Nayyar Ritesh Girdharilal, Ahmednagar V. Income tax Officer,

ITA 82/PUN/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7233 (ITAT-PUNE)
• Duration Of Justice: 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 10-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO. 82 /P U N/201 7 / ASSESSMENT YEAR : 20 09 - 1 0 SHRI NAYYAR RITESH GIRDHARILAL, C/O NAYYAR TRADERS, ROSHAN GARAGE COMPOUND, SARJEPURA, AHMEDNAGAR . / APPELLANT PAN: ADFPN6017L VS. THE INCOME TAX OFFICER, WARD - 2, AH MEDNAGAR . / RESPONDENT / APPELLANT BY : SHRI KISHORE PHADKE / RESPONDENT BY : SHRI SUHAS KULKARNI / DATE OF HEARING : 1 9 . 0 1 .201 7 / DATE OF PRONOUNCEMENT : 19 .0 1 .201 7 / ORDER PER SUSHMA CHOWLA, J M : TH IS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF CIT(A) - 2, PUNE , DATED 1 3 . 0 7 .20 1 6 RELATING TO ASSESSMENT YEAR 20 09 - 1 0 AGAINST LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE INCOME - TAX ACT , 196 1 (IN SHORT THE ACT) . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. THE LEARNED CIT(A) - 2, PUNE ERRED IN LAW AND ON FACTS IN CONFIRMING THE PENALTY U/S 271(1)(C) OF ITA, 1961 LEVIED BY LEARNED AO WITHOUT GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LEARNED CIT(A) - 2, PUNE, OUGHT TO HAVE APPRECIATED THAT THE ASSESSEE HAS MADE SPECIFIC ITA NO. 82 /P U N/20 1 7 SHRI NAYYAR RITESH GIRDHARILAL 2 REQUEST TO KEEP PENALTY PROCEEDINGS IN ABEYANCE CONSIDERING THE FACT THAT THE QUANTUM APPEAL FOR AY 2009 - 10 WAS PENDING BEFORE HONORABLE ITAT PUNE ON THE SAID DATE. 2. THE LEARNED CIT(A) 2, PUNE HAS ERRED IN LAW AND ON FACTS IN CONFIRMING CONCEALMENT PENALTY AMOUNTING TO RS.6,73,100/ - U/S 271(1)(C) OF ITA, 1961 LEVIED BY LEARNED AO. 3. THE ONLY ISSUE RAISED BY THE ASSESSEE IN THE PRESE NT APPEAL IS THAT THE CIT(A) HAS PASSED THE ORDER WITHOUT GIVING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. IN THIS REGARD, HE REFERRED TO THE KEY EVENTS OF THE PROCEEDINGS BEFORE THE ASSESSING OFFICER AND CIT(A) AND STRESSED THAT IN THE ABSENCE OF REASONABLE OPPORTUNITY OF BEING HEARD GRANTED TO THE ASSESSEE, THE MATTER BE SET ASIDE TO THE FILE OF CIT(A). 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE PLACED RELIANCE ON THE ORDERS OF AUTHORITIES BELOW. 5. WE HAVE HEARD THE RIVAL CONTEN TIONS AND PERUSED THE RECORD. THE ASSESSMENT IN THE CASE OF ASSESSEE WAS COMPLETED UNDER SECTION 143(3) OF THE ACT, UNDER WHICH CERTAIN ADDITIONS WERE MADE IN THE HANDS OF ASSESSEE TOTALING RS. 18,57,000/ - . THE ASSESSEE FILED AN APPEAL AGAINST THE ORDER O F ASSESSING OFFICER AND THE CIT(A) DISMISSED THE APPEAL OF ASSESSEE. THE PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT WERE INITIATED AND PENALTY TO THE EXTENT OF RS.6,73,100/ - WAS LEVIED. THE ASSESSEE FILED AN APPEAL AGAINST THE ORDER OF ASSESS ING OFFICER WHICH WAS DISMISSED EX PARTE THE ASSESSEE BY THE CIT(A) VIDE ORDER DATED 13.07.2016. THE ASSESSEE IS AGGRIEVED BY SUCH DISMISSAL OF APPEAL. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE HAS FILED DATE - WISE KEY EVENTS IN THE PRESENT C ASE, WHICH READ AS UNDER: - ITA NO. 82 /P U N/20 1 7 SHRI NAYYAR RITESH GIRDHARILAL 3 DATE EVENT 23/12/11 143(3) ORDER WAS PASSED BY ITO, WARD - 2, NAGAR 28/01/14 QUANTUM APPEAL AGAINST 143(3) ORDER DISMISSED BY LEARNED CIT(A) - 2 06/06/14 APPEAL FILED BEFORE HONOURABLE ITAT AGAINST THE ABOVE ORDER OF CIT(A) - 2 25/03/15 CONCEALMENT PENALTY LEVIED BY LEARNED ITO, WARD - 2, NAGAR 24/04/15 APPEAL FILED BEFORE CIT(A) - 2 AGAINST CONCEALMENT PENALTY ORDER 29/02/16 QUANTUM AS WELL AS PENALTY APPEALS PENDING BEFORE APPELLATE AUTHORITIES 14/05/16 NOTICE OF HEARING FROM CIT(A) - 2 FOR PENALTY APPEAL HEARING 24/05/16 ADJOURNMENT REQUESTED FOR KEEPING PENALTY APPEAL IN ABEYANCE 04/07/16 NEXT DATE OF HEARING AS PER LEARNED CIT(A) - 2 RECORDS 13/07/16 CONCEALMENT PENALTY APPEAL DISMISSED (THIS ORDER REMAINED NOT COMMUNICATED TO APPELLANT FOR A LONG TIME) 29/08/16 REQUEST LETTER FILED BEFORE CIT(A) - 2 INFORMING OPTING FOR DRS SCHEME 06/09/16 QUANTUM APPEAL WITHDRAWN FROM HONORABLE ITAT, PUNE 06/09/16 QUANTUM APPEAL WITHDRAWN FROM HONORABLE ITAT, PUNE 25/10/16 DRS APPLICATION FILED BEFORE LEARNED PRINCIPAL CIT - 1, PUNE 23/11/16 DISMISSAL OF DRS APPLICATION BY PRINCIPAL CIT - 1, PUNE (APPLICATION DISMISSED SINCE, AS STATED, THE RELATED APPEAL WAS NOT PENDING BEFORE CIT(A) - 2 AND AS SUCH, CONSIDERING CBDT CIRCULAR DT. 12/9/16) 30/12/16 LETTER FILED BEFORE LEARNED PRINCIPAL CIT - 1, PUNE FOR REC ONSIDERATION OF DISMISSAL OF DRS APPLICATION 02/01/17 APPLICATION TO LEARNED CIT(A) - 2 FOR EXTENDING ORIGINAL / COPY OF THE APPELLATE ORDER, AS THE SAME WAS STILL NOT RECEIVED BY APPELLANT 05/01/17 RECEIPT OF THE ORIGINAL APPELLATE ORDER FROM LEARNED CIT( A) - 2 SINCE THE SAME WAS NOT SERVED ON THE APPELLANT (THOUGH ADDRESS ON ORDER WAS CORRECT) 10/01/17 APPEAL FILED BEFORE HONORABLE ITAT AGAINST DISMISSAL OF THE APPEAL BY CIT(A) - 2, PUNE 6. THE PERUSAL OF EVENTS REFLECT THAT ONE DATE OF HEARING WAS GIVEN B Y THE CIT(A), WHEREIN THE ASSESSEE REQUESTED THAT PENALTY PROCEEDINGS BE KEPT IN ABEYANCE, SINCE THE QUANTUM APPEAL WAS PENDING BEFORE THE TRIBUNAL. THESE ITA NO. 82 /P U N/20 1 7 SHRI NAYYAR RITESH GIRDHARILAL 4 FACTS ARE NOTED IN PARA 4.2 OF THE ORDER OF CIT(A). HOWEVER, THE CIT(A) DECIDES THE APPEAL ON THE A LLEGED NEXT DATE OF HEARING EX PARTE THE ASSESSEE VIDE ORDER DATED 13.07.2016. WE FIND MERIT IN THE PLEA OF ASSESSEE THAT HE WAS NOT PROVIDED REASONABLE OPPORTUNITY OF HEARING. THE SEQUENCE OF EVENTS REFLECT THAT AFTER INFORMING THE CIT(A), THE ASSESSEE ALSO OPTED FOR DRS SCHEME VIS - - VIS PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT. ON 29.08.2016, HE HAS ALSO WITHDRAWN QUANTUM APPEAL FILED BEFORE THE TRIBUNAL, SO THAT THE DRS APPLICATION COULD BE ACCEPTED. WE FIND MERIT IN THE BONAFIDES PUT UP BY THE ASSESSEE AND WE REMIT THIS ISSUE BACK TO THE FILE OF CIT(A) TO DECIDE THE APPEAL ON MERITS . THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE THUS, ALLOWED. 7 . IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THIS 19 TH DAY OF JANUARY , 201 7 . SD/ - SD/ - (ANIL CHATURVEDI ) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 19 TH JANUARY, 2017 GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE C I T (A) - 2, PUNE ; 4. / THE PR. C I T - 1 , PUNE ; 5. , , / DR A , ITAT, PUNE; 6. / GUARD FILE . / BY ORDER , // TRUE COPY // ASSISTANT REGISTRAR