Shri Pravinbhai Keshavbhai Patel, Ahmedabad V. The Dy.CIT.,Cent.Circle-1(2), Ahmedabad

ITSSA 307/AHD/2011

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 0291 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 05-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 26-08-2014
• Assessment Year: 2002-2003
• Appeal Filed On: 28-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B KULSHRESTHA SR DR
• Assessee Lawyers: P M PATEL
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

, , , , A, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, A BENCH . .. . . .. . , !' !' !' !', , , , #$ %&'( #$ %&'( #$ %&'( #$ %&'(, , , , )* + ) ' )* + ) ' )* + ) ' )* + ) ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND ANIL CHATURVEDI, ACCOUNTANT MEMBER) IT(SS)A NO.307/AHD/2011 [ASSTT.YEAR : 2002-2003] SHRI PRAVINBHAI KESHAVBHAI PATEL 10, KAMALNAYAN SOCIETY NR. INCOME TAX, NAVRANGPURA AHMEDABAD. PAN : AQDPP 4530 F /VS. DCIT, CENT.CIR.1(2) AHMEDABAD. ( (( (-. -. -. -. / APPELLANT) ( (( (/0-. /0-. /0-. /0-. / RESPONDENT) 1& 2 3 )/ ASSESSEE BY : SHRI P.M. PATEL + 2 3 )/ REVENUE BY : SHRI B. KULSHRESTHA, SR.DR 5 2 &(*/ DATE OF HEARING : 26 TH AUGUST, 2014 678 2 &(*/ DATE OF PRONOUNCEMENT : 05/09/2014 )9 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THIS APPEAL BY THE ASSESSEE FOR THE ASST.YEAR 2002-2003 IS DIRECTED AGAINST THE ORD ER OF THE CIT(A). 2. THE GROUNDS OF APPEAL OF THE ASSESSEE ARE AS UND ER: 1. THE LD.CIT(A) HAS ERRED IN NOT DETERMINING THE ORDER AS ILLEGAL AND ULTRAVIRES AS NO PROPER OPPORTUNITY TO BE HEARD WAS GIVEN TO THE ASSESSEE. IT(SS)A NO.307/AHD/2011 -2- 2. THE LD.CIT(A) IS NOT JUSTIFIED IN CONFORMING PEN ALTY OF R.4,36,968 LEVIED U/S.271(1)(C). 3. THE LD.CIT(A) HAS ERRED IN CONFIRMING THE PENALT Y UNDER SECTION 271(1)(C) IN ABSENCE OF ANY EVIDENCE EITHER A PLOT ADMEASURING 3675, SQUARE YARD IN CINTAN SCHEME WAS ALLOTTED TO APPELLANT OR ANY OF HIS REPRESENTATIVE OR ANY AMOUN T OF RS.12,24,000 WAS PAID TO THE ASSESSEE WHICH AMOUNTS TO CONCEALME NT OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ONLY ISSUE IN THIS APPEAL IS REGARDING LEVY OF PENALTY UNDER SECT ION 271(1)(C) OF THE ACT. HE SUBMITTED THAT FIRST NOTICE UNDER SECTION 271(1) (C) WAS ISSUED ON 30.11.2006 AND THEREAFTER, AFTER A GAP OF MORE THAN 5 MONTHS PENALTY WAS IMPOSED VIDE ORDER DATED 4.5.2007 WITHOUT ISSUING A NY FRESH NOTICE OF HEARING TO THE ASSESSEE. THE LEARNED COUNSEL FOR T HE ASSESSEE SUBMITTED THAT NOTICE OF HEARING WAS ISSUED ON 12.6.2007 I.E. AFTER MORE THAN A MONTH OF PASSING OF PENALTY ORDER IN THIS CASE, RENDERING THE ORDER OF LEVYING PENALTY A NULLITY, BEING VIOLATIVE OF PRINCIPLES OF NATURAL JUSTICE. 4. THE LEARNED DR HAS OPPOSED THE SUBMISSIONS OF TH E LEARNED COUNSEL FOR THE ASSESSEE. HE SUBMITTED THAT IN QUANTUM APPE AL OF THE ASSESSEE, THE ADDITION MADE WAS CONFIRMED BY THE CIT(A). HE REFE RRED TO THE RELEVANT PORTIONS OF THE APPELLATE ORDER PASSED BY THE CIT(A ), WHEREIN HE HAS OBSERVED THAT MISTAKE OF ISSUE OF NOTICE AFTER THE PENALTY ORDER IS A TECHNICAL MISTAKE ONLY. HE RELIED ON THE ORDER OF THE AO AND THE CIT(A). 5. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND ALSO COPIES OF PENALTY NOTICE DATED 30.11.2006 AND 12.6.2007. WE FIND THAT THERE IS A LONG GAP AFTER THE ISSUE OF THE FIRST PENALTY NOTICE DATED 30.11.2006. THEREAFTER, THE A O HAS PASSED THE PENALTY ORDER ON 4.5.2007. WE FIND THAT THE AO IN THE PENALTY ORDER HAS IT(SS)A NO.307/AHD/2011 -3- NOT MENTIONED ANY OTHER SHOW CAUSE NOTICE ISSUED TO THE ASSESSEE BEFORE LEVYING PENALTY UNDER SECTION 271(1)(C) OF THE ACT. THE ORDER LEVYING PENALTY UNDER SECTION 271(1)(C) OF THE ACT WAS PASS ED ON 4.5.2007 AND THE AO HAS ISSUED THE SHOW CAUSE PENALTY NOTICE AFTER A MONTH THEREOF ON 12.6.2007, COPY OF WHICH HAS BEEN PLACED AT PAGE NO .7 OF THE COMPILATION BEFORE US. THE REVENUE COULD NOT CONTROVERT THE FA CT OF ISSUE OF SHOW CAUSE NOTICE DATED 12.6.2007, AFTER THE LEVY OF PEN ALTY ON 4.5.2007, AND THAT OPPORTUNITY OF HEARING TO THE ASSESSEE BEFORE THE LEVY OF PENALTY, IS A STATUTORY REQUIREMENT, WHICH HAS TO BE STRICTLY COM PLIED WITH BY THE REVENUE. IN THESE FACTS OF THE CASE, WE ARE OF TH E VIEW THAT THE ORDER LEVYING PENALTY HAS BEEN PASSED IN VIOLATION OF PRI NCIPLES OF NATURAL JUSTICE, AND THEREFORE, COULD NOT BE SUSTAINED, AND THE PENALTY LEVIED IS CANCELLED ON THIS GROUND ALONE, AND THE GROUNDS OF THE APPEAL OF THE ASSESSEE ARE ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. ( %&'( %&'( %&'( %&'( / ANIL CHATURVEDI) )* + )* + )* + )* + /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD