ACIT, CHENNAI V. Shri Dharampal Pandia R., CHENNAI

ITA 88/CHNY/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 4647 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 01-06-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 20-01-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: OMKARESHWAR CHIDRA
• Assessee Lawyers: V RAMACHANDRAN
• Section: 271(1)(c); 143(3); 133A; 139(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHENNAI BENCH D : CHENNAI [BEFORE SHRI N. BARATHVAJA SANKAR, VICE-PRESIDENT AND SHRI HARI OM MARATHA, JUDICIAL MEMBER] I.T.A NO. 88/MDS/09 ASSESSMENT YEAR : 2004-05 THE ACIT BUSINESS CIRCLE X(I/C) CHENNAI VS SHRI DHARAMPAL PANDIA. R NO.119, NYNIAPPA NAICKEN STREET PARK TOWN, CHENNAI 600 003 [PAN ADQPD 0260 Q] (APPELLANT ) (RESPONDENT) APPELLANT BY : SHRI OMKARESHWAR CHIDRA RESPONDENT BY : SHRI V. RAMACHANDRAN O R D E R PER HARI OM MARATHA, JM: THIS APPEAL OF THE REVENUE, FOR ASSESSMENT YE AR 2004-05, IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A), DATED 23.10.2008. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL, WHO IS ENGAGED IN THE BUSINESS AS A DEALER IN ANTIBIOTICS, CHEMICALS, PRAWN FEEDS, ETC, UNDER THE NAME AND STY LE OF M/S HERMES INDIA(MADRAS). A SURVEY U/S 133A OF THE ACT WAS C ONDUCTED AND IT WAS OBSERVED THAT THE ASSESSEE IS HAVING TAXABLE IN COME, BUT HE DID NOT FILE THE RETURN OF INCOME. THE ASSESSEE SHOULD HAVE FURNISHED THE RETURN OF INCOME ON OR BEFORE 31.10.2004 AS PER THE PROVISIONS OF SECTION 139(1) OF THE ACT. BUT THE ASSESSEE FURNIS HED THE RETURN OF ITA 88/09 :- 2 -: INCOME FOR THE YEAR UNDER CONSIDERATION ON 5.9.2006 DECLARING TOTAL INCOME OF RS. 1,00,32,609/-. THE ASSESSEE DID NOT FURNISH THE RETURN OF INCOME WITHIN THE TIME PROVIDED U/S 139(1) OR U/ S 153(1) OF THE ACT. THE ASSESSMENT WAS COMPLETED U/S 143(3) R.W.S 147 ON 27.12.2007 BY MAKING A SMALL ADDITION OF RS. 1,63,249/- FOR WH ICH PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT WERE ALSO INI TIATED SEPARATELY. THE ASSESSING OFFICER HAS LEVIED A PENALTY OF RS. 3 3,95,150/- U/S 271(1)(C) OF THE ACT ON 23.6.2008. BEING AGGRIEVED , THE ASSESSEE WENT IN APPEAL BEFORE THE LD. CIT(A), WHO HAS DELET ED THE ENTIRE PENALTY BY FOLLOWING HIS ORDERS ON SIMILAR FACTS IN OTHER YEARS. 3. IN OTHER YEARS, THE REVENUE CAME BEFORE THE TRIBUNA L AND THE TRIBUNAL HAS CONFIRMED THE PENALTY IMPOSED ON TECHN ICAL ISSUE BY INVOKING EXPLANATION 3 TO SECTION 271(1)(C). BEFOR E US, IT WAS ARGUED BY THE LD.DR THAT THIS ISSUE STANDS COVERED IN FAVO UR OF THE REVENUE BUT IT WAS VEHEMENTLY CONTESTED BY THE LD.AR THAT E XPLANATION 3 TO SECTION 271(1)(C) OF THE ACT DOES NOT APPLY IN THIS CASE AS IN OTHER YEARS THE NOTICES WERE SERVED WITHIN TIME. SO, THE FACTS OF THIS YEAR ARE ENTIRELY DIFFERENT. RELIANCE WAS PLACED ON VAR IOUS DECISIONS FROM BOTH SIDES. 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS, IT IS THOU GHT FIT IN THE FACTS OF THE CASE THAT THE ENTIRE ISSUE SHOULD BE R ESTORED TO THE FILE OF THE LD. CIT(A) WITH A DIRECTION THAT HE SHALL DECI DE THE ISSUE AFRESH AFTER CONSIDERING THE TRIBUNAL ORDER PASSED IN FAVO UR OF THE REVENUE ITA 88/09 :- 3 -: AND ALSO THE SUBMISSIONS OF THE ASSESSEE THAT THIS CASE IS DIFFERENT FROM OTHER YEARS. 5. IN THE RESULT, THE APPEAL STANDS ALLOWED FOR S TATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 24. 6.10. SD/- SD/- (N. BARATHVAJA SANKAR) VICE-PRESIDENT ( HARI OM MARATHA ) JUDICIAL MEMBER DATED: 24 TH JUNE, 10 RD : COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR