M/s. Kathiawadi Hotel, Valsad V. The Income tax Officer. Ward-2, Valsad

ITA 826/AHD/2007

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 8930 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 08-03-2010
• Assessment Year: 2003-2004
• Appeal Filed On: 22-02-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C K MISHRA SRDR
• Keywords: Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE SHRI N.S.SAINI, ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH, JUDICIAL MEMBER ITA NO.826/AHD/2007 ASSESSMENT YEAR:2003-04 DATE OF HEARING:8.3.10 DRAFTED:8.3.10 M/S. KATHIAWADI HOTEL, OPP. ART GLASS FACTORY, N./H. NA 8 ABRAMA VALSAD PAN NO.AAFEK527F V/S . INCOME TAX OFFICER WARD-2, VALSAD (APPELLANT) .. (RESPONDENT) APPELLANT BY :- NONE RESPONDENT BY:- SHRI C.K.MISHRA, SR-DR O R D E R PER MAHAVIR SINGH JUDICIAL MEMBER:- THIS APPEAL BY THE ASSESSEE IS ARISING OUT OF THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS), VALSAD IN APPEAL NO. CIT(A) V LS/181/06-07 DATED 30-11- 2006. THE ASSESSMENT WAS FRAMED BY THE ITO WARD-2 V ALSAD U/S.143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS T HE ACT) VIDE HIS ORDER DATED 21-03- 2005 FOR ASSESSMENT YEAR 2003-04. THE PENALTY UNDER DISPUTE WAS LEVIED U/S.271(1)(C) OF THE ACT BY ITO WARD-2 VALSAD VIDE HIS ORDER DATED 04-05-2004. 2. THE ONLY ISSUE IN THIS APPEAL OF THE ASSESSEE IS AGAINST THE LEVY OF PENALTY U/S.271(1) OF THE ACT BY THE ASSESSING OFFICER AND CONFIRMED BY CIT(A). FOR THIS, ASSESSEE HAS RAISED THE FOLLOWING GROUND NO.1 :- [1] LEARNED AO HAS ERRED IN LAW AND ON FACTS TO LE VY OF PENALTY U/S./271(1)(C) WHEN QUANTUM OF TAX WAS NOT CONCLUDED AS APPEAL FIL ED BEFORE THE TRIBUNAL WAS PENDING TO BE DECIDED. LEARNED CIT (APPLS) ALSO ERRED IN CONFIRMING PENALTY LEVIED IGNORING AMENDMENT INSERTED IN SEC. 275 OF I.T. ACT. 1961. ITA NO.826/AHD/2007 A.Y. 2003-04 M/S. KATHIAWADI HOTEL V. ITO WD-2 VSL PAGE 2 3. WE HAVE HEARD THE LD. SR-DR AND FIND THAT IN THE QUANTUM APPEAL OF THE ASSESSEE IS PENDING BEFORE ITAT AND CIT(A) AS WELL AS ASSESSING OFFICER IN SPITE OF THIS FACT NARRATED BEFORE THEM, DECIDE THE ISSUE OF LEVY OF PENALTY U/S271(1)(C) OF THE ACT. ACCORDINGLY, THIS PENALTY IS TO BE SET ASIDE BACK TO THE FILE OF LOWER AUTHORITIES, SO THAT THEY CAN DECIDE AFTER THE DECISION OF TRIBU NAL IN QUANTUM APPEAL. LD. SR-DR HAS NOT OBJECTED TO THIS PROPOSAL. ONCE THE QUANTU M APPEAL IS PENDING BEFORE TRIBUNAL, THE PENALTY PROCEED SHOULD HAVE BEEN KEPT IN ABEYANCE. ACCORDINGLY, WE SET ASIDE THIS PENALTY AND DIRECT THE ASSESSING OFF ICER TO DIRECT THE LEVY OF PENALTY, IN CASE THE QUANTUM ADDITIONS ARE UPHELD AND THE CIRCU MSTANCES SO WARRANTS. THIS ISSUE OF THE ASSESSEES APPEAL IS ALLOWED FOR STATI STICAL PURPOSES. 4. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 08/03/2010 SD/- SD/- (N.S.SAINI) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD, DATED : 08/03/2010 *DKP COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)- VSL 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD