DCIT, CC-II, Ludhiana V. Sh. Raj Kumar Avasthi, Ludhiana

MA 139/CHANDI/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 5876 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 3 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-02-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 21-01-2021
• Assessment Year: 2013-2014
• Appeal Filed On: 22-10-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOK KHANNA
• Keywords: Set aside
• Section: 143(3); 153A; 274; 254(2); 132

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH B CHANDIGARH !, ' # $ , $ % & ' ( ) , *+ # BEFORE: SMT. DIVA SINGH, JM & SMT.ANNAPURNA GUPTA, AM M.A. NOS. 139 & 140/CHD/2019 IN I.T.A. NOS. 261 & 262/CHD/2018 (A.Y-2013-14 & 2014-15) THE DCIT, CC-II, LUDHIANA. VS SHRI RAJ KUMAR AVASTHI, HOUSE NO. 172, COL. GURDIAL SINGH ROAD, CIVIL LINES, LUDHIANA. ./ PAN NO: AASPA1953E / APPELLANT / RESPONDENT M.A. NOS. 141 & 142/CHD/2019 IN I.T.A. NOS. 263 & 264/CHD/2018 (A.Y-2013-14 & 2014-15) THE DCIT, CC-II, LUDHIANA. VS SHRI MUNISH AVASTHI, HOUSE NO. 172, COL. GURDIAL SINGH ROAD, CIVIL LINES, LUDHIANA. ./ PAN NO: AAEPA1819K / APPELLANT / RESPONDENT / REVENUE BY : SHRI ASHOK KHANNA, ADDL. CIT / ASSESSEE BY : SHRI ASHWANI KUMAR, CA ! ' # / DATE OF HEARING : 21.01.2021 $%&'() # / D ATE OF PRONOUNCEMENT : 01.02.2021 HEARING CONDUCTED VIA WEBEX *,/ ORDER PER DIVA SINGH BY THE PRESENT MISCELLANEOUS APPLICATIONS FILED BY THE DEPARTMENT U/S 254(2) OF THE INCOME TAX ACT, PRAYER FOR RECALL OF THE CONSOLIDATED ORDER DATED 23.05.2019 IN THE CASE OF RESPECTIVE MA-139 TO 142/CHD/2019 A.Y. 2013-14, 2014-15 PAGE 2 OF 6 ASSESSEES AS MENTIONED HEREIN ABOVE FOR 2013-14 AND 2014-15 ASSESSMENT YEARS IN ITA NOS. 261 TO 264/CHD/2019 IS MADE ON VARIOUS GROUNDS. 2. THE LD. AR INVITING ATTENTION TO PAPER BOOK FILE D SUBMITTED THAT ON IDENTICAL FACTS AND GROUNDS, IDENTICAL MISC ELLANEOUS APPLICATIONS FILED BY THE DEPARTMENT HAD COME UP FO R CONSIDERATION BEFORE THE ITAT IN VARIOUS GROUP CASE S NAMELY ; M.A. NOS. 147 & 148/CHD/2019 IN ITA NOS. 490 & 491/CHD/2008 IN THE CASE OF DCIT VS M/S SPORTKING I NDIA LTD., LUDHIANA ( ORDER DATED 07.01.2020), M.A. NOS. 145 & 146/CHD/2019 IN ITA NOS. 265 & 266/CHD/2018 IN THE CASE OF SHRI SADHU RAM RUPAL & MARVEL DYERS & PROCESSORS PV T. LTD., LUDHIANA (ORDER DATED 14.01.2020) AND M.A. NO. 144/ CHD/2019 IN ITA NO. 267/CHD/2018 IN THE CASE OF DCIT VS SHRI CHETAN RUPAL, LUDHIANA (ORDER DATED 19.11.2020) WHEREIN SI MILAR DEPARTMENTAL REQUESTS HAVE BEEN CONSTANTLY DISMISSE D BY THE ITAT. ACCORDINGLY, IT WAS HIS SUBMISSION THAT SINC E THE ARGUMENTS AND GROUNDS ARE SIMILAR AND FACTS ALSO RE MAIN THE SAME, THE RESPECTIVE MISCELLANEOUS APPLICATIONS BY THE REVENUE DO NOT HAVE ANY MERIT. 3. THE LD. SR.DR DID NOT OPPOSE THE SAID PRAYER, HO WEVER HE RELIED UPON THE MISCELLANEOUS APPLICATIONS FILED. MA-139 TO 142/CHD/2019 A.Y. 2013-14, 2014-15 PAGE 3 OF 6 4. NO DISTINGUISHING FACT OR CIRCUMSTANCE WAS PLEAD ED BY THE REVENUE IN ORDER TO CANVASS THAT THE VIEW MAY NOT B E FOLLOWED. 5. ATTENTION OF THE PARTIES WAS INVITED TO THE ORDE R-SHEET ENTRY DATED 07.01.2021 ON WHICH DATE MISCELLANEOUS APPLIC ATION FILED IN THE CASE OF SHRI RAJ KUMAR AVASTHI HAD COME UP F OR HEARING AND SIMILAR PRAYER HAD BEEN MADE ON BEHALF OF THE L D. AR WHICH WERE NOT OPPOSED BY THE REVENUE. HOWEVER, FOR THE PURPOSES OF CLUBBING THE CONNECTED APPEALS CONSIDERED IN THE CO NSOLIDATED ORDER, ADJOURNMENT HAD BEEN GRANTED. 6. ACCORDINGLY, ON A CONSIDERATION OF THE MATERIAL AVAILABLE ON RECORD WHEREIN WE FIND THAT IN THE FACTS OF THE PRE SENT MISCELLANEOUS APPLICATION ALSO, DEPARTMENTAL APPLIC ATION MOVED, IS SEEN TO BE IDENTICAL IN THE REMAINING THREE CASE S ALSO, IT IS SEEN THAT THE PLEADINGS, FACTS AND CIRCUMSTANCES AR E IDENTICAL. FOR READY REFERENCE, WE REPRODUCE THE SAME FROM M.A . NO. 139/CHD/2019 AS UNDER : MISCELLANEOUS APPLICATION IN RESPECT OF ORDER DATED 23.05.2019 PASSED IN ITA NO. 261/CHD/2018 FOR ASSESSMENT YEAR 2013 -14. THAT A SEARCH U/S 132 OF THE INCOME TA.X ACT, 1961 WAS CONDUCTED AT THE RESIDENTIAL PREMISES OF THE ASSESSEE ON 24.10.2013. THE ASSESSM ENT IN THIS CASE WAS COMPLETED U/S 153A R.W.S. 143(3) OF THE INCOME TAX ACT, 1961 ON 2 3.03.2016 AT IN INCOME OF RS.86,91,080/-. FURTHER, A PENALTY U/S 271AAB AMOUN TING TO RS.5,00,000/- WAS IMPOSED ON THE ASSESSEE ON THE UNDISCLOSED INCOME AMOUNTING TO RS.50,00,000/- ADMITTED BY THE ASSESSEE U/S 132(4) OF THE INCOME TAX ACT BY ORDER DATED 29.09.2016. AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE LD.CIT(A)-5, LU DHIANA. 2. THAT THE LD. CIT(A)-5, LUDHIANA VIDE ORDER DATED 07 .12.2017 IN APPEAL NO.421/IT/CIT(A)-5/LDH/2016-17 HAD CONFIRMED THE LE VY OF THE PENALTY U/S 271AAB. AGGRIEVED WITH THIS ORDER, THE ASSESSEE FILED APPEA L BEFORE THE HONBLE ITAT, CHANDIGARH VIDE ITA NO.261/CHD/2018. MA-139 TO 142/CHD/2019 A.Y. 2013-14, 2014-15 PAGE 4 OF 6 3. THAT THE HON'BLE ITAT PASSED ORDER ON THE ASSESSEE S APPEAL, WHICH WAS RECEIVED IN THE OFFICE OF PR. CIT(C), LUDHIANA ON 0 3.06.2019. THE HONBLE ITAT HELD THE PENALTY ORDER VOID ABINITIO ON THE ONLY GROUND THAT PENALTY WAS LEVIED VIDE ORDER DATED 29.09.2016 BEFORE OBTAINING APPROVAL OF THE JCIT AS THE STATUTORY APPROVAL OF THE JOINT COMMISSIONER OF INCOME TAX, CENTRAL RANGE, LUDHIANA WAS ACCORDED ON 30.09.2016. 4. THAT WHILE ADJUDICATION OF THE JOINT APPEALS OF SH. RAJ KUMAR AVASTHI IN ITA 261 & 262/CHD/2018 AND SH. MUNISH AVASTHI IN ITA NO.263 & 264/CHD/2018 FOR THE A.Y.2013-14 & 2014-15, THE HON'BLC ITAT RELYING ON DECISIONS IN CASE OF M/S SPORTKING (INDIA) LTD, IN ORDER DATED 22.04.20 1 9 IN ITA. NO 490 & 491/CHD/2018 AND IN CASE OF SH. CHETAN RUPAL IN ORDER DATED 24.04.2019 IN ITA N O.267/CHD/2018 HAD HELD AS UNDER:- '7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIA L AVAILABLE ON RECORD. ACCORDINGLY, IN THE ABSENCE OF ANY CHANGE IN FACTS AND CIRCUMSTANCES AND THE POSITION OF LAW CANVASSED BEFORE US, WE RESPECTFULLY FOLLOWING THE ORDER OF THE CO-ORDINATE BENCH HOLD THAT THE PENALTY ORDER PASSED BY THE ASSESSING OFFICER IN THE PECULIAR FACTS AND CIRCUMSTANCE OF THE PRESENT CASE DES ERVES TO THE QUASHED. THE IMPUGNED ORDER IS SET ASIDE AND THE GROUND RAISED BY THE RESPECTIVE ASSESSEES, ACCORDINGLY, ARE ALLOWED. ORDERED ACCORDINGLY. SAID ORDER WAS PR ONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 8. IN THE RESULT, APPEALS OF THE ASSESSEES ARE ALLOWED' 5. THAT THE PERUSAL OF THE RECORDS SHOW THAT THE AS SESSING OFFICER HAD FORWARDED THE DRAFT PENALTY ORDER U/S 271AAB OF THE I.T.ACT, 1961 FOR APPROVAL OF JCIT, CENTRAL RANGE, LUDHIANA AS PER THE PROVISIONS OF SECTION 274 OF TH E I.T.ACT, 1961. THE DRAFT ORDER WAS DATED AS 29.09.2016 AND THE APPROVAL WAS ACCORDED B Y THE JCIT .CENTRAL RANGE, LUDHIANA TO THE ASSESSING OFFICER VIDE LETTER NO. 1 032 DATED 30.09.2016. INADVERTENTLY, THE DATE OF ORDER ON THE PENALTY ORDER ISSUED REMAI NED UNCHANGED AS 29.09.2016 WHEREAS IN THE PENALTY ORDER THE ASSESSING OFFICER HAD CLEARLY INDICATED THAT THE PRIOR APPROVAL UNDER SECTION 274(2) OF THE INCOME TAX ACT WAS ACCORDED BY THE ADDL./JOINT CIT, CENTRAL RANGE, LUDHIANA VIDE HIS LETTER NO. 10 32 DATED 30.09.2016. THUS, THE ERROR IN THE PENALTY ORDER PASSED BY THE ASSESSING OFFICE R IS ONLY TYPOGRAPHICAL AS THE DATE RECORDED ON THE DRAFT PENALTY ORDER SENT TO THE JCI T, CENTRAL RANGE, LUDHIANA CLEARLY REMAINED UNCHANGED ON THE ORDER WHICH WAS PASSED AF TER PRIOR APPROVAL ON 30.09.2016. THE ABOVE FACTS COULD BE SUMMARIZED AS BELOW: NAME OF THE ASSESSEE A.Y. DATE OF SUBMISSION OF DRAFT ORDER DATE OF PENALTY ORDER IN DRAFT ORDER DATE OF APPROVAL DATE MENTIONED IN PENALTY ORDER (FINAL ORDER) DATE OF SERVICE SH. RAJ KUMAR AVASTHI 2013-14 29.09.2016 29.09.2016 30.09.2016 29.09.2016 30.09.2016 6 . THAT IT MAY ALSO BE NOTED THAT IN THE LAST PARA THE PENALTY ORDER HAS A CLEAR MENTION OF DISPATCH NO AND DATE OF JCIT'S LETTER CO NVEYING THE APPROVAL U/S 274(2)(B) OF THE INCOME TAX ACT, 1961 WHICH CANNOT BE MENTIONED A DAY BEFORE OF ITS ISSUANCE BY JCIT. MOREOVER, THE PENALTY ORDER AND RELEVANT NOTI CE OF DEMAND HAS BEEN SERVED UPON ASSESSEE ON 30.09.2016 I.E. THE DAY ON WHICH APPROV AL WAS ISSUED BY JCIT AND ALSO BEFORE EXPIRING OF LIMITATION. IT MAY ALSO NOT BE O UT OF PLACE TO MENTION THAT THE CORRECT PARTICULARS OF JCIT'S APPROVAL IS MENTIONED IN THE PENALTY ORDER SERVED UPON ASSESSEE BEFORE EXPIRY OF LIMITATION. AS SUCH NOT CHANGING O F DATE OF ORDER (FROM THE DATE OF DRAFT ORDER SUBMITTED BY ASSESSING OFFICER TO THE JCIT FO R APPROVAL U/S 274(2) OF THE INCOME TAX ACT 1961) IS AN INADVERTENT CLERICAL MISTAKE WH ICH, IS OTHERWISE COVERED U/S 292B OF THE INCOME TAX ACT, 1961. MA-139 TO 142/CHD/2019 A.Y. 2013-14, 2014-15 PAGE 5 OF 6 7. THAT IN VIEW OF THESE FACTS THERE WAS NO OCCASIO N FOR THE HON'BLE ITAT TO DELETE THE PENALTY ORDER AS THE PENALTY ORDER WAS PASSED AFTER THE REQUISITE PRIOR APPROVAL OF THE JCIT/ADDITIONAL CIT AS PER THE PROVISIONS OF THE SE CTION 274(2) OF THE INCOME TAX ACT. ALSO THE ABOVE MENTIONED ERROR IN THE PENALTY ORDER IS ONLY TYPOGRAPHICAL, WHICH COULD BE CURED AS PER THE PROVISIONS OF SECTION 29213 OF THE I.T.ACT, 1961 WHICH IS PRODUCED AS UNDER:- 'NO RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS O R OTHER PROCEEDING, FURNISHED OR MADE OR ISSUED OR TAKEN OR PURPORTED T O HAVE BEEN FURNISHED OR MADE OR ISSUED OR TAKEN IN PURSUANCE OF ANY OF T HE PROVISIONS OF THIS ACT SHALL BE INVALID OR SHALL BE DEEMED TO BE INVAL ID MERELY BY REASON OF ANY MISTAKE, DEFECT OR OMISSION IN SUCH RETURN OF I NCOME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEEDING IF SUCH RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEEDING IS IN SUBSTANCE AND EFFECT IN CONFORMITY WITH OR ACCORDING TO THE INTEN T AND PURPOSE OF THIS ACT.' 8. THAT THE HON'BLE CALCUTTA HIGH COURT WHILE DECIDING THE MATTER OF MULCHAND RAMPURIA VS ITO(2001)252 ITR 758(CAL) HAS HELD THAT 'AFTER ENACTMENT OF SECTION 292B WHICH CAME INTO FORCE ON 01.10.1975, NO NOTICE SHAL L BE DEEMED TO BE INVALID MERELY BY REASON OF ANY MISTAKE, DEFECT OR OMISSION THEREIN I F THE NOTICE IS IN SUBSTANCE AND EFFECT IN CONFORMITY WITH OR ACCORDING TO THE INTENT AND PURP OSE OF THE ACT.' 9. THAT THE RATIO OF THIS CASE IS SQUARELY APPLICABLE ON THE FACTS OF THE INSTANT CASE ALSO WHEREIN, THE SUBSTANCE AND EFFECT OF THE PENAL TY ORDER IS IN CONFORMITY OF THE PROVISION OF THE ACT AND AS SUCH THE INADVERTENT MISTAKE IS C OVERED BY THE PROVISION OF SECTION 292B OF THE INCOME TAX ACT, 1961. IN THE LIGHT OF THE ABOVE, IT IS PRAYED THAT THE HO N'BLE ITAT BENCH MAY RECTIFY THE MISTAKE IN ITS ORDER. 6.1. ACCORDINGLY, IN THE PECULIAR FACTS AND CIRCUMS TANCES, RESPECTFULLY FOLLOWING THE ORDERS OF THE CO-ORDINAT E BENCH IN; I) M.A. NO. 145/CHD/2019 IN THE CASE OF DCIT VS SHR I SADHU RAM RUPAL & M.A. NO. 146/CHD/2019 IN THE CASE OF DCIT V S M/S MARVEL DYERS & PROCESSORS PVT. LTD., LUDHIANA II) M.A. NO. 144/CHD/2019 IN ITA NO. 267/CHD/2018 I N THE CASE OF DCIT VS SHRI CHETAN RUPAL, LUDHIANA III) M.A. NOS. 147 & 148/CHD/2019 IN ITA NOS. 490 & 491/CHD/2008 IN THE CASE OF DCIT VS M/S SPORTKING I NDIA LTD., LUDHIANA WE FIND THERE IS NO MERIT IN THE DEPARTMENTAL MISCE LLANEOUS APPLICATION AND ACCORDINGLY, THE SAME IS DISMISSED. 7. SINCE THERE IS NO CHANGE IN FACTS, CIRCUMSTANCES AND MA-139 TO 142/CHD/2019 A.Y. 2013-14, 2014-15 PAGE 6 OF 6 PLEADINGS IN RESPECTIVE THREE M.A.S, FOR IDENTICAL REASONS RELYING UPON THE ORDERS OF THE CO-ORDINATE BENCHES, REMAINI NG THREE MISCELLANEOUS APPLICATIONS ARE ALSO DISMISSED. SAID ORDER WAS PRONOUNCED AT THE TIME OF HEARING ITSELF VIA WEBEX. 5. IN THE RESULT, ALL THE MISCELLANEOUS APPLICATION S OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED ON 1 ST FEBRUARY,2021. SD/- SD/- ( % & ' ( ) ) ( ! ) (ANNAPURNA GUPTA) (DIVA SINGH) *+ # / ACCOUNTANT MEMBER ' # / JUDICIAL MEMBER POONAM *% + ,- . -( / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. * * ! / / CIT 4. * * ! / ()/ THE CIT(A) 5. -23 4, * # *4), 67839/ DR, ITAT, CHANDIGARH 6. 38 :'/ GUARD FILE *% + ! / BY ORDER, ; / ASSISTANT REGISTRAR