Shri Shiv Choukse, Indore V. THE ITO WARD 1(1), Indore

ITA 936/IND/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2228 (ITAT-INDORE)
• Duration Of Justice: 8 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 09-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED
• Assessee Lawyers: SANJAY SODANI
• Section: 143(3)

Judgement Text

SHIV CHOUKSE/I.T.A. NO.936/IND/2016/A.Y.:07-08 PAGE 1 OF 3 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE . . , . . , BEFORE SHRI C.M.GARG, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER SHRI SHIV CHOUKSE, 133, NEW GAURI NAGAR, BEHIND MILAN RESTAURANT, INDORE. V. ITO-1(1), INDORE / APPELLANT / RESPONDENT . . ./ PAN:AGPPC0004R / APPELLANT BY SHRI SANJAY SODANI, CA / RESPONDENT BY SHRI MOHD. JAVED, DR / DATE OF HEARING 09.05.2017 / DATE OF PRONOUNCEMENT 15.05.2017 / O R D E R PER O.P. MEENA, ACCOUNTANT MEMBER : 1. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF CIT(A)-1, INDORE DATED 21.06.2016 AGAINST THE CONFIRMING OF PENALTY OF RS. 6,80,000/- U/S 271(1)(C) OF THE I NCOME-TAX ACT, 1961 (FOR SHORT THE ACT). 2. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ORDER HAS BEEN PASSED ALMOST EX PARTE BEING THE ORDER HAS BEEN PASSED ON 21.06.2016 AND THE ADJOURNMENT OF HEARING WAS LA ST GIVEN FOR 30.03.2015. THE CIT(A) HAS NEITHER CONSIDERED THE S ECOND APPEAL . . ./ I.T.A. NO.936/IND/2016 &(( / ASSESSMENT YEAR: 2007-08 SHIV CHOUKSE/I.T.A. NO.936/IND/2016/A.Y.:07-08 PAGE 2 OF 3 EFFECT OF THE ORDER PASSED BY THE AO NOR GIVEN ANY REASONABLE OPPORTUNITY SUBMITTING THE REPLY. IT WAS SUBMITTED THAT THE CIT(A) HAS NOT CONSIDERED THE ADJUSTMENT OF INCOME DONE BY AO AS PER THE ORDER PASSED BY THE LD. I.T.A.T. BENCH, IT WAS SUBMITTED THAT THE INCOME ARRIVED AT AFTER THE APPEAL EFFECT TO TH E I.T.A.T. ORDER COMES TO RS. 8,53,461/- WHEREAS THE CIT(A) HAS CHAR GED PENALTY ON THE BASIS OF TOTAL INCOME OF RS. 34,56,650/- AS ASSESSED ORIGINALLY. THEREFORE, IT WAS REQUESTED THAT THE QU ANTUM OF APPEAL MAY BE COMPUTED WITH REFERENCE TO THE INCOME FINAL DETERMINATION AFTER APPEAL EFFECT OF THE I.T.A.T. 3. ON THE OTHER HAND, THE LD. SENIOR DR RELIED ON THE CIT(A). 4. WE HAVE CONSIDERED THE FACTS AND WE FIND THAT THE ASSESSMENT WAS MADE U/S 143(3) ON 30.12.2009 BY ASS ESSING TOTAL INCOME AT RS. 34,56,650/- AS AGAINST THE RETU RN OF INCOME OF RS. 2,16,810/-. THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) AND THE MATTER TRAVELLED UP TO THE I.T.A.T. WE FIND THA T THE LD. COUNSEL FOR THE ASSESSEE HAS FILED REVISED COMPUTAT ION OF INCOME AFTER APPEAL EFFECT OF TRIBUNAL ORDER DATED 07.03.2 013 ACCORDING TO WHICH TOTAL INCOME DETERMINATION ITS COMES TO RS . 8,53,460/- HOWEVER, WE ALSO FIND THAT I.T.O., WARD 3 & 4 HAS A LREADY CONSIDERED THE APPEAL EFFECT ORDER OF CIT(A)-1, IND ORE, DATED 08.08.2016 IN I.T.A. NO. 253/2011-12 ACCORDING TO W HICH THE REVISED PENALTY WAS WORKED OUT AT RS. 3,12,096/- ON THE REVISED INCOME COMPUTED AT RS. 6,70,100/- AFTER GIVING APPE AL EFFECT OF CIT(A) ORDER. IN VIEW OF THIS FACT THE GRIEVANCE OF THE ASSESSEE IS ALREADY READDRESSED AND ALLOWED BY THE CIT(A). THER EFORE, THIS APPEAL BECOMES ACADEMIC IN NATURE HOWEVER, THERE IS SOME CONFUSION REGARDING INCOME REMAINED AFTER APPEAL EF FECT WHETHER SHIV CHOUKSE/I.T.A. NO.936/IND/2016/A.Y.:07-08 PAGE 3 OF 3 IT IS 8,53,460/- OR 6,70,100/-. IN VIEW OF THESE FA CTS, WE DIRECT THE AO TO COMPUTE THE LEVY OF QUANTUM OF PENALTY LEVIAB LE U/S 271(1)(C) AT THE FINAL INCOME DETERMINED BY THE APP ELLATE AUTHORITY. THIS GROUNDS IS THEREFORE, ALLOWED FOR S TATISTICAL PURPOSE. 5. IN THE RESULT, THE APPEAL STANDS ALLOWED FOR STATIS TICAL PURPOSE. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 15.5.2017 SD/- (..) /(C.M. GARG) SD/- (..) /(O.P.MEENA) /JUDICIAL MEMBER /ACCOUNTANT MEMBER DATED: 15.05.2017 SB*