The DCITGNR Circle, Gandhinagar V. M/s. Creative Infocity Ltd., Gandhinagar

MA 123/AHD/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3524 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 2 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 12-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALBINUS TIRKEY
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH AHMEDABAD , BEFORE: SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER SHRI KUL BHARAT, JUDICIAL MEMBER M. A. NO. 123/AHD/2014 IN ITA NO. 3462/AHD/2010, ASSESSMENT YEAR :2003-04 THE ACIT, GANDHINAGAR RANGE, GANDHINAGAR V/S . CREATIVE INFOCITY LTD. INFOCITY COMPLEX, NR. INDRODA CIRCLE, AIRPORT ROAD, GANDHINAGAR 382009 PAN NO. AABCC5834C (APPELLANT) .. (RESPONDENT) /BY REVENUE SHRI ALBINUS TIRKEY, SR. D.R /BY ASSESSEE SHRI TUSHAR HEMANI, A.R. /DATE OF HEARING 04.09.2015 /DATE OF PRONOUNCEMENT 21.10.2015 O R D E R PER : KUL BHARAT, JUDICIAL MEMBER THIS MISCELLANEOUS APPLICATION FILED BY THE REVENUE SEEKING RECALLING OF THE ORDER DATED 28.02.2014 IN ITA NO. 3462/AHD/2010 , FOR ASSESSMENT YEARS 2003-04. M.A. NO. 123/AHD/14 A.Y. 03-04 (DCIT VS. CREATIVE INFOCITY LTD.) PAGE 2 2. LD. SR. D.R. REITERATED THE SUBMISSIONS AS ARE M ADE IN THE APPLICATION. ON THE CONTRARY, LD. COUNSEL FOR THE ASSESSEE, SHRI TU SHAR HEMANI OPPOSED THE SUBMISSIONS AND SUBMITTED THAT THE ENTIRE APPLICATI ON IS ILL FOUNDED AND IS AGAINST THE SETTLED POSITION OF LAW. LD. COUNSEL S UBMITTED THAT APPLICATION DESERVES TO BE DISMISSED WITH EXEMPLARY COST. BEFO RE THE LD. CIT(A), IT WAS SUBMITTED THAT VARIOUS JUDICIAL PRONOUNCEMENTS WERE RELIED, WHICH WERE NOT CONSIDERED BY LD. CIT(A). THEREFORE, THIS TRIBUNAL HAD RIGHTLY DIRECTED TO CONSIDER THE CASE LAWS. FURTHER, HE SUBMITTED THAT IN THE ISSUE OF LIMITATION ORDER OF LD.CIT(A) IS EX-FACIE NON SPEAKING. HE FU RTHER SUBMITTED THAT PRESENT APPLICATION IS BEYOND THE SCOPE OF SECTION 254 AS T HE REVENUE HAS NOT POINTED OUT ANY MISTAKE APPARENT FROM THE RECORDS. BY THE PRESENT APPLICATION, THE REVENUE IS SEEKING REVIEW OF THE ORDER WHICH IS NOT PERMISSIBLE UNDER THE LAW. 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT LD. SR. D.R. HAS REITERATED THE SUBMIS SIONS AS ARE MADE IN THE MISCELLANEOUS APPLICATION. FOR THE SAKE OF CLARITY , THE RELEVANT CONTENTS IN PARA 2 & 3 OF THE APPLICATION OF REVENUE ARE REPRODUCED AS UNDER: 2. IN THIS RESPECT, THERE IS A NEED TO FILE A MISC ELLANEOUS APPLICATION BEFORE THE HON'BLE ITAT WITH RESPECT TO THE FACTUAL MISTAKE IN THE ORDER OF THE HON'BLE ITAT AS POINTED OUT IN ABOVE REFERRED REPORT. ON GOING THRO UGH THE HON'BLE ITAT'S ABOVE MENTIONED ORDER, IT TRANSPIRES THAT THERE WAS AN AP PARENT MISTAKE IN DECIDING THE APPEAL ORDER, PASSED BY THE HON'BLE ITAT ON FACTS. THE FACTS OF THE CASE ARE AS UNDER: 1. ONE OF THE FINDINGS OF THE ITAT OS THAT THE CIT (A) HAS NOT GIVEN ANY FINDINGS IN RESPECT OF THE DECISION RELIED UPON BY THE ASSESSEE IN NAVJIVAN OIL MILLS 252 ITR 417 AND APEX COURT'S DEC ISION IN THE CASE OF DILIP N SHROFF VS. JCIT 291 ITR 519. IN PAGE-8 O F THE ORDER OF THE CIT(A). THE LD. CIT (A) HAS REFERRED TO THE DECISIO N OF THE HONBLE DELHI HIGH COURT IN THE CASE OF SMT. SANTOSH SHARMA 311 ITR 353, IN THAT DECISION OF THE APEX COURT IN THE CASE OF DILI P N SHROFF 391 ITR 519 HAS ALREADY BEEN DISCUSSED. THUS, THE FINDING O F THE HON'BLE ITAT THAT THE DECISION OF THE APEX COURT WAS NOT CONSIDE RED IS NOT CORRECT. AS REGARDS THE DECISION OF NAVJIVAN OIL MILLS 252 T IR 417, THE LD. CIT (A) HAS IN PAGE -10 CLEARLY STATED THAT IT IS NOT A CASE OF PURE ESTIMATE BUT AN ESTIMATE AFTER CONCEALMENT WAS PROVED AND TH AT THE DECISION RELIED BY THE ASSESSEE IS DISTINGUISHABLE ON FACTS. THE ASSESSEE HIMSELF M.A. NO. 123/AHD/14 A.Y. 03-04 (DCIT VS. CREATIVE INFOCITY LTD.) PAGE 3 HAS NOT STATED IN THE WRITTEN SUBMISSION WHICH IS R EPRODUCED BY THE CIT(A) AS TO HOW THE SAID JUDGMENT APPLIED TO THE F ACTS OF THE ASSESSEE. THUS, THE HON'BLE ITAT HAS ERRED IN STANDING THAT C TT(A) HAS NOT EXAMINED THE APPLICABILITY OF THIS CASE LAW. 3. IN PAGE-9 OF PARA -5 OF THE ORDER, IT HAS BEEN STATED BY THE STATED BY THE ITAT AS FOLLOWS:- 'WE ALSO FIND THAT BEFORE THE LD. CIT(A) THE ASSESS EE HAS RAISED ONE OF THE GROUNDS, IE. PENALTY BEING BARRED BY LIMITATION . THIS GROUND HAS NOT BEEN DECIDED BY THE LD. CIT(A) IN HIS ORDER ' T HUS CONTRARY TO THE FINDING OF THE LD. CIT(A) IN PAGE-8 OF HIS ORDER WH ERE HE HAS STATED AS FOLLOWS:- 'AS FAR AS LIMITATION IS CONCERNED, THE A SSESSEE HAS NOT BEEN ABLE TO SUBSTANTIATE HIS GROUND OF APPEAL BY FACTS, AND THEREFORE THE GROUND OF APPEAL IS DISMISSED'. THUS, THE ORDER OF THE ITAT IS PERVERSE AND CONTRARY TO THE FACTS ON RECORDS. BEFORE LD. CIT(A), FOLLOWING GROUNDS WERE RAISED BY ASSESSEE: 1. THE LEARNED AO HAS ERRED IN LAW AND ON FACTS IN LEVYING THE PENALTY U/S 271(L)(C) OF THE ACT AMOUNTING TO RS.20,01,538/- WH ICH IS WHOLLY UNSUSTAINABLE IN LAW AND ON FACTS AND AS SUCH THE APPELLANT COULD NOT BE CHARGED WITH ANY GUILT OF FURNISHING INACCURATE PARTICULARS OF INCOM E OR CONCEALING PARTICULARS OF INCOME WITHIN MISCHIEF OF SECTION 271(L)(C) OF T HE ACT. THE LEVY OF PENALTY BEING WITHOUT JURISDICTION AND TOTALLY UNCALLED FOR , DESERVES TO BE QUASHED. 2 THE LD. AO HAS ERRED IN LAW AND ON FACTS IN LEVYING PENALTY ON ADDITION WHICH WERE MADE IN ORIGINAL ASSESSMENT ORDER WHICH WAS SU BSEQUENTLY CANCELLED U/S 263 OF THE ACT AND MORE SO OVER THE PROCEEDINGS U/S 263 WAS ALSO QUASHED BY THE HONBLE ITAT. ACCORDINGLY, THE LD. AO HAS ERRED IN LAW AND ON FACTS IN LEVYING OF PENALTY ON SUCH QUANTUM WHICH AT ALL ARE NOT SURVIVED AT APPELLATE AUTHORITY. 3 IN ANY CASE, THE IMPUGNED ORDER LEVYING TH E PENALTY IS BARRED BY LIMITATION. 4 IN ANY CASE, QUANTIFICATION OF THE PENALTY IS E RRONEOUS AND EXCESSIVE. 5 LEARNED AO HAS ERRED IN LAW AND ON FACTS IN INITIATING AND LEVYING PENALTY UNDER SECTION 271(L)(C) OF THE ACT WITHOUT RECORDIN G MANDATORY SATISFACTION AS CONTEMPLATED UNDER THE ACT AT THE TIME OF FRAMING T HE ASSESSMENT ORDER. 6 THE ORDER PASSED BY LD. AO IS WITHOUT PROPE RLY APPRECIATING THE FACT AND THAT HE FURTHER ERRED IN GROSSLY IGNORING VARIOUS SUBMISSIO NS, EXPLANATIONS AND INFORMATION SUBMITTED BY THE APPELLANT FROM TIME TO TIME WHICH OUGHT TO HAVE BEEN CONSIDERED BEFORE PASSING THE IMPUGNED ORDER. M.A. NO. 123/AHD/14 A.Y. 03-04 (DCIT VS. CREATIVE INFOCITY LTD.) PAGE 4 FROM THE GROUND NO.3, IT IS EVIDENT THAT THE ASSESS EE HAD RAISED SPECIFIC GROUNDS WITH REGARD TO PENALTY BEING BARRED BY LIMITATION. WHILE DISPOSING OF THE APPEAL, LD. CIT(A) IN PARA 3 STATED AS UNDER: 3. ALL GROUNDS IN APPEAL ARE AGAINST LEVY OF PENAL TY OF RS.20,01,538/- U/S.271(1)(C) OF THE ACT. THIS TRIBUNAL VIDE ORDER DATED 28.02.2014 WHILE RES TORING THE APPEAL FOR FRESH DECISION HAD OBSERVED THAT THE ISSUE OF LIMITATION WAS NOT DEALT BY THE LD. CIT(A). HOWEVER, THE CONTENTION OF THE REVENUE IS THAT THIS ISSUE WAS DULY DECIDED BY THE LD. CIT(A). FROM THE ORDER OF THE C IT(A), IT TRANSPIRES THAT THE LD.CIT(A) STATED THAT THE ASSESSEE WAS UNABLE TO SU BSTANTIATE THIS GROUND OF FACTS WITHOUT MENTIONING THE RELEVANT FACTS OF THE CASE. HENCE, THERE IS MERIT INTO THE CONTENTION OF LD. COUNSEL FOR THE ASSESSEE THAT ORD ER OF LD. CIT(A) IS NON- SPEAKING ON THIS ISSUE. FURTHER, IT WAS OBSERVED B Y LD. CIT(A) THAT IN SUPPORT OF CONTENTION, ASSESSEE RELIED UPON THE DECISION OF HO NBLE JURISDICTIONAL HIGH COURT IN CASE OF NAVJIVAN OIL MILLS 252 TIR 417 AND THE JUDGMENT OF HONBLE APEX COURT RENDERED IN CASE OF DILIP N SHROFF VS. J CIT 291 ITR 519. IN THE ENTIRE ORDER OF THE LD. CIT(A), HE HAS NOT DISCUSSE D THE FACTS OF THE CASE, WHICH WERE RELIED BY COUNSEL FOR THE ASSESSEE DURING COUR SE OF HEARING BEFORE HIM. LD. CIT(A) HAS SIMPLY STATED THAT THE CASE LAWS AS RELIED BY ASSESSEE ARE DISTINGUISHABLE ON FACTS. IT IS SETTLED POSITION O F LAW THAT THE APPELLATE AUTHORITY IS REQUIRED TO GIVE ITS FINDING ON THE JUDGMENTS AS RELIED BY COUNSEL MERELY STATING THAT THE DECISIONS RELIED ARE DISTINGUISHAB LE ON FACTS WOULD NOT BE SUFFICIENT. UNDER THESE FACTS, WE DO NOT FIND ANY MERIT INTO THE APPLICATION MOVED BY THE REVENUE. MOREOVER, THE REVENUE HAS NO T POINTED OUT ANY MISTAKE APPARENT FROM THE RECORD. THE GROUND TAKEN FOR REC ALLING THE ORDER IS THAT THE ORDER OF THE TRIBUNAL IS PERVERSE AND CONTRARY TO T HE FACTS ON RECORD. THE GROUNDS AS TAKEN IN THE PRESENT APPLICATION DO NOT FALL WITHIN THE SCOPE AND M.A. NO. 123/AHD/14 A.Y. 03-04 (DCIT VS. CREATIVE INFOCITY LTD.) PAGE 5 AMBIT OF SECTION 254 OF THE ACT, AS IT WOULD TANTAM OUNT TO REVIEW OF THE ORDER. HENCE, THE APPLICATION OF REVENUE IS DISMISSED. 4. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y REVENUE IS DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 21 /10/2 015 SD/- SD/- (PRAMOD KUMAR) (KUL BHARAT) ACCOUNTANT MEMBER JUDICIAL MEMBER TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. ! '# $ / CONCERNED CIT 4. $ - / CIT (A) 5. %&' (('# , '# , ! / DR, ITAT, AHMEDABAD 6. '+, / GUARD FILE. BY ORDER/ , / '# , !