HABIB KHAN, Jaipur V. ACIT, Jaipur

ITA 985/JPR/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9724 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 09-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA; POONAM RAI
• Section: 131

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 HKKXPAN] YS[KK LNL; ] DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 985/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 HABIB KHAN, P/O-M/S H.K. EXPORT CORPORATION, 2259, TAKIYA YAQEEN SHAH, CH.- TOP KHANA HUZOORI, JAIPUR. CUKE VS. A.C.I.T., CIRCLE-2, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ABBPK 5855 P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SMT. POONAM RAI (DCIT) & SHRI R.A. VERMA (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 23/02/2017 MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 27/02/2017 VKNS'K@ ORDER PER: BHAGCHAND, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 31/08/2016 PASSED BY THE LD. CIT(A)-I, JAIPUR FOR T HE A.Y. 2008-09. THE ONLY ISSUE INVOLVED IN THIS APPEAL IS CONFIRMING TH E LEVY OF PENALTY OF RS. 61,770/- MADE U/S 271(1)(C) OF THE INCOME TAX ACT, 1 961 (HEREINAFTER REFERRED AS THE ACT). ITA 985/JP/2016_ HABIB KHAN VS. ACIT 2 2. THE ASSESSING OFFICER PASSED ORDER IN THIS CASE O N 29/11/2010 AND A DETAILED PENALTY ORDER WAS PASSED AFTER CONSIDERIN G THE VARIOUS CASE LAWS. AFTER GIVING REASONABLE OPPORTUNITY OF BEING H EARD TO THE ASSESSEE, THE LD ASSESSING OFFICER IMPOSED PENALTY U/S 271(1) (C) OF THE ACT, 1961 AT RS. 61,770/-, WHICH IS 100% OF TAX SOUGHT TO BE E VADED ON CONCEALING INCOME. 3. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OF FICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD CIT(A), WHO HAD CONFIRMED THE PENALTY BY OBSERVING AS UNDER:- I HAVE DULY CONSIDERED THE SUBMISSIONS OF THE APPELLANT, PENALTY ORDER AND THE MATERIAL PLACED ON RECORD. IT IS NOTED FROM THE ASSESSMENT ORDER THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO REQUIRED THE APPELLANT TO PRODUCE M/S LOTUS IMPEX, HOWEVER, NO COMPLIANCE WAS MADE. EVEN THE SUMMONS ISSUED BY THE AO TO M/S LOTUS IMPEX U/S 131 OF THE ACT WAS RECEIVED BACK UNSERVED. EVEN THE INCOME TAX INSPECTOR ON SPOT VERIFICATION, REPORTED THAT M/S L OTUS IMPEX DO NOT EXIST AT THE ADDRESS PROVIDED BY THE APPELLANT. ON THE BASIS OF THESE SPECIFIC FACTS, TH E AO MADE THE SPECIFIC ADDITION AND NOT THE ESTIMATED ON E AS CLAIMED BY THE APPELLANT. THE RELIANCE UPON THE ORDE R OF LD. CIT(A) FOR THE AY 2006- 07 IS OF NO HELP TO THE ITA 985/JP/2016_ HABIB KHAN VS. ACIT 3 APPELLANT AS PRINCIPLE OF RES JUDICATA DO NOT APPLY TO INCOME TAX PROCEEDING AND EACH ASSESSMENT YEAR IS SEPARATE AND INDEPENDENT ONE, AS THE FACT MAY DIFFE R IN DIFFERENT ASSESSMENT YEAR. IT IS, THEREFORE, HELD T HAT THE AO WAS JUSTIFIED IN IMPOSING PENALTY OF RS. 61,770/- U/S 271(1) (C) OF THE ACT FOR FURNISHING INACCURATE PAR TICULARS OF INCOME. 4. NOW THE ASSESSEE IS IN APPEAL BEFORE THIS BENCH. THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THE IN QUANTUM APPEAL, ADDITION HAS BEEN SET ASIDE BY THE HONBLE BENCH VIDE ORDER DATED 23/ 10/2015 PASSED IN ITA NO. 415/JP/2013. WHEN QUANTUM APPEAL IS SET ASI DE, THERE IS NO POINT TO DECIDE THE PENALTY PROCEEDING ACCORDINGLY. THEREFORE, HE PRAYED TO RESTORE THE SAME TO THE ASSESSING OFFICER. 5. AT THE OUTSET, THE LD SR. DR HAS ACCEPTED THE AS SESSEES PROPOSAL. 6. I HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THE COORDINAT E BENCH VIDE ORDER DATED 23/10/2015 PASSED IN ITA NO. 415/JP/2013 HAD SET ASIDE THIS ISSUE TO THE ASSESSING OFFICER, THEREFORE THE PENALTY PRO CEEDING IS ALSO SET ASIDE TO THE ASSESSING OFFICER AND HE IS FREE TO IM POSES PENALTY AS PER LAW. ACCORDINGLY, THIS APPEAL IS ALSO SET ASIDE TO T HE ASSESSING OFFICER. ITA 985/JP/2016_ HABIB KHAN VS. ACIT 4 7. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED F OR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 27/02/2017. SD/- HKKXPAN (BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 27 TH FEBRUARY, 2017 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI HABIB KHAN, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE A.C.I.T., CIRCLE-2, JAIPUR. 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. 985/JP/2016) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR