SHRI SANJAY KUMAR JAISWAL, Jaipur V. INCOME TAX OFFICER, WARD, BEHROR

ITA 937/JPR/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9803 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 06-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MAHLA JCIT DHK
• Keywords: Additional evidence; Set aside
• Section: 271(1)(c); 274; 68

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH FOT; IKY JKO] U;KF;D LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JUDICIAL MEMBER VK;DJ VIHY LA -@ ITA NO. 937/JP/2018 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2009-10 SHRI SANJAY KUMAR JAISWAL, N.H.8, DELHI ROAD, BEHROR, ALWAR -301701. CUKE VS. I.T.O., WARD-BEHROR. LFKK;H YS[KK LA -@THVKBZVKJ LA -@ PAN/GIR NO.: ADUPJ 3796 K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKS J LS @ ASSESSEE BY: SHRI VEDANT AGARWAL (ADV) JKTLO DH VKSJ LS @ REVENUE BY : SHRI A.K. MAHLA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 25/09/2019 MN?KKS 'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 26/09/2019 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 05/06/2018 OF LD. CIT(A), ALWAR ARISING FROM THE PENALTY ORDER PASSED U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (IN SHORT, THE ACT) FOR THE A.Y. 2009-10. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS & CIRCUMSTANCES OF THE CASE LD. LOWER AUTHORITIES GROSSLY ERRED IN LEVYING AND CONFIRMING THE PENALTY OF RS. 1,33,072/- U/S 271(1)(C) OF THE ACT. 2. ON THE FACTS & CIRCUMSTANCES OF THE CASE LD. A.O. GROSSLY ERRED IN PASSING THE PENALTY ORDER UNDER SECTION 271(1)(C) WITHOUT ISSUE ITA 937/JP/2018 SANJAY KUMAR JAISWAL VS ITO 2 OF STATUTORY NOTICE UNDER SECTION 271(1)(C) READ WITH SECTION 274 OF THE INCOME THE ACT 1961. IN FACT, NOTICE HAS BEEN ISSUED FOR NONCOMPLIANCE OF NOTICE ISSUED UNDER SECTION 142(1)/142(2) OF THE INCOME TAX ACT 1961. 3. NOTICE UNDER SECTION 274 IS ISSUED IN PRINTED FORM WHERE ALL THE PROVISIONS RELATING TO VARIOUS PENALTIES ARE MENTIONED AND LAW LAID DOWN BY HON'BLE SUPREME COURT IN THE CASE OF EMERALD MEADOWS 242 TAXMAN 180 (SC) AND HON'BLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON GINNING FACTORY 359 ITR 0565(KARNATAKA) HAS NOT BEEN FOLLOWED BY THE LD A.O. 4. PENALTY PROCEEDINGS U/S 271(1)(C) HAS BEEN INITIATED FOR CONCEALMENT OF INCOME WHEREAS PENALTY HAS BEEN IMPOSED FOR BOTH LIMB OF SECTION 271(1)(C) I.E. FOR CONCEALMENT AND FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THIS ACTION OF LD A.O. IS UNLAWFUL AND ILLEGAL. 2. THE A.O. HAS LEVIED THE PENALTY IN RESPECT OF ADDITION OF RS. 5.00 LACS MADE U/S 68 OF THE INCOME TAX ACT, 1961 (IN SHORT, THE ACT). THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT IN THE QUANTUM APPEAL, THE TRIBUNAL HAS SET SIDE THE ISSUE TO THE RECORD OF THE A.O. FOR FRESH ADJUDICATION AFTER CONDUCTING A PROPER VERIFICATION AND EXAMINATION OF THE CREDITORS. 3. ON THE OTHER HAND, THE LD DR HAS NOT DISPUTED THE FACT THAT IN THE QUANTUM APPEAL, THE MATTER IS SET ASIDE TO THE RECORD OF THE A.O. 4. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND CAREFULLY PERUSAL OF THE RECORD AT THE OUTSET IT IS NOTED THAT IN THE QUANTUM APPEAL IN ITA ITA 937/JP/2018 SANJAY KUMAR JAISWAL VS ITO 3 NO. 1975/JP/2016, THE COORDINATE BENCH OF THIS TRIBUNAL VIDE ORDER DATED 10/05/2019 HAS REMITTED THE MATTER BACK TO THE RECORD OF THE A.O. IN PARA 5 TO 7 AS UNDER: 5. WE ALSO FOUND THAT NO ENQUIRY WAS MADE BY LEARNED ASSESSING OFFICER, ASSESSEE SUBMITTED THE AFFIDAVITS OF ALL PERSONS ALONG WITH PROOF OF IDENTITY & CREDIT WORTHINESS BEFORE LD. CIT(A) AS AN ADDITIONAL EVIDENCE. 6. WE ALSO FOUND THAT THE AMOUNT TAKEN WAS REPAID BY THE ASSESSEE WHICH HAS BEEN ACCEPTED BY THE CREDITORS IN THEIR AFFIDAVIT. LD CIT(A) HAS REPRODUCED THE LIST OF CREDITORS TOTAL 28 PERSONS. FROM THE PERUSAL OF ABOVE LIST IT IS CLEAR THAT THE ASSESSEE HAS SUBMITTED THE NAME, ADDRESSES, AMOUNT OF LOAN, ID PROOF, CREDIT WORTHINESS OF CREDITOR AND THE YEARLY INCOME OF CREDITOR. SUMMONS WERE ISSUED TO 10 CREDITORS ONLY OUT OF TOTAL 28 CREDITORS. OUT OF 10 SUMMONS 5 WERE SERVED & 5 COULD NOT BE SERVED AS NO PROPER ADDRESS WAS MENTIONED BY A.O. IN THE SUMMONS. NAME OF VILLAGE WAS MENTIONED WRONG. FATHER'S NAME WAS NOT MENTIONED. 7. IN VIEW OF THE ABOVE DISCUSSION AND KEEPING IN VIEW THE SUBSTANTIAL INTEREST OF JUSTICE, WE RESTORE THE MATTER BACK TO THE FILE OF THE A.O. FOR MAKING ENQUIRY IN TERMS OF OUR ABOVE DIRECTIONS. NEEDLESS TO SAY, THE ASSESSEE SHOULD BE GIVEN DUE OPPORTUNITY OF HEARING BEFORE DECIDING THE ISSUE AFRESH. THEREFORE, WHEN THE ADDITION ITSELF IS NO MORE IN EXISTENCE THEN THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT IN RESPECT OF ADDITION MADE U/S 68 OF THE ACT WOULD NOT SURVIVE, HENCE, THE SAME IS DELETED. I MAY ITA 937/JP/2018 SANJAY KUMAR JAISWAL VS ITO 4 CLARIFY THAT THE A.O. IS AT LIBERTY TO TAKE APPROPRIATE STEPS IF NEEDED AS PER OUTCOME OF THE SET ASIDE QUANTUM PROCEEDINGS. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH SEPTEMBER, 2019. SD/- FOT; IKY JKO (VIJAY PAL RAO) U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 26 TH SEPTEMBER, 2019 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI SANJAY KUMAR JAISWAL, BEHROR (ALWAR). 2. IZR;FKHZ @ THE RESPONDENT- THE I.T.O., WARD-BEHROR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 937/JP/2018) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR