Pioneer Barrels Mfg.Co.Pvt. Ltd., Baroda V. The ACIT.,Circle-4(1), Baroda

MA 234/AHD/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7103 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-11-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 1995-1996
• Appeal Filed On: 27-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: J P SHAH
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, AHMEDABAD BEFORE SHRI D. K. TYAGI, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER M.A. NO.234 / AHD/2010 IN I.T.A.NO. 302/AHD/2007 (ASSESSMENT YEAR 1995-96) PIONEER BARRELS MFG. CO. P. LTD., 67, RACE COURSE CIRCLE, BARODA VS. ACIT, CIRCLE 4(1), BARODA PAN/GIR NO. : 31-039-CZ-6380 (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI J P SHAH, AR RESPONDENT BY: SHRI VINOD TANWANI, SR. DR DATE OF HEARING: 18.11.2011 DATE OF PRONOUNCEMENT: 25.11.2011 O R D E R PER SHRI A. K. GARODIA, AM:- THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASS ESSEE POINTING OUT CERTAIN MISTAKE IN THE TRIBUNAL ORDER. IT IS SUBMIT TED IN THE MISCELLANEOUS APPLICATION THAT THE APPEAL OF THE ASSESSEE WAS DIS MISSED BY THE TRIBUNAL ON THIS BASIS THAT THE LD. A.R. OF THE ASSESSEE HAS FAIRLY CONCEDED THAT PENALTY U/S 271(1)(C) WAS LEVIABLE ON THE ASSESSEE AS THE ASSESSEE HAD NOT FILED ITS RETURN OF INCOME BUT THIS WAS FACTUALLY I NCORRECT AND ON THE CONTRARY, WHAT WAS STATED BEFORE THE TRIBUNAL WAS T HAT EVEN IN THE WORST SCENARIO OF THE ASSESSEE, TOTALLY LOSING IN ASSESSM ENT BEFORE THE TRIBUNAL, NO PENALTY WILL BE LEVIABLE BECAUSE EXPLANATION (3) DOES NOT APPLY TO OLD M.A.NO.234 /AHD/2010 2 ASSESSEES AND SINCE THE ASSESSEE IS AN OLD ASSESSEE , NO PENALTY IS IMPOSABLE IN THE PRESENT CASE U/S 271(1)(C) OF THE ACT. 2. IN THE COURSE OF HEARING BEFORE US, THE SAME CON TENTION WAS REITERATED AND A COPY OF THE ASSESSMENT ORDER FOR T HE ASSESSMENT YEAR 1993-94 WAS FILED IN SUPPORT OF THIS CONTENTION THA T THE ASSESSEE IS AN OLD ASSESSEE. IT WAS POINTED OUT THAT THE AS PER THE A SSESSMENT ORDER PASSED BY THE A.O. U/S 143(3) FOR THE ASSESSMENT YEAR 1993 -94, RETURN OF INCOME WAS FILED BY THE ASSESSEE ON 31.12.1993. 3. AS AGAINST THIS, IT WAS SUBMITTED BY THE LD. D.R . THAT THERE IS NO MISTAKE IN THE TRIBUNAL ORDER AND HENCE, THIS MISCE LLANEOUS APPLICATION OF THE ASSESSEE SHOULD BE REJECTED. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW. WE FIND THAT THE APPEAL OF THE ASSESSEE WAS DISMISSED ON TH E SIMPLE BASIS THAT IT WAS CONCEDED BY THE LD. A.R. THAT THE ASSESSEE IS L IABLE FOR PENALTY. BUT AS PER THE CONCESSION OF THE ASSESSEE IN THE MISCEL LANEOUS APPLICATION, NO SUCH CONCESSION WAS MADE BY THE LD. A.R. AND TO THE CONTRARY, IT WAS SUBMITTED BY THE LD. A.R. THAT AS PER THE APPLICABL E PROVISIONS OF EXPLANATION (3) TO SECTION 271(1)(C), PENALTY IS NO T IMPOSABLE IN THE PRESENT CASE. WE FIND THAT THE APPLICABILITY OF TH IS EXPLANATION HAS NOT BEEN CONSIDERED BY THE TRIBUNAL AT ALL AND UNDER TH ESE FACTS, WE ARE SATISFIED THAT IT IS A MISTAKE IN THE TRIBUNAL ORDE R OF NOT CONSIDERING THE APPLICABILITY OF EXPLANATION (3) TO SECTION 271(1)( C) AND HENCE, WE FEEL IT PROPER THAT THIS TRIBUNAL ORDER SHOULD BE RECALLED FOR A FRESH DECISION AFTER HEARING BOTH THE SIDES ON THIS ASPECT. HENCE, WE R ECALL THE IMPUGNED TRIBUNAL ORDER DATED 26.02.2010 AND DIRECT THE REGI STRY TO FIX THE APPEAL M.A.NO.234 /AHD/2010 3 FOR HEARING IN DUE COURSE. NOTICE OF HEARING SHOUL D BE ISSUED TO BOTH THE SIDES. 5. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE STANDS ALLOWED IN THE TERMS INDICATED ABOVE. 6. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (D. K. TYAGI) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 23/11 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 23/11.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 24/11 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 25/11 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.25/11 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 25.11.2011 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. ..