DCIT, Thrissur V. Sri V.R.Sukumaran, Thrissur

ITSSA 3/COCH/2009

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7540 (ITAT-COCHIN)
• Duration Of Justice: 3 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 19-04-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 28-03-2012
• Assessment Year: misc
• Appeal Filed On: 16-03-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S R SENAPATI

Judgement Text

1 IT(SS)A 03/COCH/2009 IN THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKARA N (AM) I.T(SS)A. NO.03/COCH/2009 (BLOCK PERIOD 01-04-1989 TO 12-01-2000) DY.CIT, CENT. CIR. VS SHRI V.R. SUKUMARAN S.T. NAGAR, THRISSUR VALIYAVEETTIL HOUSE RAMAPADAM KARAT LANE THRISSUR PAN : AGERPS1587Q (APPELLANT) (RESPONDENT) DATE OF HEARING : 28-03-2012 DATE OF PRONOUNCEMENT : 19-04-2012 APPELLANT BY : SHRI S.R. SENAPATI RESPONDENT BY : NONE O R D E R PER N.R.S. GANESAN (JM) THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF COMMISSIONER OF INCOME-TAX(A)-I, KOCHI DATED 24-12-2008 AND PERTAINS TO THE BLOCK PERIOD 01- 04-1989 TO 12-01-2000. 2. THE REVENUES APPEAL WAS POSTED ON VARIOUS OCCAS IONS, FINALLY ON 17-01- 2012. THEREAFTER, THE APPEAL WAS ADJOURNED TO 15-02 -2012. ON 15-02-2012, THE APPEAL WAS ADJOURNED TO 28-03-2012 AS A LAST CHANCE A T THE REQUEST OF THE ASSESSEE. WHEN THE APPEAL WAS TAKEN UP FOR HEARING ON 28-03-2012 NO ONE 2 IT(SS)A 03/COCH/2009 APPEARED FOR THE ASSESSEE. THEREFORE, WE HAVE HEAR D THE LD.DR AND PROCEED TO DISPOSE OF THE APPEAL ON MERIT. 3. SHRI S.R. SENAPATI, THE LD.DR SUBMITTED THAT THE ASSESSEE FILED A PETITION BEFORE THE SETTLEMENT COMMISSION TO SETTLE THE TAX DISPUTE. THE SETTLEMENT COMMISSION BY AN ORDER DATED 03-07-2007 DECIDED THE M ATTER. CONSIDERING THE CO-OPERATION EXTENDED BY THE ASSESSEE IMMUNITY WAS G RANTED U/S 245H(1) OF THE INCOME-TAX ACT FROM IMPOSITION OF PENALTY AND PROSEC UTION UNDER THE INCOME-TAX ACT ON THE CONDITION THAT THE IMMUNITY GRANTED SHAL L BE WITHDRAWN IF IT IS SUBSEQUENTLY FOUND THAT THE CONDITIONS PRESCRIBED I N SECTION 245H 1(A) /(2) ARE NOT COMPLIED WITH. ON A QUERY FROM THE BENCH WHAT IS THE CONDITION PRESCRIBED U/S 245H 1(A) /(2), THE LD.DR SUBMITTED THAT THE AS SESSEE HAS TO PAY THE TAX QUANTIFIED BY THE SETTLEMENT COMMISSION WITHIN THE TIME PRESCRIBED. ADMITTEDLY, THE ASSESSEE HAS NOT PAID THE TAX, THEREFORE, THE I MMUNITY GRANTED BY SETTLEMENT COMMISSION IS NOT AVAILABLE TO THE ASSESSEE. THE A PPELLATE COMMISSIONER WITHOUT CONSIDERING THE PROVISIONS OF SECTION 245H 1(A) /(2) DELETED THE PENALTY ON THE GROUND THAT THERE WAS A BREACH OF PROCEDURAL MATTER. ACCORDING TO THE LD.REPRESENTATIVE, THE ASSESSEE CANNOT CLAIM FOR IM MUNITY FROM LEVY OF PENALTY SINCE THE CONDITION PRESCRIBED U/S 245H 1(A) /(2) W AS NOT SATISFIED. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD.DR AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, THE SETT LEMENT COMMISSION GRANTED IMMUNITY SUBJECT TO CONDITION PRESCRIBED IN SECTION 245H 1(A) /(2) OF THE ACT. FOR THE PURPOSE OF CONVENIENCE, WE ARE REPRODUCING THE RELEVANT PARAGRAPH FROM THE ORDER OF THE SETTLEMENT COMMISSION: 3 IT(SS)A 03/COCH/2009 33. CONSIDERING THE CO-OPERATION EXTENDED BY THE AB OVE THREE APPLICANTS IN THE COMPLETION OF THE PRESENT SETTLEM ENT PROCEEDINGS AND THE TRUE AND FULL DISCLOSURE MADE, WE GRANT IMM UNITY U/S 245H(1) FROM THE IMPOSITION OF PENALTY AND PROSECUT ION UNDER THE INCOME TAX ACT AND RELEVANT SECTIONS OF IPC, RELATI NG TO THE MATTERS COVERED IN THE PRESENT ORDER. HOWEVER, THE IMMUNIT Y SO GRANTED SHALL BE WITHDRAWN, IF IT IS SUBSEQUENTLY FOUND THA T THE CONDITIONS PRESCRIBED IN SUB-SECTION 1(A) /(2) OF SEC.245H ARE SATISFIED. IN VIEW OF THE ABOVE, ONCE THE CONDITION PROVIDED I N SECTION 245H 1(A) /(2) IS NOT COMPLIED WITH, THE IMMUNITY GRANTED SHALL STAND VAC ATED. THIS PROVISION WAS NOT CONSIDERED BY THE COMMISSIONER OF INCOME-TAX(A) WHIL E DELETING THE PENALTY. IN OTHER WORDS, THE COMMISSIONER OF INCOME-TAX(A) HAS N OT TAKEN INTO CONSIDERATION THE PROVISIONS OF SECTION 245H 1(A) / (2) OF THE ACT. ACCORDINGLY, THE ORDER OF THE COMMISSIONER OF INCOME-TAX(A) IS SET A IDE AND THE ISSUE OF PENALTY IS REMANDED BACK TO THE FILE OF THE COMMISSIONER OF INC OME-TAX(A). THE COMMISSIONER OF INCOME-TAX(A) SHALL DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER CONSIDERING THE PROVISIONS OF SECTION 245 H 1(A) /(2) OF THE ACT. THE ASSESSEE SHALL BE GIVEN REASONABLE OPPORTUNITY OF H EARING BY THE COMMISSIONER OF INCOME-TAX(A). 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 19 TH DAY OF APRIL, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 19 TH APRIL, 2012 PK/- 4 IT(SS)A 03/COCH/2009 COPY TO: 1. DY.CIT, CENT.CIR., THRISSUR 2. SHRI V.R. SUKUMARAN, VALIYAVEETTIL HOUSE, RAMAPADAM KARAT LANE, THRISSUR 3. THE COMMISSIONER OF INCOME-TAX(A)-I, COCHI 4. THE COMMISSIONER OF INCOME-TAX, CENTRAL, KOCHI 5. THE DR (TRUE COPY) BY ORDER ASSTT.REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, KOCHI