A.Balakrishna Rao, Hyderabad V. ACIT, Hyderabad

ITSSA 3/HYD/2010

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 8537 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 3 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 11-02-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 18-01-2011
• Assessment Year: misc
• Appeal Filed On: 08-02-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AMLAN TRIPATHY
• Assessee Lawyers: P MURALI MOHAN RAO

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B ', HYDERABAD BEFORE SHRI G.C.GUPTA, VICE PRESIDENT AND SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER IT(SS)A NO.3/HYD/10 (BLOCK PERIOD FROM 1.4.198 8 TO 11.2.1999) SHRI A.BALAKRISHNA RAO, HYDERABAD ( PAN ADEPA 0695 E ) V/S. ASSTT. COMMISSIONER OF INCOME- TAX, CIRCLE 4(1), HYDERABAD (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI P.MURALIMOHAN RAO RESPONDENT BY : SHRI AMLAN TRIPATHY O R D E R PER G.C.GUPTA, VICE PRESIDENT: THIS APPEAL BY THE ASSESSEE FOR THE BLOCK PERIOD FROM 1 .4.1988 TO 11.2.1999 IS DIRECTED AGAINST THE ORDER OF THE COMMISSIO NER OF INCOME- TAX(APPEALS). 2. THE ONLY ISSUE IN THIS APPEAL IS REGARDING VALI DITY OF PENALTY IMPOSED UNDER S.158BFA OF THE INCOME TAX ACT, 1961. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO SPEAKING ORDER WAS PASSED BY THE CIT(A) AND HE HAS MERELY REPROD UCED THE ORDER OF THE TRIBUNAL IN THE QUANTUM APPEAL OF THE ASSESSEE. HE SUBMITTED THAT PENALTY PROCEEDINGS ARE INDEPENDENT OF THE ASSESSMENT PR OCEEDINGS. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS OPPO SED THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE. HE SUBM ITTED THAT THE CIT(A) HAS APPLIED HIS JUDICIAL MIND TO THE ISSUE BEFOR E HIM AND HAS RECORDED THAT THERE IS NO SPECULATION OR CONJECTURE INVOLVED AND THE PENALTY WAS IT(SS)A NO.3./HYD/10 SHRI A.BALAKRISHNA RAO, HYDERABAD 2 CORRECTLY IMPOSED BY THE ASSESSING OFFICER. HE RELIED ON THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAVE P ERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A). WE FIND THAT NO SPEAKING ORDER WAS PASSED BY THE CIT(A). THE CIT(A) HAS MERELY R EPRODUCED THE ORDER OF THE TRIBUNAL DATED 30 TH APRIL, 2007 IN THE QUANTUM APPEAL OF THE ASSESSEE, CONFIRMING THE ADDITION MADE IN THE ASSESSMENT. THE CIT (A) HAS NOT GIVEN ANY REASONING IN SUPPORT OF HIS CONCLUSION THAT THERE WAS NO SPECULATION OR CONJECTURE INVOLVED OR ANY ROUGH ESTIMATION INVOLVED I N THIS CASE AND THAT THE ARGUMENT OF THE ASSESSEE THAT THIS IS A MERE ESTIMATIO N, IS NOT BORNE BY THE FACTS ON RECORD. IT IS NOW WELL SETTLED THAT THE PE NALTY PROCEEDINGS ARE INDEPENDENT OF THE ASSESSMENT PROCEEDINGS AND THE ASSESSEE I S AT LIBERTY TO SHOW THAT IT WAS NOT GUILTY OF CONCEALMENT OF INCOME OR FOR FILING OF INACCURATE PARTICULARS OF INCOME. MERE FACT THAT THE ADDI TION MADE IN THE ASSESSMENT OF THE ASSESSEE IS SUSTAINED BY THE TRIBUNAL IS NO G ROUND TO CONCLUDE THAT THE ASSESSEE IS GUILTY OF CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. IN THESE FACTS OF THE C ASE, WE ARE OF THE VIEW THAT THE ORDER OF THE CIT(A) IS LIABLE TO BE SET ASIDE TO HIS FILE WITH A DIRECTION TO PASS A DE NOVO APPELLATE ORDER IN ACCORDANCE WITH LAW, AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO BOTH TH E PARTIES. THE CIT(A) IS DIRECTED TO PASS A SPEAKING ORDER ON THE ISSUE OF VALID ITY OF PENALTY IMPOSED BY THE ASSESSING OFFICER UNDER S.158BFA OF THE ACT. WE DIRECT ACCORDINGLY. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 11.2.2011 SD/- SD/- (CHANDRA POOJARI) (G.C.GUPTA) ACCOUNTANT MEMBER VICE PRESIDENT DT/- 11.2.2011 IT(SS)A NO.3./HYD/10 SHRI A.BALAKRISHNA RAO, HYDERABAD 3 COPY FORWARDED TO: 1. SHRI A.BALAKRISHNA RAO, 3-5-170/C/1, NARAYANAGUD A, HYDERABAD 2. ASST. COMMISSIONER OF INCOME-TAX, CIRCLE 4(1), HYDERA BAD 3. COMMISSIONER OF INCOME-TAX(APPEALS)-V, HYDERABAD 4. COMMISSIONER OF INCOME-TAX IV HYDERABAD 5. THE DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S