MR. MURLIDHAR S. AGRAWAL, Nagpur V. ITO, WARD, -4(1), Nagpur

MA 20/NAG/2013

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3497 (ITAT-NAGPUR)
• Duration Of Justice: 2 year(s) 3 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-09-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2007-2008
• Appeal Filed On: 15-05-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NARENDRA KANE

Judgement Text

1 M.A. NO.20/NAG/2013 IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. M. A. NO. 20/NAG/2013 (ARISING OUT OF ITA NO. 401/NAG/2012) ASSESSMENT YEAR : 2007 - 08. MURLIDHAR AGRAWAL, THE INCOME - TAX OFFICER, 222, EAST WARDHAMAN NAGAR, VS. WARD - 4(1), MITTAL VILA, NAGPUR. NAGPUR. (APPLICANT) RESPONDENT. APPLICANT BY : WRITTEN SUBMISSIONS. RESPONDENT BY : SHRI NARENDRA KANE.. DATE OF HEARING : 04 - 08 - 2015 DATE OF PRONOUNCEMENT : 11 TH SEPT. 2015. O R D E R PER SHRI SHAMIM YAHYA, A.M . THIS MISCELLANEOUS APPLICATION BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THIS TRIBUNAL IN ITA NO. 401/NAG/2012 VIDE ORDER DATED 03 - 04 - 2013. IN THIS MISCELLANEOUS APPLICATION THE ASSESSEE HAS SUBMITTED AS UNDER : THE ABOVE NAMED APPLICANT/ASSESSEE RESPECTFULLY BEGS TO SUBMIT AS UNDER : 1) AS PER PENALTY ORDER THE A.O. HAS LEVIED PENALTY UNDER SECTION 271(1)(C) OF I.T. ACT 1961 @ 12% AT ` 50,535/ - . 2 M.A. NO.20/NAG/2013 2) THE HONBLE ON PAGE 2, AT PARA 2, LINE 13 OF THE ORDER HAS OBSERVED THAT THE A.O. HAS LEVIED PENALTY @ 100% OF THE TAX SOUGHT TO BE EVADED I.E. ` 42,112/ - . 3) THE HONBLE TRIBUNAL VIDE ORDER DATED 03 - 04 - 2013 HAS CONFIRMED THE PENALTY. 4) THE ASSE SSEE/APPLICANT IS CONFUSED AS TO WHETHER THE HONBLE TRIBUNAL HAS CONFIRMED THE PENALTY AT 12% OR 100% OF THE TAX SOUGHT TO BE EVADED. IN CASE THE HONBLE TRIBUNAL CONFIRMED THE PENALTY AT 12%, THEN THE ASSESSEE GROUND NO. (VI) RAISED IN MEMORANDUM OF APPE AL REMAINS TO BE ADJUDICATED. 5) THE ASSESSEE HUMBLY PRAYS THAT THE MISTAKE POINTED OUT IN THE MISC APPLICATION BY THE ASSESSEE ARE APPARENT FROM THE FACE OF RECORD AND BE RECTIFIED BY PASSING AN APPROPRIATE ORDER UNDER SECTION 254(2) OF I.T. ACT 1961 AND JUS TICE BE RENDERED TO ASSESSEE. 6) THE ASSESSEE CNCLOSES HEREWITH COPY OF THE ORDER OF THE HONBLE TRIBUNAL FOR READY REFERENCE. 2. WE HAVE CAREFULLY HEARD THE LEARNED D.R. AND PERUSED THE RECORDS. WE FIND THAT UNDOUBTEDLY IN PARAGRAPH NO. 2 OF THE ORDER, THE TRIBUNAL HAS NOTED AO INITIATED PENALTY PROCEEDING UNDER SECTION 271(1)(C) OF THE ACT AND LEVIED THE PENALTY VIDE ORDER DATED 30 TH JUNE 2010 AND LEVIED PENALTY @ 100% OF THE TAX SOUGHT TO BE CONCEALED I.E. 42,112/ - ON THE CONCEALED INCOME OF ` 1,40,374/ - . IN THE END THE ITAT HAS HELD THAT THE ORDER OF THE CIT(APPEALS) DOES NOT CALL FOR ANY INTERFERENCE. HOWEVER, AS PER THE FACTS OF THE CASE IT IS CLEAR THAT THE AO HAS IMPOSED PENALTY AT THE RATE OF 120% WHICH AMOUNTED TO ` 50,535/ - . LEARNED CI T(APPEALS) HAS ALSO CONFIRMED THE SAID ORDER OF THE AO. IN OTHER WORDS, LEARNED 3 M.A. NO.20/NAG/2013 CIT(APPEALS) HAS CONFIRMED THE LEVY OF PENALTY OF ` 50,535/ - ; W HILE THE TRIBUNAL HAD NOTED THAT THE PENALTY LEVIED WAS ` 42,112/ - AND THE TRIBUNAL HAD CONFIRMED THE SAME. THUS IT IS CLEAR THAT ASSESSEES GROUND NO. 6 BY WHICH IT WAS PRAYED THAT WITHOUT PREJUDICE TO THE ABOVE THE APPELLANT HUMBLY PRAYS THAT THE PENALTY LEVIED OF ` 50,535/ - IS EXCESSIVE AND THE SAME MAY BE REDUCED TO MINIMUM LEVIBLE UNDER THE ACT. W AS NOT CONSI DERED BY THE TRIBUNAL. ACCORDINGLY IN THE INTEREST OF JUSTICE, WE RECALL THE AFORESAID ORDER OF THE TRIBUNAL ONLY FOR THE LIMITED PURPOSE OF CONSIDERING THE SAID GROUND NO. 6 RAISED BY THE ASSESSEE WHICH REMAINED UN - ADJUDICATED BY THE TRIBUNAL. 3. IN THE RESULT, THIS MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 11 TH DAY OF SEPT. 2015. SD/ SD/ (MUKUL K. SHRAWAT) ( SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER. NAGPUR, DATED: 11 TH SEPT., 2015. COPY OF ORDER FORWARDED TO : 1. THE ASSESSEE. 2. REVENUE. 3. THE CIT(A) 4. THE CIT, NAGPUR. 5. THE D.R., ITAT, NAGPUR. 6. GUARD FILE. 4 M.A. NO.20/NAG/2013 TRUE COPY. BY ORDER WAKODE ASSISTANT REGISTRAR, ITAT, NAGPUR