ITO 24(3)(4), MUMBAI V. JITENDRA B. PATEL, MUMBAI

ITA 7826/MUM/2011

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71176 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: J
• Next Hearing Date: 18-09-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 21-11-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: O P SINGH
• Section: 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI BEFORE S/SHRI B.R.MITTAL,(JM) AND SANJAY ARORA (AM) . . , , & ./I.T.A. NO.7826/MUM/2011 ( / ASSESSMENT YEAR:2005-06) INCOME TAX OFFICER - 24(3)(4), C-11, ROOM NO.706, PRATYAKSHAKAR BHAVAN, BANDRA-KURLA COMPLEX, BANDRA (E), MUMBAI-500051. / VS. SHRI JITENDRA B PATEL 11/30, SATI NIWAS CHS LTD., SIDDARTH NAGAR, GOREGAON-WEST, MUMBAI-400062. ./ ./PAN/GIR NO. : AMYPP3588J ( / APPELLANT) .. ( / RESPONDENT) / APPELLANT BY : NONE /RESPONDENT BY : SHRI O.P.SINGH ! / DATE OF HEARING : 18.9.2013 ! /DATE OF PRONOUNCEMENT : 18.9.2013 / O R D E R PER B.R.MITTAL, JM: THE DEPARTMENT HAS FILED THIS APPEAL FOR ASSESSM ENT YEAR 2005-06 AGAINST ORDER OF LD. CIT(A) DATED 9.8.2011 ON THE FOLLOWING GROUND: 1. ON THE FACTS AND IN THE CIRCUMSTANCES AND IN LA W, THE LD. CIT(A) ERRED IN DELETING THE PENALTY LEVIED U/S 271(1)(C ) AMOUNTI NG TO RS.5,32,090/-, IGNORING THE FACT THAT THE ASSESSEE FAILED TO PROVIDE ANY SA TISFACTORY EXPLANATION DURING THE COURSE OF PENALTY PROCEEDINGS AND THUS THE CASE IS CLEARLY COVERED BY EXPLANATION 1 TO SECTION 271(1)( C ). 2. NONE APPEARED ON BEHALF OF THE ASSESSEE. NOR TH ERE IS ANY APPLICATION FOR ADJOURNMENT. WE HAVE DECIDED TO DISPOSE OFF THE APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND CONSIDERING THE SUBMISSIONS OF LD. DR. 3. LD. DR SUBMITTED THAT THE LD. CIT(A) HAS DELETED THE PENALTY LEVIED BY AO U/S 271(1)( C) OF THE INCOME TAX ACT, 1961( THE ACT) WITHOUT GIVING ANY REASON AND MERELY ./I.T.A. NO.7826/MUM/2011 2 RELYING ON THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF CIT V/S RELIANCE PETROPRODUCT PVT LTD (322 ITR 158 ) (SC). HE SU BMITTED THAT THE ADDITION MADE BY AO WAS ALSO CONFIRMED BY LD. CIT(A) AND THERE WAS NO FURTHER APPEAL BEFORE THE TRIBUNAL. HE SUBMITTED THAT THE PENALTY LEVIED BY AO IS JUSTIFIED AND THE SAME MAY BE CONFIRMED. 4. WE HAVE CAREFULLY CONSIDERED THE ORDERS OF AUTHO RITIES BELOW AND MATERIAL PLACED ON RECORD. WE OBSERVE THAT AO MADE ADDITION OF R S.17,26,350/- WHILE PASSING ASSESSMENT ORDER U/S 143(3) OF THE ACT AS THE ASSES SEE COULD NOT GIVE ANY DETAIL SHOWING OPENING CAPITAL OF RS.17,28,350/- IN-SPITE OF GIVING OPPORTUNITIES TO THE ASSESSEE. IT IS RELEVANT TO STATE THAT ASSESSEE FI LED THE RETURN OF INCOME AFTER DUE DATE AS A NEW CASE. WE OBSERVE THAT EVEN AT THE TIME OF ISSUE OF SHOW CAUSE NOTICE U/S 271(1)( C ) R.W.S.274 OF THE ACT, THE ASSESSEE DID NOT FURNISH ANY PARTICULARS OF THE OPENING CAPITAL SHOWN BY IT, HENCE, AO LEVIED PENAL TY ON THE ADDITION OF RS.16,25,950/- AT THE RATE OF 100% OF THE TAX SOUGHT TO BE EVADED OF RS.5,32,090/-. WE OBSERVE THAT LD. CIT(A) HAS DELETED THE PENALTY WITHOUT GIVING A NY REASON AND MERELY STATED THAT LEVY OF PENALTY IS NOT AUTOMATIC AND HAS REFERRED THE D ECISIONS OF THE HONBLE APEX COURT IN RELIANCE PETROPRODUCT PVT LTD (SUPRA), DILIP SHRO FF (291 ITR 519)(SC) AND DHARMENDRA TEXTILE PROCESSORS (306 ITR 277) (SC) BUT THERE IS NO ELABORATION AS TO HOW THESE CASES ARE RELEVANT TO THE FACTS OF THIS CASE BEFORE US. WE CONSIDER IT PRUDENT THAT THE MATTER MAY BE RESTORED TO THE FILE OF LD. CIT(A) TO DECIDE THE APPEAL FILED BY ASSESSEE AGAINST THE ORDER OF LEVY OF PENALTY U/S 271(1)( C) OF THE ACT BY A REASONED ORDER AFTER GIVING OPPORTUNITY OF HEARING TO BOTH THE PARTIES. HENCE, WE SET ASIDE THE ORDER OF LD. CIT(A) AND RESTORE THE ISSUE TO HIM FOR HIS FRESH ADJUDICA TION BY A REASONED ORDER. THEREFORE, GROUND OF APPEAL TAKEN BY DEPARTMENT IS ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL OF THE DEPARTMENT IS A LLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT AFTER CONCLUSION OF HEARING ON 1 8 TH SEPTEMBER, 2013 & ( ) 18 TH SEPTEMBER, 2013 SD SD ( /SANJAY ARORA) ( . . / /B.R.MITTAL) / ACCOUNTANT MEMBER & / JUDICIAL MEMBER MUMBAI; ) DATED 18/9/2013 ./I.T.A. NO.7826/MUM/2011 3 . . ./ SRL , SR. PS * +, -, / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. 0 ( ) / THE CIT(A)- 4. 0 / CIT 5. 1 3 , ! 3 , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , / ITAT, MUMBAI