO IN ACCORDANCE WITH LAW AFTER PROVIDING ADEQUATE OPPORT UNITY TO THE ASSESSEE OF BEING HEARD. THOUGH THE ASSESSEE HAS RELIED UPON V ARIOUS DECISIONS AGAINST THE LEVY OF PENALTY, HOWEVER, WHEN THE APPEAL OF TH E ASSESSEE WAS NOT DECIDED ON MERITS BY THE ASSESSEE FOR WANT OF APPEARANCE, P AYMENT OF TAX AS WELL AS DELAY THEN IN THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN THE INTEREST OF JUSTICE, WE REMAND THIS MATTER TO THE RECORD OF CIT (A) FOR DECIDING THE SAME ON MERITS AFTER GIVING AN ADEQUATE OPPORTUNITY OF HEAR ING TO THE ASSESSEE AS WELL AS AFTER CONSIDERING THE OUTCOME OF THE QUANTUM APP EAL AS WELL AS THE DECISIONS RELIED UPON BY THE ASSESSEE. 6. IN THE RESULT APPEALS OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 10 TH DAY OF DECEMBER 2014. SD/- SD/- ( N.K.BILLAIYA ) (VIJAY PAL RAO) (ACCOUNTANT MEMBER/ YS[KK LNL; YS[KK LNL; YS[KK LNL; YS[KK LNL; ) (JUDICIAL MEMBER/ U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; ) MUMBAI DATED 10 -12-2014 SKS SR. P.S,