Shri Mayur J. Gor, Bhuj V. The Assistant Commissioner of Income Tax, Central Circle-2, RAJKOT-GUJARAT

ITSSA 53/RJT/2012

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 3112 (ITAT-RAJKOT)
• Duration Of Justice: 4 year(s) 5 month(s) 20 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 23-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 21-02-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 03-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MJ RANPURA
• Keywords: Invalid notice; Opportunity of being heard

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT [ CONDUCTED THROUGH E-COURT AT AHMEDABAD ] BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ./ I.T.A. NO.53/RJT/2012 ( / ASSESSMENT YEAR : 2007-08) SHRI MAYUR J. GOR C-122 MUNDRA RECLAMATION SITE NR.ODHAV PARK GATE NO.3, BHUJ / VS. ASST.CIT CENTRAL CIRCLE-2 RAJKOT ./ ./ PAN/GIR NO. AIZPG 4991 R ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI M.J. RANPURA, AR ! / RESPONDENT BY : SHRI YOGESH PANDEY, CIT-DR ' #$% ! & / DATE OF HEARING 21/02/2017 '( ! & / DATE OF PRONOUNCEMENT 23/02/2017 / O R D E R PER PRADIP KUMAR KEDIA, AM : THE PRESENT APPEAL IS FILED BY THE ASSESSEE IS DIR ECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-IV , AHMEDABAD [CIT(A) IN SHORT] DATED 29/06/2012 PERTAINING TO ASSESSMENT YEAR (AY) 2007-08. ITA NO.53/RJT/2 012 SHRI MAYUR J.GOR VS. ASST.CIT ASST.YEAR 2007-08 - 2 - 2. THE RELEVANT GROUNDS OF APPEAL READ AS UNDER:- 1.0 THE GROUNDS OF APPEAL MENTIONED HEREUNDER ARE WITHO UT PREJUDICE TO ONE ANOTHER 2.0 THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV , AHMEDABAD [CIT(A)] ERRED ON FACTS AS ALSO IN CONFIR MING THE LEVY OF PENALTY U/S.271(1)(C) OF THE ACT OF 47,000/-. THE PENALTY U/S.271(1)(C) OF THE ACT MAY KINDLY BE DELE TED. 3. THE ASSESSEE HAS ALSO FILED ADDITIONAL GROUND WH EREBY THE ASSESSEE HAS RAISED LEGAL QUESTION THAT IN THE ABSENCE OF AN Y MENTION IN THE NOTICE ISSUED UNDER S.274 R.W.S. 271(1)(C) OF THE ACT SPEC IFYING THE NATURE OF CHARGE AGAINST THE ASSESSEE AS ENUMERATED IN SECTIO N 271(1)(C), THE PENALTY ORDER UNDER S.271(1)(C) IN CONSEQUENCE OF S UCH INVALID NOTICE STANDS VITIATED AND THEREFORE REQUIRES TO BE QUASHE D. 4. SINCE THE ASSESSEE HAS RAISED LEGAL OBJECTION BY WAY OF ADDITIONAL GROUND WHICH GOES TO THE ROOT OF THE MATTER, WE DEE M IT APPROPRIATE TO DEAL WITH THE SAME AT THE OUTSET. 5. WE TAKE NOTE OF THE LEGAL ARGUMENT RAISED ON BEH ALF OF THE ASSESSEE THAT APPROPRIATE CHARGE HAS NOT BEEN SPECIFIED IN T HE SHOW-CAUSE NOTICE ISSUED TO THE ASSESSEE. A PERUSAL OF THE NOTICES I SSUED UNDER S.274 R.W.S.271(1)(C) SHOWS THAT THE RELEVANT PART OF THE NOTICES SO ISSUED HAVE NOT BEEN STRUCK OFF. THUS, IT CAN BE INFERRED THAT THERE IS LACK OF APPLICATION OF MIND BY THE AO. THE VAGUENESS AND A MBIGUITY IS CLAIMED ITA NO.53/RJT/2 012 SHRI MAYUR J.GOR VS. ASST.CIT ASST.YEAR 2007-08 - 3 - TO HAVE PREVENTED THE ASSESSEE OF REASONABLE OPPORT UNITY TO DEFEND ITS CASE. THUS, DEFINITE PREJUDICE HAS CAUSED TO THE A SSESSEE. IT IS THE REQUISITE OF LAW THAT THE NOTICE TO THE ASSESSEE S HOULD BE SPECIFIC. THE REVENUE HAS NOT BEEN ABLE TO POINT OUT THAT THE SO- CALLED AMBIGUOUS NOTICE HAS NOT IMPAIRED OR PREJUDICED THE RIGHT OF THE ASSESSEE TO REASONABLE OPPORTUNITY OF BEING HEARD. IT THEREF ORE MUST FOLLOW THAT THE NOTICES ISSUED PROPOSING PENALTY WERE ILLUSORY AND THE ASSESSEE WAS INCAPACITATED TO DEFEND ITS CASE. THE DECISIONS QUOTED ON BEHALF OF THE ASSESSEE IN THE CASE OF SAMSON PERINCHERY (BOMBAY) IN TAX APPEAL NO.1154 OF 2014 AND OTHERS (BOM.) AND CIT VS. MAN JUNATHA COTTON & GINNING FACTORY REPORTED AT (2013) 359 ITR 565 (KAR .) ARE THUS APPLICABLE TO THE FACTS OF THE CASE. THE PENALTY N OTICES, THUS, ISSUED ARE RENDERED INVALID AND CANNOT BE SUSTAINED. THE PENA LTY ORDER APPEALED AGAINST IS THUS BAD IN LAW AND STANDS CANCELLED. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE COURT ON 23/02/20 17 AT AHMEDABAD. SD/- SD/- ( RAJPAL YADAV) ( PRADIP KUMAR KEDIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD ; DATED 23/02/2017 ..#, $.,#../ T.C. NAIR, SR. PS ITA NO.53/RJT/2 012 SHRI MAYUR J.GOR VS. ASST.CIT ASST.YEAR 2007-08 - 4 - / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. - & ' .& / CONCERNED CIT 4. ' .& ( ) / THE CIT(A)-IV, AHMEDABAD 5. 2$34 ,&,# , , /DR,ITAT, RAJKOT 6. 4?@ A% / GUARD FILE. / BY ORDER, 2& ,& //TRUE COPY// / ( DY./ASSTT.REGISTRAR) %&, / ITAT, RAJKOT 1. DATE OF DICTATION .. 21.2.17 (DICTATION-PAD 5- PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER .. 21.2.17 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 23.2.17 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 23.2.17 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER