Smt. Molly Joy kutty, Baroda V. The Income tax Officer, Ward-4(3), Baroda

ITA 885/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0995 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 08-06-2016
• Assessment Year: 2002-2003
• Appeal Filed On: 23-04-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 27; 2

Judgement Text

ITA NO S . 883 884 & 885 /AHD/201 2 A.Y S . 20 02 - 03, 2001 - 02 & 2002 - 03 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH, SMC , AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER I TA NO. 883 /AHD /201 2 ASSESSMENT YEAR: 20 02 - 03 SHRI JOY KUNJU KUTTY VS. INCOME TAX OFFICER, A - 7, NANDANVAN SOCIETY, WARD - 4(3), BARODA. S USSEN TARSALI ROAD, BARODA 390 010 [PAN: ACGPK 8874 J] I TA NO S . 884 & 885/AHD /201 2 ASSESSMENT YEARS: 2001 - 02 & 2002 - 03 SMT. MOLLY JOY KUTTY VS. INCOME TAX OFFICER, A - 7, NANDANVAN SOCIETY, WARD - 4(3), BARODA. SUSSEN TARSALI ROAD, BARODA 390 010 [P AN: AFRPK 1629 K] ] (APPELLANT S ) (RESPONDENT) APPELLANT BY : SHRI M UKUND B AKSHI, A.R. RESPONDENT BY : S HRI MADHUSUDAN, SR. D.R. DATE OF HEARING : 0 8 .0 6 . 20 16 DATE OF PRONOUNCEMENT : 15 . 0 7 .2016 O R D E R THIS SET OF THREE APPEALS CHALLENGE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 ON THE FOLLOWING AMOUNTS AGAINST EACH : - (I) ITA NO .883/AHD/ 2012 A.Y. 2002 - 03 RS. 3,28,500/ - (II) ITA NO.884 /AHD/2012 A.Y. 2001 - 02 RS. 46,200/ - (III) ITA NO .885/AHD/2012 A.Y. 2002 - 03 RS.83,200/ - 2. LEARNED COUNSEL FOR THE ASSES SE E, AT THE OUTSE T , REQUESTED FOR ADMISSION OF ADDITIONAL GROUND AS FOLLOWS : - THE LD . A .O. HAS E R RED IN LAW AND IN FACTS IN LEVY OF PENALTY U/S 271 ( 1 )( C ) WITHOUT GIVING ANY D IRECTION IN THE ORDER FOR LEVY OF PENALTY BY RECORDING HIS SATISFACTION IN THIS RESPECT. MERE MENTIONING OF INITIATION OF PENALTY U/S . 271 (1)(C) WOULD NOT BE A DIRECTION IN ACCORDANCE WI TH THE ITA NO S . 883 884 & 885 /AHD/201 2 A.Y S . 20 02 - 03, 2001 - 02 & 2002 - 03 PAGE 2 OF 4 JUDGEM E NT IN THE CASE OF CI T VS . MANJUNATH A COTTON & GINNING FACTORY, 359 ITR 505 (KAR . ), MADHUSHREE GUPTA VS . UOI 309 ITR 14 3 (DELHI) AND CIT VS. MWP LIMITED 41 CTR 502 (KAR . ) 3. IT WAS CONTENDED THAT TH E ADDITIONAL GROUND T AKEN BY THE ASSESSEE IS PURELY LEGAL IN NATUR E . RELIANCE IS PLACED ON HON BLE SUPREME CO URT S JUDGEMENT IN THE CASE OF NTPC LIMITED VS. CIT , 229 ITR 283 (SC). 4. LEARNED DEPARTMENTAL REPRESENTATIVE IS HEA R D. 5. I AM OF T HE CONSIDERED VIEW THAT THE ADDITIONAL GROUND RAISE D BY THE ASSESS E E IS LEGAL IN NATURE WHICH IS ADMITTED. 6. LEARNED COU NSEL FOR THE ASSESSEE THEREAFTER DID NOT PRE SS THE GROUNDS RAISE D IN M EMO OF APPEAL AND CONTEND S TH A T APPEALS MAY BE DECIDED ON THE BASIS OF THIS ADDITION A L GROUND ONLY . 7. IT IS CONTENDED THAT IN THE IMPUGNED ASSESSMENT ORDERS THE PENALTY HAS BEEN INIT I A TED WITHOUT MENTIONING ANYTHING ABOUT TH E ADDITION QUA WHICH THE INCOME HAS B E EN CONCEALED. THEREFORE, THE INITIATION IS VAGUE AND NON SPECIFIC. THEREFORE , THE IMPUGNED PENALTY PROCEEDINGS ARE BAD IN LAW FOR WANT OF SPECIFIC CHARGE AS HELD IN THE CA SE S OF CIT VS. MANJUNATHA COTTON & GINNING FACTORY, 359 ITR 505 (KAR.), MADHUSHREE GUPTA VS. UOI 309 ITR 143 (DELHI) AND CIT VS. MWP LIMITED 41 CTR 502 (KAR.) ITA NO S . 883 884 & 885 /AHD/201 2 A.Y S . 20 02 - 03, 2001 - 02 & 2002 - 03 PAGE 3 OF 4 8 . LEARNED DEPARTMENTAL REPRESENTATIVE , ON THE OTHER HAND, CONTENDS THAT THE ISSUE IN QUESTION IS NO MORE RES INTEGRA AS THE HON BLE SUPREME COURT IN THE CASE OF MAK DATA PVT . LTD . VS. CIT, 358 ITR 593 (SC) HAS HELD THAT : - THE ASSESSING OFFICE R HAS TO SATISFY WHETHER THE PENALTY PROCEEDINGS BE INITIATED OR NOT DURING THE COURSE OF THE ASSESSMENT PRO CEEDINGS AND THE ASSESSING OFFICER IS NOT REQUIRED TO RECORD HIS SATISFACTION IN A PARTICULAR MANNER OR REDUCE IT INTO WRITING. THE SCOPE OF SECTION 271(1)(C) HAS ALSO BEEN ELABORATELY DISCUSSED BY THIS COURT IN UNION OF INDIA V. DHARAMENDRA TEXTILE PROCES SORS [2008] 13 SCC 369 AND CIT V. ATUL MOHAN BINDAL [2009] 9 SCC 589. THE PRINCIPLE LAID DOWN BY THIS COURT, IN OUR VIEW , HAS BEEN CORRECTLY FOLLOWED BY T HE REVENUE AND WE FIND NO ILLEGALITY IN THE DEPARTMENT INITIATING PENALTY PROCEEDINGS IN THE INSTANT CASE. W E , THEREFORE , FULLY AGREE WITH THE VIEW OF THE HIGH COURT . HENCE, THE APP E AL LACKS MERIT AND IS DISMISSED . THERE SHALL BE NO ORDER AS TO COSTS. 9 . HON BLE SUPREME COURT HAS THUS CLEARLY LAID DOWN THAT MERE INITIATION OF PENALTY UNDER SE CTION 27 1(1)(C) IS SUFFICIENT TO VEST THE A SSESSING OFFICER WITH POWER TO HEAR THE ASSESSEE AND THEN DECIDE THE PENALTY ON MERITS. THE JUDGEMENT IN THE CASE OF MAK DATA PVT. LTD. HAS BEEN RENDERED BY THE HON BLE SUPREME COURT ON 30.10.2013 WHEREAS THE JUDGEMENT IN THE CASE OF AGARWAL REFRI GE RATOR IS ON 04.01.2013 . SIMILARLY , M ANJUNATHA COTTON & GINNING FACTORY JUDGEMENT IS ALSO RENDERED PRIOR TO THE MAK DATA JUDG E MENT. BESID E S , THE MW P LIMITED JUDGEMENT HAS NOT CONSIDERED THE LAW LAID DOWN BY THE HON BLE SUPREM E COURT . JUDGEMENT OF H ON B;LE SUPREME COURT BEING ON US, THE PENALTY INITIATED BY THE A SSESSING OFFICER IN THE IMPUGNED PENALTY PROCEEDINGS IS VALID AND T ENA B LE . T HEREFORE , THERE IS NO MERIT IN THE ASSESSEE S ADDITIONAL GROUND WHICH MAY BE DISMISSED. 1 0 . I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORDS. T HE ASSESSEE D ID NOT APPEAR BEFORE THE L EARNED CIT(A) AND NO REPLY WAS ALSO FILED. A PLAIN READING OF H ON BLE SUPREME COURT S JUDGEMENT IN THE CASE OF MAK ITA NO S . 883 884 & 885 /AHD/201 2 A.Y S . 20 02 - 03, 2001 - 02 & 2002 - 03 PAGE 4 OF 4 D ATA PVT. LTD. (SUPRA) REVE A LS THAT THE LAW LAID DOWN DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE A SSESSING OFFICER HAS TO RECORD HIS SATISFACTIONS WHETHER PENALTY PROCEEDINGS ARE TO BE INITIATED OR NOT. THE SAME SHOULD NOT BE IN A PARTICULAR MANNER AS DESIRED BY T HE ASSESSEE. SINCE THE ISSUE IN QUESTION IS SQUARELY COVERED BY THE HON BLE S UPREME COURT S J UDGEMENT IN THE CASE OF MAK DATA PVT. LTD. (SUPRA) , ASSESSEE S ADDITIONAL GROUND IS DISMISSED . 1 1 . IN THE RESULT, ASSESSEE S APPEALS ARE DISMISSED. ( THIS ORDER P RONOUNCED IN THE OPEN COURT TODAY ON TH E 15 TH DAY OF JULY , 201 6 . ) SD/ - R.P. TOLANI ( JUDICIAL MEMBER) AHMEDABAD, THE 15 TH DAY OF JULY , 2016 PBN/* COPIES TO: (1) THE APPELLANT ( 2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD