KOTHARI JEWELS P. LTD, MUMBAI V. DCIT, Jaipur

ITA 870/JPR/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2019 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 5 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 28-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VARINDER MEHTA
• Assessee Lawyers: S R SHARMA; R K BHATRA
• Section: 153A

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 870/JP/2016 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2009-10 M/S KOTHARI JEWELS PRIVATE LIMITED 5 TH FLOOR, KGK TOWER, DUTTA PADA ROAD, NEAR EKTA BHOOMI GARDEN, RAJENDRA NAGAR, BORIVALI (EAST) MUMBAI-66. CUKE VS. THE DCIT, CENTRAL CIRCLE-2, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AABCA 2717 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI S.R. SHARMA (C.A.) & SHRI R.K. BHATRA (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI VARINDER MEHTA (CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 22/03/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 26/03/2018 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 28.07.2016 OF LD. CIT(A), JAIPUR ARISING FROM THE P ENALTY ORDER PASSED PASSED U/S 271(1)(C) OF THE ACT FOR THE ASSESSMENT YEAR 2009-10. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- ITA NO. 870/JP/2016 M/S KOTHARI JEWELS PVT. LTD. VS.DCIT 2 1. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS ) HAD ERRED IN LAW AND ON FACT AND IN THE CIRCUMSTANCES OF THE CASE IN CONFIRMING THE LEVY OF PENALTY OF RS 4,00,000/- UND ER SECTION 271(1)(C) FOR THE DIFFERENCE IN RETURNED INCOME, FI LED UNDER SECTION 153A VIS-A-VIS 139(1). 2. THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR MODI FY ALL OR ANY OF THE ABOVE GROUNDS OF APPEAL OR ADD A NEW GROUND OF APPEAL, AS DEEMED NECESSARY, AT OR BEFORE THE TIME OF HEARI NG. IT IS PRAYED THAT THE ABOVE GROUNDS OF APPEALS MAY BE DECIDED BY THE HONBLE I.T.A.T. THE APPELLANT ALSO PRAYS TH AT THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS PASSED CRY PTIC ORDER WITHOUT PROPERTY APPRECIATING THE WRITTEN SUBMISSIO NS OF THE APPELLANT. THE ASSESSEE HAS ALSO RAISED AN ADDITIONAL GROUND W HICH READS AS UNDER:- 2. THAT THE ORDER PASSED UNDER SECTION 271(1)(C) OF THE I.T. ACT, 1961 BY THE LEARNED ASSESSING OFFICER IMPOSING PENA LTY OF RS. 4,00,000/- IS WRONG AND BAD IN LAW IN AS MUCH AS NO NOTICE WAS ISSUED/SERVED ON THE APPELLANT FOR INITIATION OF PE NALTY PROCEEDINGS ALONGWITH ASSESSMENT ORDER DATED 31-3-2 013 ISSUED UNDER SECTION 153A/143(3). 2. THE ADDITIONAL GROUND RAISED BY THE ASSESSEE IS REGARDING THE VALIDITY OF LEVY OF PENALTY U/S 271(1)(C) OF THE AC T WITHOUT ISSUING A NOTICE U/S 274 READ WITH SECTION 271(1)(C) OF THE A CT. 3. WE HAVE HEARD THE LD. AR AS WELL AS THE LD. DR A ND CONSIDERED THE RELEVANT MATERIAL ON RECORD ON ADMISSION OF ADD ITIONAL GROUND. THERE IS NO QUARREL THAT THE ADDITIONAL GROUND IS L EGAL IN NATURE AND ITA NO. 870/JP/2016 M/S KOTHARI JEWELS PVT. LTD. VS.DCIT 3 GOES TO THE ROOT OF THE MATTER. WE FURTHER NOTE THA T THE AO IN THE PENALTY ORDER PASSED U/S 271(1)(C) OF THE ACT HAS S TATED THAT THE PENALTY PROCEEDINGS WERE INITIATED VIDE SHOW CAUSE NOTICE DATED 31.03.2013. HOWEVER, THERE WAS A CHANGE OF THE ASSE SSING OFFICER AND THEREFORE, ANOTHER NOTICE WAS ISSUED ON 09.09.2013. IN RESPONSE TO THAT THE REPRESENTATIVE OF THE ASSESSEE APPEARED BEFORE THE AO AND FILED WRITTEN SUBMISSIONS. THUS, IT IS CLEAR THAT THE ASS ESSEE HAS PARTICIPATED IN THE PROCEEDING BEFORE THE AO. SINCE, THE ASSESSE E HAS NOW QUESTIONED THE JURISDICTION OF THE AO TO PASS THE P ENALTY ORDER U/S 271(1)(C) ON THE GROUND THAT NO NOTICE U/S 274 R.W. S. 271(1)(C) WAS ISSUED BY THE AO. THUS, IN THE FACTS AND CIRCUMSTAN CES OF THE CASE WHEN THIS OBJECTION HAS BEEN RAISED BY THE ASSESSEE FOR THE FIRST TIME AND IT REQUIRES VERIFICATION OF THE ASSESSMENT RECO RD THEREFORE, WE ADMIT THIS ADDITIONAL GROUND AND SET ASIDE THE MATTER TO THE RECORD OF THE ASSESSING OFFICER TO CONSIDER THIS OBJECTION OF THE ASSESSEE AS RAISED IN THE ADDITIONAL GROUND AND THEN DECIDE THE MATTER AS PER LAW. NEEDLESS TO SAY THE ASSESSEE BE GIVEN AN APPROPRIATE OPPORTU NITY OF HEARING BEFORE PASSING THE FRESH ORDER ON THIS ISSUE. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. ITA NO. 870/JP/2016 M/S KOTHARI JEWELS PVT. LTD. VS.DCIT 4 ORDER PRONOUNCED IN THE OPEN COURT ON 26/03/2018 SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 26/03/2018. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S KOTHARI JEWELS PRIVATE LIMITED, BORIVALI (EAST) MUMBAI. 2. IZR;FKHZ@ THE RESPONDENT- DCIT. CENTRAL CIRCLE-2, JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 870/JP/2016} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR