Gopal Cold Storage, Anand V. The ACIT.,Cent.Circle-2, Baroda

ITSSA 843/AHD/2010

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 8135 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 27 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 27-09-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 27-09-2011
• Assessment Year: 2000-2001
• Appeal Filed On: 30-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S P TALATI
• Keywords: Opportunity of being heard

Judgement Text

, , . .. . . .. . , , , , . .. . . .. .!'#$ !'#$ !'#$ !'#$ , % % % % & & & & IN THE INCOME TAX APPELLATE TRIBUNAL : A BENCH : AHMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA, J.M. & HONBLE SHRI A.K.GARODIA, A.M.) ( (( ( . .. . .) .).) .) . IT(SS)A NO. 843/AHD./2010 : ) *+- 2000-01 GOPAL COLD STORAGE, ANAND V S- A.C.I.T. C.C.-2, BARODA (PAN : ACYPP 1681L) (-. /APPELLANT) ( /0-. /RESPONDENT ) -. 1 2 / APPELLANT BY : NONE /0-. 1 2 / RESPONDENT BY : SHRI S.P.TALATI, SR.D.R. 3)4 1 5% / DATE OF HEARING : 27/09/2011 6'* 1 5% / DATE OF PRONOUNCEMENT : 27/09/2011 / ORDER PER SHRI T.K. SHARMA, JUDICIAL MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE O RDER DATED 30-11-2010 OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-IV, BAR ODA FOR THE ASSESSMENT YEAR 2000-2001. 2. VARIOUS GROUNDS RAISED BY THE ASSESSEE IN ITS AP PEAL ARE AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LEARNED C.I.T.(A) ERRED IN LAW AND ON FACTS IN NOT DELETING THE PENAL TY OF RS. 11,12,759/- LEVIED U.S. 271 (1)(C) OF THE I.T. ACT, 1961. THE PENALTY LEVIED BEING UNCALLED FOR AND UNWARRANT ED YOUR APPELLANT, THEREFORE PRAYS THAT IN THE INTEREST OF JUSTICE THE PENALTY LEVIED BY THE ASSESSING OFFICER BE DELETED. 2. THE LEARNED C.I.T (A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE ERRED IN LAW IN OUT RIGHT DISMISSING THE APPEAL OF YOUR APPELLANT. THE LEARNED C.I.T.(A) OUGHT TO HAVE CONDONE THE DEL AY PRAYED FOR AND OUGHT TO HAVE DECIDED THE ISSUE ON MERIT IN THE INTEREST OF JUSTICE. IT(SS)A NO. 843-AHD-10 2 3. AT THE TIME OF HEARING, NONE WAS PRESENT FROM TH E SIDE OF THE ASSESSEE. WE, THEREFORE, PROCEED TO DECIDE THIS APPEAL ON THE BAS IS OF SUBMISSIONS MADE BY THE LD. D.R. AND THE MATERIALS AVAILABLE ON RECORD. SHRI S. P.TALATI, SR.D.R., APPEARING ON BEHALF OF THE REVENUE, POINTED OUT THAT BEFORE THE LD. CIT(A), THE ASSESSEE FILED THE APPEAL ON 10.02.2010 AGAINST THE PENALTY ORDER UNDE R SECTION 271(1)(C) OF THE I.T. ACT PASSED ON 20.02.2008. THUS, THERE WAS A DELAY OF AB OUT TWO YEARS IN FILING THE APPEAL BEFORE THE LD. CIT(A). BEFORE THE LD. CIT(A), THE A SSESSEE PLEADED THAT MRS. GITA SURESH PATEL, PARTNER DID NOT HAVE THE KNOWLEDGE RE GARDING ACTION TO BE TAKEN BY HER, AFTER RECEIVING THE PENALTY ORDER. LOOKING TO THE P ERIOD OF DELAY, IN THE IMPUGNED ORDER, THE LD. CIT(A) REFUSED TO CONDONE THE DELAY, FOLLOWING THE DECISION OF THE ITAT IN ITA NOS.1727, 1728 & 1730/AHD/2008 FOR THE ASSES SMENT YEARS 1999-00 TO 2001- 02. THE LD. SR.D.R. ACCORDINGLY SUBMITTED THAT THE ORDER OF LD. CIT(A) DISMISSING THE APPEAL OF THE ASSESSEE AS UNADMITTED BE UPHELD. 4. AFTER HEARING THE LD. D.R., WE HAVE CAREFULLY GO NE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT THE AO LEVIED PENALTY UNDER SECTION 271(1)(C) OF RS.11,12,759/-, VIDE ORDER DATED 24.03 .2008, FOR THE ASSESSMENT YEAR 2001-02. IT IS PERTINENT TO NOTE THAT THERE IS A DE LAY OF ABOUT TWO YEARS IN FILING THE APPEAL AGAINST THE PENALTY ORDER BEFORE THE LD. CIT (A). FOR CONDONATION OF DELAY, THE ASSESSEE PLEADED THAT SMT. GITA SURESH PATEL, PARTN ER COULD NOT FILE THE APPEAL IN TIME DUE TO LACK OF KNOWLEDGE REGARDING ACTION TO BE TAK EN AFTER RECEIVING THE PENALTY ORDER. RECENTLY, THE FULL BENCH OF THE HONBLE SUPR EME COURT IN THE CASE OF CIT-VS- WEST BENGAL INFRASTRUCTURE DEVELOPMENT FINANCE CORP ORATION LTD. REPORTED IN 334 ITR 269 (SC) HELD AS UNDER: LOOKING TO THE AMOUNT OF TAX INVOLVED IN THIS CASE, WE ARE OF THE VIEW THAT THE HIGH COURT OUGHT TO HAVE DECIDED THE MATTER ON THE MERITS. IN ALL SUCH CASES WHERE THERE IS DELAY ON THE PART OF THE DEPARTMENT, WE REQUEST THE HIGH COURT TO CONSIDER IMPOSING COSTS BUT CERTAINLY IT SHOULD EXAMINE THE CASES ON THE MERITS AND SHOULD NOT DISPOSE OF CASES MERELY ON TH E GROUND OF DELAY, PARTICULARLY WHEN HUGE STAKES ARE INVOLVED. ACCORDINGLY, THE IMPUGNED ORDER IS SET ASIDE AND TH E MATTER IS REMITTED TO THE HIGH COURT TO DECIDE THE CASE DE NOVO IN ACCORDANCE WITH LAW. IT(SS)A NO. 843-AHD-10 3 4.1 IN THE CASE BEFORE US ALSO, ON THE ASSESSEE FIR M, THE AO HAS LEVIED PENALTY OF RS.11,12,759/- UNDER SECTION 271(1)(C) OF THE I.T. ACT. LOOKING TO THE AMOUNT OF PENALTY, WE ARE OF THE VIEW THAT THE LD. CIT(A) OUG HT TO HAVE CONDONED THE DELAY AND DECIDED THE APPEAL OF THE ASSESSEE ON MERIT. WE, TH EREFORE, FOLLOWING THE JUDGEMENT OF THE HONBLE SUPREME COURT IN THE CASE OF CIT-VS- WE ST BENGAL INFRASTRUCTURE DEVELOPMENT FINANCE CORPORATION LTD. ( SUPRA ), SET ASIDE THE ORDER OF THE LD. CIT(A) AND DIRECT HIM TO DECIDE THE APPEAL OF THE ASSESSEE ON MERIT, AFTER GIVING OPPORTUNITY OF BEING HEARD TO BOTH THE SIDES. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 7 1 6'* #) + 27/09 /2011 ' 8 1 !4 9 THIS ORDER PRONOUNCED IN COURT ON 27/09/2011. SD/- SD/- (A.K.GARODIA) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 27/09/2011 1 11 1 /5: /5: /5: /5: ;:*5+ ;:*5+ ;:*5+ ;:*5+- -- - 1. -. 2. /0-. 3. 5 3? 4. 3?- - 5. :B! /5) , , 9 6. !$ D7 , E/ G , 9 TALUKDAR/ SR. P.S. IT(SS)A NO. 843-AHD-10 4