R. Palanisamy, Tiruppur V. ITO, Tiruppur

MA 299/CHNY/2016

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 5487 (ITAT-CHENNAI)
• Duration Of Justice: 9 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 21-04-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 01-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N MADHAVAN
• Assessee Lawyers: T BANUSEKAR
• Keywords: Wrong claim
• Section: 80C

Judgement Text

, , IN THE INCOME - TAX APPELLATE TRIBUNAL D BENCH, CHENNAI , . , BEFORE SHRI CHANDRA POOJARI , ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY , JUDICIAL MEMBER M.P. NO.299/MDS/2016 [IN I.T.A.NO. 1211 /MDS/2015 ] / ASSESSMENT YEAR :20 1 0 - 1 1 SHRI R. PALANISAMY, NO. 45, PUSHPA NAGAR, KANGAYAM ROAD, TIRUPUR 641 604 . [PAN: A KQPP8270M ] VS. THE INCOME TAX OFFICER , WARD I(2) , TIRUPUR . ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI T. BANUSEKAR, C.A. / RESPONDENT BY : SHRI N. MADHAVAN , ADDL. CIT / DATE OF HEARING : 1 8 . 0 8 .201 7 / DATE OF P RONOUNCEMENT : 24 . 0 8 .201 7 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : BY MEANS OF PRESENT MISCELLANEOUS PETITION, THE ASSESSEE SEEKS TO RECALL THE ORDER OF THE TRIBUNAL IN I.T.A. NO. 1211/MDS/201 5 DATED 30.06.2016 . BY REFERRING TO THE PETITION, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT WHILE DECIDING THE APPEAL FILED BY THE ASSESSEE AGAINST PENALTY ORDER UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 [ ACT IN SHORT], THE TRIBUNAL HAS NOT ADJUDICATED THE GROUNDS RAISE D BY THE ASSESSEE IN GROUND NOS. 2, 3A, 3B AND 4B AND THUS, HE PRAYED THAT THE ORDER OF THE M.P . NO . 2 99 /M/ 16 2 TRIBUNAL MAY BE RECALLED AND ADJUDICATED THE ISSUES BY GIVING AN OPPORTUNITY OF HEARING TO THE ASSESSEE. 2. ON THE OTHER HAND, THE LD. DR DID NOT SERIOUSLY OBJEC T TO THE SUBMISSIONS OF THE LD. COUNSEL. 3. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS AVAILABLE ON RECORD AND ALSO GONE THROUGH THE ORDER OF THE TRIBUNAL. THROUGH THE MISCELLANEOUS PETITION, THE ASSESSEE SUBMITS THAT THE FOLLOWING GROUNDS [GROUND NOS. 2, 3A, 3B AND 4B] RAISED IN THE APPEAL OF THE ASSESSEE HAVE NOT BEEN ADJUDICATED BY THE TRIBUNAL WHILE PASSING O RDER IN I.T.A. NO. 1211/MDS/2015 DATED 30.06.2016: 2. THE HONOURABLE COMMISSIONER OF INCOME TAX (APPEALS) ERRONEOUSLY CONFIRMED THE ACTIO N OF THE ASSESSING OFFICER IN LEVYING PENALTY UNDER SECTION 271(1)(C) ON THE ERRONEOUS ASSUMPTION THAT THE PENALTY WAS LEVIED BECAUSE OF WRONG CLAIM OF CAPITAL EXPENSE WHICH IN FACT IS INCORRECT BECAUSE THE ASSESSING OFFICER DID NOT LEVY PENALTY ON THAT GR OUND AT ALL. 3. A. THE HONOURABLE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE APPRECIATED THAT THERE IS NO CONCEALMENT OF PARTICULARS OF INCOME IN THE PRESENT CASE AS THE ASSESSEE OFFERED THE ENTIRE INFORMATION OF HIS INCOME AND HIS EXPLANATION W AS BONAFIDE. B. THE HONOURABLE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE APPRECIATED THAT THE ACTION OF THE ASSESSING OFFICER IN LEVYING PENALTY UNDER SECTION 271(1)(C) ON THE GROUND OF CONCEALMENT OF INCOME IS BAD IN LAW WHEN THERE IS FACTUALLY NO CASE OF CONCEALMENT OF PARTICULARS OF INCOME. M.P . NO . 2 99 /M/ 16 3 4. B. THE HONOURABLE COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO CONSIDER THE DEDUCTION PERMISSIBLE U/S. 80C WHILE COMPUTING THE TAX ON INCOME ASSESSED. 4. WE FIND THAT THE TRIBUNAL HAS NOT ADJUDICATED THE ABOVE GROUNDS RAISED BY THE ASSESSEE IN HIS APPEAL. ACCORDINGLY, WE CALL THE ORDER OF THE TRIBUNAL IN I.T.A. NO. 1211/MDS/2015 DATED 30.06.2016 FOR LIMITED PURPOSE TO ADJUDICATE THE GROUNDS AS RAISED BY THE ASSESSEE IN HIS ORIGINAL APPEAL A ND REPRODUCED HEREINABOVE AND DIRECT THE REGISTRY TO POST THE APPEAL FOR HEARING ON REGULAR COURSE. 5 . IN THE RESULT, THE MP FILED BY THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED ON THE 24 TH AUGUST, 2017 AT CHENNAI. SD/ - SD/ - ( CHANDRA POOJARI ) ACCOUNTAN T MEMBER ( DUVVURU RL REDDY ) JUDICIAL MEMBER CHENNAI, DATED, THE 24. 0 8 .201 7 VM/ - / COPY TO: 1. / APPELLANT , 2. / RESPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.