Asst. Comm. of Income-tax, Pune V. M/s. Seco Tools India Pvt. Ltd., Pune

MA 153/PUN/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9169 (ITAT-PUNE)
• Duration Of Justice: 8 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 22-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK MISHRA
• Assessee Lawyers: ANUJ DESHMUKH
• Keywords: Initiation of penalty proceedings

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI R.S. PADVEKAR JUDICIAL MEMBER AND SHRI R.K. PANDA ACCOUNTANT MEMBER MA NO. 153/PN/2011 ARISING OUT OF ITA NO. 161/PN/2010 (ASSTT.YEAR : 2004-05) ASST. COMMISSIONER OF INCOME TAX, CIRCLE-6, PUNE .. APPELLANT VS. M/S. SECO TOOLS INDIA PVT. LTD., GAT NO. 582, PUNE NAGAR ROAD, KOREGAON BHIMA, TAL: SHIRUR, DISTRICT PUNE 422 216. .. RESPONDENT PAN NO. AAACS 8793F APPELLANT BY : SRI ANUJ DESHMUKH RESPONDENT BY : SRI ALOK MISHRA DATE OF HEARING : 31-08-2012 DATE OF PRONOUNCEMENT : 05-09-2012 ORDER PER R.K. PANDA, AM THIS MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE TRIBUNAL IN ITA NO. 161/PN/2010 ORDER DATED 08-06-2011 FOR ASSESSMENT YEAR 2004-05. 2. IN THIS CASE THE AO HAD LEVIED PENALTY U/S.271( 1)(C) AMOUNTING TO RS.47,94,989/- WHICH WAS UPHELD BY THE CIT(A). ON FURTHER APPEAL BEFORE THE TRIBUNAL BY THE ASSESSEE, THE TRIBUNAL VIDE ORDER D ATED 08-06-2011 CANCELLED THE PENALTY ON ONE OF THE GROUND THAT PENALTY PROCEEDIN GS UNDER THIS SECTION WERE NOT INITIATED IN THE PAST. AGAINST THIS OBSERVATION OF THE TRIBUNAL THE REVENUE HAS FILED THIS MA STATING THAT THE GROUND TAKEN BY THE TRIBUN AL IS FACTUALLY INCORRECT AS SUCH PROCEEDINGS HAVE BEEN INITIATED AND ARE PENDING FOR ASSESSMENT YEARS 2002-03 AND 2003-04. 2 3. THE LEARNED DR SUBMITTED THAT FOR THE ASSESSMEN T YEARS 2002-03 AND 2003-04 PENALTY PROCEEDINGS U/S.271(1)(C) HAVE BEEN INITIATED AND ARE PENDING SINCE THE APPEALS FILED BEFORE THE CIT(A) ARE YET T O BE DECIDED. ONLY FOR ASSESSMENT YEAR 2000-2001 NO PENALTY HAS BEEN INITI ATED. HE SUBMITTED THAT THE ORDER FOR ASSESSMENT YEAR 2004-05 HAS BEEN PASSED U /S.143(3)/147 ON 28-12- 2007. SIMILARLY ORDERS FOR ASSESSMENT YEARS 2002-0 3 AND 2003-04 HAVE BEEN PASSED U/S.143(3)/147 ON 23-12-2009. THE TRIBUNAL PASSED THE ORDER CANCELLING THE PENALTY ON 08-06-2011. IN HIS ORDER FOR THE AS SESSMENT YEARS 2002-03 AND 2003-04, THE AO HAS CATEGORICALLY MENTIONED THAT PE NALTY PROCEEDINGS U/S.271(1)(C) OF THE INCOME TAX ACT IS BEING INITIA TED FOR FURNISHING INACCURATE PARTICULARS OF INCOME. UNDER THESE CIRCUMSTANCES IT WAS A MISTAKE ON THE PART OF THE TRIBUNAL TO MENTION THAT THE AO DID NOT INITIAT E PENALTY PROCEEDINGS U/S.271(1)(C) OF THE ACT IN RESPECT OF THE ADDITION S OF INTEREST EXPENDITURE IN THOSE YEARS. HE ACCORDINGLY SUBMITTED THAT SINCE THE ORD ER OF THE TRIBUNAL IS PASSED ON INCORRECT APPRECIATION OF FACTS, THEREFORE, AN APPA RENT MISTAKE HAS CREPT IN THE ORDER OF THE TRIBUNAL AND THEREFORE THE SAME SHOULD BE EI THER MODIFIED OR THE ORDER BE RECALLED FOR FRESH ADJUDICATION. 4. THE LEARNED COUNSEL FOR THE ASSESSEE IN HIS SUBM ISSION WHILE SUPPORTING THE ORDER OF THE TRIBUNAL SUBMITTED THAT IT IS NOT THE ONLY GROUND ON WHICH THE TRIBUNAL HAS DECIDED THE APPEAL. HE SUBMITTED THAT IT IS ON LY ONE OF THE REASONS AND THE TRIBUNAL HAS ALSO RELIED ON CERTAIN DECISIONS WHILE CANCELLING THE PENALTY LEVIED BY THE AO AND UPHELD BY THE CIT(A). THEREFORE, THERE IS NO APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL AND THEREFORE THE MA FILED BY THE REVENUE SHOULD BE DISMISSED. 5. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES AND PERUSED THE RECORDS. WE FIND WHEN THE TRIBUNAL DECIDED THE APPEAL FOR ASSESSMENT YEAR 3 2004-05 ON 08-06-2011 THE ASSESSMENT ORDER FOR ASSE SSMENT YEARS 2002-03 AND 2003-04 WERE ALREADY PASSED WHEREIN THE AO HAD INIT IATED PENALTY PROCEEDINGS U/S.271(1)(C) OF THE INCOME TAX ACT. IN THE PAPER BOOK FURNISHED BY THE ASSESSEE BEFORE THE TRIBUNAL ONLY THE ASSESSMENT ORDER FOR A SSESSMENT YEAR 2000-2001 IS ENCLOSED WHICH SHOWS THAT THERE IS NO INITIATION OF PENALTY PROCEEDINGS U/S.271(1)(C) OF THE INCOME TAX ACT. THE ORDER FOR ASSESSMENT YEAR 2002-03 HAS NOT BEEN FILED BY THE ASSESSEE IN THE PAPER BOOK. HOWEVER, THE TRIBUNAL HAS RECORDED THAT NO PENALTY PROCEEDINGS U/S.271(1)(C) FOR THE ASSESSMENT YEAR 2002- 03 HAVE BEEN INITIATED. THIS BEING A FACTUAL ERROR IN THE ORDER OF THE TRIBUNAL, THEREFORE, WE FIND MERIT IN THE MA FILED BY THE REV ENUE THAT AN APPARENT MISTAKE HAS CREPT IN THE ORDER OF THE TRIBUNAL FOR WHICH IT REQUIRES RECTIFICATION U/S.254(2) OF THE INCOME TAX ACT. WE, THEREFORE, RECALL THE O RDER OF THE TRIBUNAL AND DIRECT THE REGISTRY TO FIX THE HEARING OF THE APPEAL IN DU E COURSE. 6. IN THE RESULT, THE MA FILED BY THE REVENUE IS AL LOWED. PRONOUNCED IN THE OPEN COURT ON THIS THE 5 TH DAY OF SEPTEMBER 2012 SD/- S D/- (R.S. PADVEKAR) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 5 TH SEPTEMBER 2012 SATISH COPY TO: 1) ASSESSEE 2) DEPARTMENT 3) CIT(A)-III, PUNE 4) DCIT CIRCLE-6, PUNE 5) THE ASSESSING OFFICER, CIRCLE-6, PUNE 6) THE DR B BENCH, I.T.A.T., PUNE 7) GUARD FILE. BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY, I.T.A.T., PUNE