Income-tax Officer, Ward - 1, Ahmednagar V. Agricultural Produce Market Committee, Ahmednagar

MA 23/PUN/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 5224 (ITAT-PUNE)
• Duration Of Justice: 7 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-10-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 28-09-2018
• Assessment Year: 2008-2009
• Appeal Filed On: 23-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH GAWLI

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE , . , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI D. KARUNAKAR A RAO, AM . / MA NO.23/PUN/2018 (ARISING OUT OF ITA NO.1040/PUN/2015) / ASSESSMENT YEAR : 2008-09 ITO, WARD - 1, AHMEDNAGAR . / APPLICANT V/S AGRICULTURAL PRODUCE MARKET COMMITTEE, KISAN KRANTI BUILDING, MARKET YARD, STATION ROAD, AHMEDNAGAR PAN : AAALA0304R . / RESPONDENT / APPLICANT BY : SHRI RAJESH GAWLI / RESPONDENT BY : S SHRI KISHOR PHADKE / ORDER PER KARUNAKARA RAO, AM : THE CAPTIONED MISCELLANEOUS APPLICATION FILED BY TH E REVENUE ARISES FROM THE ORDER OF TRIBUNAL VIDE ITA NO.1040/PUN/2015 DATED 0 9-08-2017 INVOLVING THE A.Y. 2008-09. 2. BRIEF FACTS OF THE M.A. INCLUDE THAT ORIGINALLY THE ASSESSEE FILED AN APPEAL AGAINST THE ORDER LEVYING PENALTY U/S.271(1)(C) OF THE ACT. IN THE ORDER OF TRIBUNAL (SUPRA), THE SAID APPEAL OF THE ASSESSEE WAS PARTLY ALLOWED DISMISSING THE GROUNDS ON MERITS AS ACADEMIC AND ALLOWING THE APPEAL ON TE CHNICAL GROUND, I.E. ASSESSEE RAISED THE ISSUE OF RECORDING OF SATISFACTION AT TH E TIME OF INITIATION QUA THE REFERENCE TO THE SPECIFIC LIMB OF CLAUSE (C) OF SECTION 271(1 ) OF THE ACT. 3. AGGRIEVED WITH THE SAID ORDER OF THE TRIBUNAL AL LOWING THE APPEAL ON TECHNICAL GROUND, THE REVENUE FILED THE PRESENT M.A. AND MENT IONED THAT THE TRIBUNAL FAILED TO CONSIDER REASONS GIVEN IN PARA 8, 8.1, 8.2 OF ASSESSMENT OR DER IN RESPECT OF / DATE OF HEARING :28.09.2018 / DATE OF PRONOUNCEMENT: 17.10.2018 2 DISALLOWANCE MADE U/S.43B OF THE ACT, WHICH WAS CON FIRMED BY THE LD.CIT(A). BUT THE LD. ITAT MISCONSTRUED IT, HENCE THE IMPUGNED OR DER IS LIABLE TO BE QUASHED AND SET ASIDE . 4. BEFORE US, LD. DR FOR THE REVENUE MENTIONED IN W RITING AS ALREADY EXTRACTED ABOVE, AND RELIED HEAVILY ON THE CONTENTS OF PARA N O.3 (V). HE ALSO SUBMITTED THAT THE TRIBUNAL GRANTED RELIEF TO THE ASSESSEE AS PER THE DISCUSSION GIVEN IN PARA NOS. 3 TO 7 OF THE ORDER. HOWEVER, THERE IS NONE TO REPRE SENT THE ASSESSEE BEFORE US. 5. ON HEARING THE LD. DR FOR THE REVENUE, WE FIND T HE M.A. FILED BY THE REVENUE IS REQUIRED TO BE DISMISSED FOR THE REASON THAT IT DOES NOT HAVE SUSTAINABLE ARGUMENT FOR REVERSING/RECTIFYING THE ORDER OF THE TRIBUNAL. THE TRIBUNAL HAS ALREADY DECIDED THE ISSUE AFTER EXTRACTING THE RELEVANT CONTENTS IN PARA NOS. 3 TO 7 OF THE ORDER OF TRIBUNAL. IN THE ABOVE SAID PARAS, THE TRIBUNAL, H AVING CONSIDERED PARA NO.5.4 OF THE ASSESSMENT ORDER AS WELL AS PARA NO.6 OF THE PE NALTY ORDER, CAME TO CONCLUSION THAT IT IS A CASE WHERE THE AO, AT THE TIME OF INIT IATION AS WELL AS LEVY OF PENALTY PROCEEDINGS US.271(1)(C) OF THE ACT DID NOT REFER T O THE PARTICULAR LIMB OF CLAUSE (C) OF SECTION 271(1) OF THE ACT. WHILE GIVING RELIEF TO THE ASSESSEE, WE RELIED ON THE JUDGMENT OF HONBLE BOMBAY HIGH COURT IN THE CASE O F CIT VS. SAMSON PERINCHERY (ITA NO.1154/2014 AND OTHERS, DATED 05-01-2017 AS W ELL AS THE JUDGMENT OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. MANJUNA THA COTTON AND GINNING FACTORY (359 ITR 565). THEREFORE, WE ARE OF THE OPINION TH AT THE M.A. FILED BY THE REVENUE IS DISMISSED. 6. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON THIS 17 TH DAY OF OCTOBER, 2018. SD/- SD/- (SUSHMA CHOWLA) (D. KARUNAKARA RAO) /JUDICIAL MEMBER / ACCOUNTANT MEMBER PUNE; DATED : 17 TH OCTOBER, 2018 3 / COPY OF THE ORDER FORWARDED TO : / BY ORDER , // TRUE COPY // //TRUE COPY// SENIOR PRIVATE SECRETARY , / ITAT, PUNE 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5. CIT(A)-2, PUNE CIT-1, PUNE % , , BENCH PUNE; 6. / GUARD FILE. // TRUE COPY //