Shri Anirudh Kumar Chansoria, V. Income Tax Officer Ward-1,

ITA 80/JAB/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5724 (ITAT-JABALPUR)
• Duration Of Justice: 1 year(s) 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 01-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D R LATHORIYA

Judgement Text

1 I.T.A. NO.80 /JAB/2014 (ASSESSMENT YEAR :2005-06 ) IN THE INCOME TAX APPELLATE TRIBUNAL, JABALPUR BEFORE S/SHRI N.S. SAINI (AM) N. K. CHOUDHRY (JM ) I.T.A. NO.80 /JAB/2014 (ASSESSMENT YEAR :2005-06 ) SHRI ANIRIDH KUMAR CHANSORIA, C/O. M/S. MAA SANTOSHI FILLING STATION, DOLARIA ROAD, ITARSI DIST. HOSHANGABAD, BHOPAL. VS. ITO, WARD (1), AAYAKAR BHAVAN, NYHAS COLONY, ITARSI, DIST: HOSHANGABAD. PAN/GIR NO. : AFSPC 2015 E (APPELLANT) .. ( RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SH. D.R.LATHORIYA DATE OF HEARING : 11-04-2016 DATE OF PRONOUNCEMENT : 11-04. 2016 O R D E R PER NARENDRA KUMAR CHOUDHRY, JM THIS IS AN APPEAL FILED BY THE ASSESSEE EMANATING FROM AN ORDER OF THE LD CIT(A)1, BHOPAL, DATED 28.2.2014 FOR THE ASSESSMEN T YEAR 2005-06, IN THE MATTER OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. 2 I.T.A. NO.80 /JAB/2014 (ASSESSMENT YEAR :2005-06 ) 2. WHEN THE MATTER WAS CALLED ON FOR HEARING, NO O NE APPEARED ON BEHALF OF THE ASSESSEE. HOWEVER, AN ADJOURNMENT PETITION WAS FILED ON RECORD BY EMAIL DATED 11.4.2016. CONSIDERING THE ISSUE INVOLVED IN THE C ASE, WE REJECT THE ADJOURN PETITION AND PROCEED TO DECIDE THE APPEAL ON MERITS AFTER HEARING LD D.R. AND ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 3. IN GROUND NO.1, THE ASSESSEE IS AGITATING THAT T HE LOWER AUTHORITY HAS PASSED THE ORDER WITHOUT ALLOWING THE OPPORTUNITY OF PERSO NAL HEARING TO THE ASSESSEE. 4. WE HAVE HEARD LD D.R. ON PERUSAL OF THE ORDER O F LD CIT(A), WE OBSERVE THAT BEFORE PASSING THE IMPUGNED ORDER, THE LD CIT (A) HAS AFFORDED DUE OPPORTUNITIES TO THE ASSESSEE, AS IS EVIDENT FROM T HE IMPUGNED ORDER. HOWEVER, BEFORE PROCEEDING WITH THE CASE, IT IS PERTINENT TO MENTION THAT IT WAS THE CONTENTION OF THE ASSESSEE BEFORE THE AO THAT THE PENALTY PROC EEDINGS BE KEPT IN ABEYANCE AS THE ASSESSEE HAS FILED APPEAL BEFORE THE ITAT AGAIN ST THE QUANTUM PROCEEDINGS. HOWEVER, THE AO OBSERVED THAT PENALTY PROCEEDINGS C ANNOT BE KEPT IN ABEYANCE BECAUSE OF PENDENCY OF APPEAL BEFORE THE TRIBUNAL I N VIEW OF THE PROVISO TO SECTION 275(1)(A) OF THE I.T.ACT, 1961, WHICH CLEARLY STATE S THAT PENALTY SHOULD BE DISPOSED OFF WITHIN A PERIOD OF ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER OF THE CIT(A) IS RECEIVED. WE OBSERVE THAT AS PER THE PROVISIONS OF THE PROVISIONS 3 I.T.A. NO.80 /JAB/2014 (ASSESSMENT YEAR :2005-06 ) OF SECTION 275(1)(A) OF THE ACT, ASSESSING OFFICER CANNOT PASS AN ORDER IMPOSING PENALTY U/S 271(1)(C) OF THE ACT TILL RELEVANT ASSE SSMENT IS SUBJECT MATTER OF APPEAL BEFORE LD. CIT(A) (I.E. THE FIRST APPELLATE AUTHORI TY). BY THE SAME ANALOGY ASSESSEES PRAYER FOR STAY OF PENALTY PROCEEDINGS U NDERTAKEN BY LD. CIT(A) TILL THE DISPOSAL OF APPEAL BY THE TRIBUNAL DOES NOT APPEAR TO BE UNREASONABLE. WE FURTHER FIND THAT THERE IS NO DISPUTE ABOUT THE FACT THAT A S PER THE PROVISION OF SECTION 275(1)(A) OF THE ACT LD. CIT(A) WILL GET SIX MONTHS TIME TO DISPOSE OF THE PENALTY PROCEEDINGS FROM THE END OF THE MONTH IN WHICH THE ORDER OF THE TRIBUNAL IS RECEIVED BY THE COMMISSIONER OR THE CHIEF COMMISSIO NER. IN VIEW OF THESE FACTS, WE ARE OF THE CONSIDERED OPINION THAT IF LD. CIT(A) IS ALLOWED TO PROCEED WITH THE PENALTY PROCEEDINGS, ALREADY UNDERTAKEN BY HIM, PRE JUDICE WILL CAUSE TO THE ASSESSEE AS IT WILL HAVE TO FACE MULTIPLICITY OF TH E PROCEEDINGS. IN CASE ASSESSEE SUCCEEDS IN QUANTUM APPEAL, THE PENALTY ORDER PASSE D BY LD. CIT(A) WILL HAVE NO LEGS TO STAND WHILE IN A SITUATION THE ASSESSEE FAI LS LD. CIT(A) WILL GET AMPLE TIME OF SIX MONTHS TO DISPOSE OF THE PENALTY PROCEEDINGS . WE OBSERVE THAT THE LD CIT(A) HAS PASSED THE ORDER EXPARTE FOLLOWING THE D ECISION OF ITAT DELHI IN THE CASE OF MULTIPLAN INDIA LTD. 38 ITD 320 WITHOUT HEA RING TO THE ASSESSEE. THEREFORE, IN THE INTEREST OF JUSTICE, EXERCISING OUR APPELLATE POWERS CONFERRED U/S 254(1) OF THE ACT, AS INTERPRETED BY HONBLE APEX C OURT IN THE CASE OF ITO VS. 4 I.T.A. NO.80 /JAB/2014 (ASSESSMENT YEAR :2005-06 ) MOHAMMAD KUNHI 71 ITR 815 (SC) AND TO PREVENT MULTI PLICITY OF PROCEEDINGS AND HARASSMENT TO THE ASSESSEE, WE SET ASIDE THE ORDER OF LD CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO DECIDE THE I SSUE UNDER APPEAL AFTER DISPOSAL OF QUANTUM APPEAL BY THE TRIBUNAL. GROUND NO.1 OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11 /4/201 6 . SD/- SD/- (N.S.SAINI) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL MEMBER JABALPUR, DATED 11 / 4/2016 PARIDA , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT : SHRI ANIRIDH KUMAR CHANSORIA, C/ O. M/S. MAA SANTOSHI FILLING STATION, DOLARIA ROAD, ITARSI DIST . HOSHANGABAD, BHOPAL 2. THE RESPONDENT: ITO, WARD (1), AAYAKAR BHAVAN, N YHAS COLONY, ITARSI, DIST: HOSHANGABAD 3. THE CIT(A). BHOPAL 4. CIT .BHOPAL 5. DR, ITAT, JABALPUR 6. GUARD FILE. BY ORDER, //TRUE COPY// SR. PS, ITA T, CAMP: JABAL PUR