Haryana State Pollution Control Board, Panchkula V. DCIT, Panchkula

ITA 90/CHANDI/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9185 (ITAT-CHANDIGARH)
• Duration Of Justice: 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 10-08-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 12-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Keywords: Application of stay; Retrospective amendment
• Section: 143(3); 12A; 12AA; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SH.MAHARSHI PRASHANT KUMAR, ACCOUNTANT MEMBER ITA NOS. 90 TO 95/CHD/2016 A.Y: 2006-07 TO 2011-12 HARYANA STATE POLLUTION VS THE DCIT, CONTROL BOARD, PANCHKULA CIRCLE, C-11, SECTOR 6, PANCHKULA. PANCHKULA. PAN: AAAJH0446F & STAY APPLICATION NO. 4 TO 7/2016 IN ITA NOS. 92 TO 95/CHD/2016 A.Y: 2008-09 TO 2011-12 HARYANA STATE POLLUTION VS THE DCIT, CONTROL BOARD, PANCHKULA CIRCLE, C-11, SECTOR 6, PANCHKULA. PANCHKULA. PAN: AAAJH0446F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI NAVDEEP MONGA RESPONDENT BY : SHRI S.K.MITTAL DATE OF HEARING : 10.08.2016 DATE OF PRONOUNCEMENT : 12.08.2016 O R D E R PER BENCH THIS ORDER SHALL DISPOSE OF ALL THE ABOVE APPEALS AND STAY APPLICATIONS FILED BY THE ASSESSEE. 2 2. ALL THE APPEALS BY ASSESSEE ARE DIRECTED AGAINST COMMON ORDER OF LD. CIT(APPEALS) PANCHKULA DATED 31.12.2015 FOR ASSESSMENT YEARS 2006-07 TO 2011-12 CHALLENGING THE LEVY OF PENALTY UNDER SECTION 271(1 )(C) OF THE INCOME TAX ACT. 3. BRIEFLY THE FACTS OF THE CASE ARE THAT DURING REGISTRATION PROCEEDINGS UNDER SECTION 12A OF THE INCOME TAX ACT IN ASSESSEE'S CASE, ASSESSING OFFICE R NOTICED THAT ASSESSEE WAS NOT FILING ITS RETURN OF INCOME, THOUGH THE INCOME OF THE ASSESSEE WAS MORE THAN TAXABLE LIMIT. THE ASSESSING OFFICER, ACCORDI NGLY, ISSUED NOTICE UNDER SECTION 148 OF THE INCOME TAX A CT FOR ABOVE ASSESSMENT YEARS 2006-07 TO 2011-12 INCOM ES OF WHICH HAD ESCAPED ASSESSMENT. THE ASSESSEE FILE D RETURNS OF INCOME DECLARING NIL INCOME AFTER CLAI MING EXEMPTION UNDER SECTION 10(23C)(IV) OF THE ACT. IN THE ASSESSMENTS COMPLETED UNDER SECTION 143(3) READ WIT H SECTION 147 OF THE ACT, CLAIM OF EXEMPTION UNDER SE CTION 10(23C)(IV) OF THE ACT WAS DENIED FOR WANT OF APPRO VAL FROM PRESCRIBED AUTHORITY AND ADDITIONS WERE ACCORDINGLY MADE. THE ASSESSING OFFICER VIDE SEPAR ATE ORDER LEVIED THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT. 4. THE LD. CIT(APPEALS) ALSO NOTED IN THE IMPUGNED ORDER THAT APPLICATION FOR REGISTRATION UNDER SECTI ON 12A OF THE ACT HAVE BEEN REJECTED BY THE CIT, PANCHKULA AND APPLICATION FOR APPROVAL UNDER SECTION 10(23C)(IV) OF THE 3 ACT WAS ALSO REJECTED BY THE CCIT, PANCHKULA. THE LD. CIT(APPEALS) REFERRED TO VARIOUS PROCEEDINGS IN THE CASE OF THE ASSESSEE AND ALSO REFERRED TO THE ORDER OF I TAT AGAINST THE ORDER OF CIT, PANCHKULA UNDER SECTION 1 2AA OF THE ACT IN WHICH MATTER WAS REMANDED BACK TO THE FILE OF CIT FOR RE-EXAMINATION OF THE ISSUE BUT THE APPE ALS AGAINST THE ORDER OF THE LD. CIT(APPEALS) WERE DISM ISSED. THE TRIBUNAL IN THE OPERATIVE ORDER AS REPRODUCED I N THE IMPUGNED ORDER, OBSERVED, HOWEVER, IF THE ASSESSEE IS ABLE TO OBTAIN APPROVAL UNDER SECTION 10(23C) THEN ASSESSING OFFICER SHALL CONSIDER THE MATTER IN THE LIGHT OF SUCH APPROVAL. THE LD. CIT(APPEALS) FOUND THAT SINCE ASSESSEE CLAIMED EXEMPTION OF INCOME UNDER SECTION 10(23C)(IV) WITHOUT HAVING ANY VALID APPROVAL OF TH E PRESCRIBED AUTHORITY, THEREFORE, ASSESSEE FURNISHED INACCURATE PARTICULARS AND CONFIRMED THE LEVY OF PENALTY. HOWEVER, IT WAS REDUCED FROM 150% TO 100% . THE LD. CIT(APPEALS) ALSO DIRECTED AS PER OBSERVATI ONS OF THE TRIBUNAL THAT IF THE ASSESSEE IS ABLE TO OBTAIN APPROVAL UNDER SECTION 10(23C)(IV), THEN THE ASSESS ING OFFICER MAY MODIFY THE PENALTIES IMPOSED AS PER THE IMPACT OF SUCH APPROVAL ON QUANTUM OF TAX ASSESSED . 5. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET SUBMITTED THAT THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF THE SAME ASSESSEE IN ITA 402, 412, 413, 422, 464 AND 468/2015 VIDE JUDGEMENT DATED 25.07.2016 FOR ASSESSMENT YEARS 2006-07 TO 2011-12 4 HAVE RESTORED THE MATTER TO THE FILE OF ASSESSING O FFICER ON QUANTUM PROCEEDINGS IN THE LIGHT OF APPROVAL GRA NTED UNDER SECTION 10(23C)(IV) OF THE ACT. ( THE COPY OF THE JUDGEMENT IS PLACED ON RECORD). THE FINDINGS IN PA RA 5 TO 7 ARE REPRODUCED AS UNDER 5. AFTER THE ORDER OF THE TRIBUNAL, THE APPELLANT OBTAINED THE EXEMPTION UNDER SECTION 10(23C)(IV) BY A N ORDER DATED 01.03.2016. THE APPLICATION FOR THE SAME WAS, HOWEVER, MADE ON 28.01.2013. THE APPROVAL IT IS AGREED HAS BEEN GRANTED WITH 'RETROSPECTIVE EFFECT FOR THE ASSESSMENT YEARS 2006-2007 TO 2014-2015. THIS COVERS THE PERIOD IN QUESTION NAMELY, THE ASSESSMENT YEARS 2006-2007 TO 2011-2012. IN THESE CIRCUMSTANCES, IT IS NOT NECESSARY FOR THE APPELLANT TO CHALLENGE THE OR DER IN SO FAR AS SECTION 12AA IS CONCERNED. 6. IN VIEW OF THE OBSERVATIONS IN THE ORDER OF THE TRIBUNAL TO THE EFFECT THAT IN THE EVENT OF THE APPEL LANT OBTAINING APPROVAL UNDER SECTION 10(23C), THE ASSESSIN G OFFICER SHOULD CONSIDER THE MATTER IN THE LIGHT OF SUC H APPROVAL, IT IS NOT NECESSARY TO REMAND THE MATTER T O THE TRIBUNAL. THE PROPER COURSE WOULD BE TO REMAND THE MATTER TO THE ASSESSING OFFICER. 7. THE APPEALS ARE, THEREFORE, DISPOSED OF BY DIRECT ING HE ASSESSING OFFICER TO CONSIDER THE MATTER REGARDING THE APPELLANT'S ASSESSMENT FOR THE YEARS 2006-2007 TO 2 011- 2012 IN THE LIGHT OF THE EXEMPTION GRANTED UNDER SECTIO N 10(23C). 6. THE LD. COUNSEL FOR THE ASSESSEE, THEREFORE, SUBMITTED THAT THE PENALTY MATTER MAY ALSO BE REMAN DED TO THE FILE OF ASSESSING OFFICER. 5 7. AFTER CONSIDERING SUBMISSIONS OF BOTH THE PARTIE S, IN THE LIGHT OF JUDGEMENT OF HON'BLE PUNJAB & HARYA NA HIGH COURT IN CASE OF ASSESSEE ON QUANTUM, WE ARE O F THE VIEW THE MATTER REQUIRES RE-CONSIDERATION AT TH E LEVEL OF THE ASSESSING OFFICER. HON'BLE PUNJAB & HARYANA HIGH COURT OBSERVED THAT ASSESSEE OBTAINED THE EXEMPTION UNDER SECTION 10(23C)(IV) OF THE ACT BY A N ORDER DATED 01.03.2016 WHICH IS APPLICABLE TO ALL T HE ASSESSMENT YEARS UNDER APPEAL. THE QUANTUM MATTER WAS, THEREFORE, RESTORED TO THE FILE OF ASSESSING O FFICER. THEREFORE, IN VIEW OF THE FACT THAT ASSESSEE OBTAIN ED APPROVAL UNDER SECTION 10(23C)(IV) OF THE INCOME TA X ACT AND THE MATTER IS REMANDED TO THE FILE OF ASSESSING OFFICER BY HON'BLE HIGH COURT, THEREFORE, PENALTY O RDERS AT THIS STAGE WOULD NOT SURVIVE BECAUSE IT DEPENDS UPON QUANTUM MATTER TO BE DECIDED BY THE A.O. IN SET ASI DE PROCEEDINGS. WE, THEREFORE, SET ASIDE THE ORDERS O F THE AUTHORITIES BELOW AND REMAND THE PENALTY MATTERS TO THE FILE OF ASSESSING OFFICER WITH DIRECTION TO RE-DECI DE THE PENALTY MATTERS AFTER DECIDING THE QUANTUM MATTER A S PER JUDGEMENT OF HON'BLE PUNJAB & HARYANA HIGH COUR T. 8. IN THE RESULT, ALL APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 9. IN VIEW OF THE ABOVE FINDINGS IN MAIN APPEALS, T HE STAY APPLICATIONS OF THE ASSESSEE IN WHICH INTERIM STAY HAVE BEEN GRANTED, HAVE BECOME INFRUCTUOUS AND ARE, 6 ACCORDINGLY, DISPOSED OFF BECAUSE NO FURTHER EXTENS ION OF THE STAY IS REQUIRED IN THE MATTER. 10. IN THE RESULT, STAY APPLICATIONS OF THE ASSESSE E ARE DISPOSED OFF. 11. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES AND STAY APPLICATI ONS ARE DISPOSED OFF ACCORDINGLY. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- ( PRASHANT MAHARSHI) ( BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 12 TH AUGUST,2016. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT/CHD