Addl. CIT, Jalgaon V. Smt. Sadhana Umakant Dhake, Jalgaon

MA 151/PUN/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6081 (ITAT-PUNE)
• Duration Of Justice: 5 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-01-2011
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 11-08-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ABHAY DAMLE
• Assessee Lawyers: S U PATHAK
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH PUNE BEFORE SHRI I.C. SUDHIR AND SHRI D. KARUNAKARA RAO MA NO. 151/PN/10 (ARISING OUT OF ITA NO. 137/PN/09) A.Y 2005-06 ADDL.CIT RANGE-2, JALGAON .... APPELLANT VS. SMT. SADHANA UMAKANT DHAKE SAHAKAR NAGAR, NEAT SHANTI NAGAR, BHUSAWAL, DIST. JALGAON PAN NO. AFNPD9413Q . RESPONDENT APPELLANT BY : SHRI ABHAY DAMLE RESPONDENT BY : SHRI S.U. PATHAK ORDER PER D. KARUNAKARA RAO AM THIS IS THE MISCELLANEOUS APPLICATION BY THE REVENUE, ARISING OUT OF THE TRIBUNAL ORDER BEARING ITA NO. 137/PN/09 AND ORDER DATED 05-02-2010. 2. DURING THE PROCEEDINGS LD. DR FOR THE REVENUE HAS TAKEN US THROUGH THE MA AND STATED THAT THE TRIBUNAL HAS FINALIZED THE AP PEAL ON THE PRESUMPTION THAT THE PENALTY INVOLVED WAS LEVIED U/S. 271E OF THE AC T BUT THE FACT IS THAT THE PENALTY WAS LEVIED U/S. 271D. FURTHER, HE MENTIONED T HAT THE REASONABLE CAUSE AND THE MERITS OF THE SAME WERE NOT DISCUSSED AND THE RE IS NO FINDING ON THE BONAFIDE FOR TAKING OR ACCEPTING ANY LOAN OR DEPOSIT I N CONTRAVENTION OF THE PROVISIONS OF SEC. 269SS OF THE ACT. FURTHER, HE MENTI ONED IN APPLYING VARIOUS ORDERS OF THE TRIBUNAL, THE TRIBUNAL HAS ERRED IN APPLYIN G THE CASES PERTAINING TO CO-OPERATIVE SOCIETIES TO THE INSTANT CASE WHOSE STA TUS IS AN INDIVIDUAL. 3. ON THE OTHER HAND LD. COUNSEL FOR THE ASSESSEE MEN TIONED THAT THE ASSESSEE TOOK US THROUGH ORDER OF THE TRIBUNAL AND STAT ED THAT THE GROUNDS DEALT BY THE TRIBUNAL ARE PROPER AND THEY RELATE TO THE LEVY OF PENALTY U/S. 271D, THE ORDER IN THE CASES OF SHRI ARIHANT NAGARI SAH. PAT. SANSTHA MARYADIT AND VISHAL PURANDAR NAGARI SAHAKARI PAT. SANSTHA MARYADIT DE CISIONS DEAL WITH MA NO. 151/PN/10 ARISING OUT OF ITA NO. 137/PN/09 PAGE 2 OF2 DEFAULTS BOTH U/S. 269SS AND 269 TT OF THE ACT, ATT RACTING THE PENALTIES U/S. 271D AND 271E. THEREFORE, THESE CASE LAWS ARE APPLICA BLE TO THE CASE OF THE ASSESSEE ALSO. SO FAR AS THE STATUS CO-OPERATIVE SOCI ETIES VS. INDIVIDUAL IS CONCERNED IT SHOULD NOT MAKE ANY DIFFERENCE AS THE AS SESSEE WAS A MEMBER OF THE CO-OPERATIVE SOCIETY AND THE LOANS WERE TAKEN AS THE PAYER DID NOT GIVE THE LOAN OR ADVANCE BY WAY OF A CROSS CHEQUE. CONSIDERING THE STATUS OF THE PAYER I.E. CO-OPERATIVE SOCIETY THE REASONABLE CAUSE RELIED UPON BY THE ASSESSEE IS STILL COVERED BY THE ABOVE REFERRED DECISIONS OF THE TRIBUNAL. REGARDING THE TYPOGRAPHICAL ERROR WITH REGARD TO THE USE OF SEC. 271E IN PLACE OF 271D, LD. COUNSEL ARGUED THAT SINCE IT IS A RECTIFIABLE MISTAKE BY WAY OF CORRIGENDUM. 4. WE HAVE HEARD BOTH THE PARTIES PERUSED THE ORDERS OF THE TRIBUNAL, MA AND THE IMPUGNED ORDER SOUGHT TO BE RECTIFIED. AFTER CO NSIDERING THE ARGUMENTS WE AGREE WITH THE ARGUMENTS OF LD. COUNSEL AND THE ORD ERS OF THE TRIBUNAL RELIED UPON BY THE COUNSEL ARE APPLICABLE TO THE PENALTIES LEVIED U/S. 271D OF THE ACT. THEREFORE, MA FILED BY THE REVENUE HAS TO BE DISMISSE D BUT FOR THE RECTIFICATION WITH REFERENCE TO USE OF SEC. 271E IN PLACE OF 271 D.TO THIS EXTENT THE ORDER IS RECTIFIED BY WAY OF A GLOBAL AMENDMENT. ACCORDINGLY, THE MA FILED BY THE REVENUE IS PARTLY ALLOWED. 5. IN THE RESULT, THE MA OF THE REVENUE IS PARTLY ALLOWED . ORDER PRONOUNCED ON 19 TH JANUARY, 2011. SD/- SD/- (I. C. SUDHIR) (D.KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBE R PUNE DATED THE 19 TH JANUARY, 2011 R COPY OF THE ORDER IS FORWARDED TO : 1. ADDL.CIT, RANGE-2, JALGAON 2. ASSESSEE 3. CIT(A)-II, NASHIK 4. CIT-II, NASHIK 5. D.R. ITAT PUNE BENCH, PUNE BY ORDER ASSISTANT REGISTRAR I.T.A.T PUNE