Deputy Commissioner of Income-tax, Circle -1, Jalgaon V. Smt. Taradevi Ratanlal Bafna, Jalgaon

MA 2/PUN/2019

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 2248 (ITAT-PUNE)
• Duration Of Justice: 4 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 19-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHABANA PARVEEN
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE . , , BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / MA NO.02/PUN/2019 (ARISING OUT OF ITA NO.2304/PUN/2014) / ASSESSMENT YEAR : 2009-10 DCIT, CIRCLE-1, JALGAON. ....... / APPELLANT / V/S. SMT. TARADEVI RATANLAL BAFNA, PROP. OF R.C. BAFNA JEWELLERS, 91, SUBHASH CHOWK, JALGAON-425001. PAN : AADPB9424E / RESPONDENT REVENUE BY : SMT. SHABANA PARVEEN ASSESSEE BY : SHRI SUNIL GANOO / DATE OF HEARING : 05.04.2019 / DATE OF PRONOUNCEMENT : 05.04.2019 / ORDER PER D. KARUNAKARA RAO, AM: THIS MISCELLANEOUS APPLICATION ARISES FROM THE REVENUES APPEAL IN ITA NO.2304/PUN/2014 VIDE ORDER DATED 19.07.2018 FOR THE ASSESSMENT YEAR 2009-10. 2. THROUGH THIS MISCELLANEOUS APPLICATION, LD. DR FOR THE REVENUE CONTENDED THAT WHILE RECORDING THE SATISFACTION FOR INITIATION OF THE PENALTY PROCEEDINGS, ASSUMES THE LANGUAGE USED IN THE SATISFACTION FOR INVOKING THE PROVISIONS OF SECTION 271(1)(C) OF THE ACT IS NOT IMPORTANT AND THE TRIBUNAL NEEDS TO SEE THE INTENTION. THE RELEVANT PRAYER, IN THIS REGARD, IS EXTRACTED HEREUNDER :- IT SEEMS PLAIN THAT THE PROVISIONS OF SECTION 271(1)(C) OF THE ACT IS DIRECTED AGAINST THE ASSESSEES WHO DIRECTLY AVOID THEIR DUTY TO PAY TAX. IT IS OPINED 2 MA NO.02/PUN/2019 THAT SECTION 271(1)(C) IS ATTRACTED NOT IN THE CASE OF HONEST ASSESSEES BUT ARE DIRECTED AGAINST DISHONEST ASSESSEES WHO HAVE AMASSED WEALTH AND ARE ULTIMATELY CAUGHT UP BY THE DISCOVERY OF EVASION. IS SUCH A PROVISION TO BE CONSTRUED IN A MANNER BY WHICH ITS VERY PURPOSE MAY BE ERODED BE RENDERED NUGATORY ON THE TECHNICAL GROUND BY NOT STRIKING THE RELEVANT PORTION IN NOTICE OR MENTIONING BOTH THE LIMBS IN THE PENALTY ORDER. AN INADVERTENT ERROR MAY OCCUR. BUT DOES THE ERROR BE CONSTRUED IN SUCH A MANNER THAT THE WHOLE PROVISION MAY FALL FLAT. THEREFORE, TO FIX THE TERMINUS AD QUEM UNDER SECTION 271(1)(C) NOT STRIKING OR IN THE NOTICE ISSUED OR MENTIONING BOTH LIMBS IN THE ORDER ASSESSEE EVADING THE TAX WOULD GO SCOT FREE THE COURT MAY WELL BE PLACING A PREMIUM ON TAX EVASION. TO NEGATE THE SECTION ONLY ON GROUND OF NOT STRIKING OR IN THE NOTICE ISSUED OR MENTIONING BOTH LIMBS IN THE ORDER WOULD, THEREFORE, BE RUNNING AGAINST THE INTENT AND THE MANDATE OF PARLIAMENT AND EQUALLY TENDING TO A CONSTRUCTION WHICH MAY DEFEAT AND FRUSTRATE ITS ATTEMPT TO CURB TAX EVASION. IN VIEW OF THE AFORESAID FACTUAL AND LEGAL MATRIX OF THE CASE, IT IS REQUESTED TO KINDLY REVISE THE IMPUGNED ORDER QUASHED ON TECHNICALITY AND ADJUDICATE ON MERITS AND THEREBY ALLOW THE MISCELLANEOUS APPLICATION FILED. 3. THE LD. AR FOR THE ASSESSEE VEHEMENTLY JUSTIFIED THE ORDER OF THE TRIBUNAL AND SUBMITTED THAT THE ASSESSING OFFICER NEEDS TO HAVE CLARITY WITH RESPECT TO THE LIMB OF CLAUSE (C) OF SECTION 271(1) OF THE ACT. HE SUBMITTED THAT THE TRIBUNAL PASSED SPEAKING ORDER AND IT SHOULD NOT CALL FOR ANY RECTIFICATION. 4. CONSIDERING THE SUBMISSION OF THE LD. DR AND LD. AR, WE FIND THE ABOVE PRAYER OF THE REVENUE CANNOT BE ENTERTAINED IN VIEW OF THE JURISDICTIONAL HIGH COURT JUDGEMENT IN THE CASE OF CIT VS. SHRI SAMSON PERINCHERY (2017) 392 ITR 4 (BOM.) AS WELL AS THE HONBLE KARNATAKA HIGH COURT JUDGEMENT IN THE CASE OF CIT VS. MANJUNATHA COTTON AND GINNING FACTORY 359 ITR 565, WHICH ARE BINDING JUDGEMENTS ON THE TRIBUNAL TO FOLLOW THE SAME. CONSIDERING THE SAME, THE MISCELLANEOUS APPLICATION OF THE REVENUE IS DISMISSED. 3 MA NO.02/PUN/2019 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON 05 TH DAY OF APRIL, 2019. SD/- SD/- ( /VIKAS AWASTHY) ( . /D. KARUNAKARA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 05 TH APRIL, 2019. SUJEET / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A)-II, NASHIK. 4. THE CIT-II, NASHIK. 5. , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE.