ASST CIT III, V. AFZAL S. . PATEL,

MA 318/MUM/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9485 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-11-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 23-05-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: DEEPAK TRALSHAWALA MA NO MUM
• Keywords: Opportunity of being heard
• Section: 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D, MUMBAI BEFORE SHRI I.P.BANSAL, JUDICIAL MEMBER & SHRI B.RAMAKOTAIAH, ACCOUNTANT MEMBER. MA NO.316/MUM/2012 (ARISING OUT OF ITA NO.6735/MUM/2008,A.Y. 2005-06) MA NO.317/MUM2012 (ARISING OUT OF ITA NO.6736/MUM/2008,A.Y. 2006-07) THE ACIT, CEN.III, AAYKAR BHAVAN, MK ROAD, MUMBAI 20. (APPLICANT) VS. SHRI RIZWAN S. PATEL, 6 TH FLOOR, 53, HAJI MAHAL, MOHAMMED ALI ROAD, MUMBAI 03. PAN:AAAPP 9353P (RESPONDENT) MA NO.318/MUM/2012 (ARISING OUT OF ITA NO.6737/MUM/2008,A.Y. 2005-06) MA NO.319/MUM/2012 (ARISING OUT OF ITA NO.6738/MUM/2008,A.Y.2006-07) THE ACIT, CEN.III, AAYKAR BHAVAN, MK ROAD, MUMBAI 20. (APPLICANT) VS. SHRI AFSAL S. PATEL, 6 TH FLOOR, 53, HAJI MAHAL, MOHAMMED ALI ROAD, MUMBAI 03. PAN:AAAPP 9352N (RESPONDENT) MA NO.320/MUM/2012 (ARISING OUT OF ITA NO.6741/MUM2008,A.Y.2005-06) THE ACIT, CEN.III, AAYKAR BHAVAN, MK ROAD, MUMBAI 20. (APPLICANT) VS. SHRI KASAM S. PATEL, 6 TH FLOOR, 53, HAJI MAHAL, MOHAMMED ALI ROAD, MUMBAI 03. PAN:AAAPP 9351R (RESPONDENT) APPLICANT BY : NONE RESPONDENT BY : SHRI DEEPAK TRALSHAWALA MA NO.316,317,318,319 &320/MUM/2012 2 ORDER PER I.P.BANSAL, J.M ALL THESE MISCELLANEOUS APPLICATIONS ARE FILED BY THE REVENUE CONTENDING THAT THERE IS A MISTAKE IN THE ORDER OF THE TRIBUNAL DATED 21/01/2011, PASSED IN ABOVE MENTIONED INCOME TAX AP PEALS, VIDE WHICH CONCEALMENT PENALTY APPEALS FILED BY THE ASSESSEE W ERE SET ASIDE ON THE GROUND THAT IN QUANTUM APPEAL TRIBUNAL HAD SET ASI DE THE ORDER OF LD. CIT(A) WHICH HAD CONFIRMED THE ACTION OF A.O. AS T HE QUANTUM APPEAL WAS SET ASIDE WITH A DIRECTION TO DECIDE THE ISSUE AFR ESH AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, THE TRI BUNAL IN PENALTY APPEALS OBSERVED THAT PENALTY NO LONGER SURVIVES, THEREFORE , PENALTY WAS CANCELLED. HOWEVER, IT WAS MADE CLEAR THAT AO WILL BE AT LIBER TY TO INITIATE PENALTY DURING THE COURSE OF SET ASIDE PROCEEDINGS. IT IS THE SUBMISSION OF THE REVENUE THAT SINCE IN QUANTUM PROCEEDINGS THE MATT ER WAS NOT RESTORED TO AO BUT TO LD. CIT(A), THEREFORE, THE SAID DIRECTION OF THE TRIBUNAL IN PENALTY APPEALS SHOULD GIVE LIBERTY TO THE LD. CIT(A) AND NOT TO AO AS THE AO WILL HAVE NO JURISDICTION TO INITIATE PENALTY PROCEEDING S. 2. NONE WAS PRESENT ON THE BEHALF OF THE DEPARTMEN T, HOWEVER, LD. A.R WAS PRESENT. LD. A.R AFTER SEEING THE FILE, SUBMI TTED THAT THE CONTENTION OF THE REVENUE WAS CORRECT AND HE SUBMITTED THAT IN Q UANTUM APPEAL THE TRIBUNAL VIDE ITS ORDER DATED 30/9/2010 HAD RESTORE D THE MATTER BACK TO THE FILE OF LD. CIT(A), THEREFORE, THE LIBERTY, IF ANY , WAS REQUIRED TO BE GIVEN TO LD. CIT(A) AND NOT TO THE AO. 3. WE HAVE HEARD LD. AR AND WE HAVE CAREFULLY GONE THROUGH THE QUANTUM ORDER DATED 30/9/2010. VIDE PARA -11 THE M ATTER WAS RESTORED TO THE FILE OF LD. CIT(A), WHICH READ AS UNDER: MA NO.316,317,318,319 &320/MUM/2012 3 11. WE HAVE HEARD BOTH SIDES, PERUSED THE RECORDS AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE MAIN ISSUE WI TH REGARD TO SEC. 2(22)(E) HAS BEEN REMITTED TO THE FILE OF THE CIT(APPEALS) FOR F RESH CONSIDERATION. WE THINK IT PROPER AND JUST TO REMIT THIS ISSUE ALSO THE FILE O F THE CIT(APPEALS). ACCORDINGLY, WE SET ASIDE THE ORDER OF THE CIT(APPE ALS) AND REMIT THE MATTER TO HIS FILE WITH A DIRECTION TO DECIDE THE ISSUE AFRES H IN ACCORDANCE WITH LAW AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3.1 WHILE DECIDING THE IMPUGNED APPEALS THE OBSERVA TIONS OF TRIBUNAL ARE AS UNDER: 3. WHEN THESE APPEALS WERE TAKEN UP FOR HEARING, T HE LD. COUNSEL FOR THE ASSESSEE FIELD BEFORE US A COPY OF THE ORDER OF THE TRIBUNAL IN ALL THE ASSESSMENT YEARS IN THE CASE OF THE THREE ASSESSEES REFERRED ABOVE, BEING THE ORDERS OF THE TRIBUNAL IN QUANTUM APPEAL. THE ADDI TION IN RESPECT OF WHICH THE ASSESSING OFFICER IMPOSED PENALTY WHICH WAS CONFIRM ED BY THE CIT(A) GIVING RISE TO THESE APPEALS BY THE ASSESSEES WERE SUBJECT MATTER OF THE AFORESAID APPEALS BEFORE THE TRIBUNAL. THE FOLLOWING WERE TH E ASSESSMENT YEARS: 1. ITA NO.2808&2809/M/08 FOR A.Y. 2005-06 AND 2006- 07, SHRI RIZWAN S. PATEL. 2.ITA NO.2810 & 2811/M/08 FOR A.Y 2005-06 & 2006-07 , SHRI AFSAL S.PATEL. 3. ITA NO.2812/M/2008 FOR A.Y 2005-06, SHRI KASAM S . PATEL. IN THE AFORESAID ORDER THE ADDITION IN RESPECT OF W HICH PENALTY WAS IMPOSED WAS CONSIDERED BY THE TRIBUNAL AND THE TRIBUNAL THO UGHT IT FIT TO SET ASIDE THE ORDER OF THE CIT(A) CONFIRMING THE ACTION OF THE AS SESSING OFFICER, WITH A DIRECTION TO DECIDE THE ISSUE AFRESH AFTER GIVING R EASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN VIEW OF THE AFORESAID OR DER OF THE TRIBUNAL, WE ARE OF THE VIEW THAT THE VERY BASIS ON WHICH THE PENALTY W AS IMPOSED NO LONGER SURVIVES. WE, THEREFORE, DIRECT THAT THE PENALTY I MPOSED BE CANCELLED IN THE CASE OF ALL THE ASSESSEE REFERRED TO ABOVE. WE HOW EVER, MAKE IT CLEAR THAT THE ASSESSING OFFICER WILL BE AT LIBERTY TO INITIATE PE NALTY PROCEEDINGS DURING THE COURSE OF SET ASIDE PROCEEDINGS. WITH THESE OBSERV ATION ALL THESE APPEALS ARE ALLOWED. 3.2 FROM THE ABOVE FACTS WE FIND THAT THE LIBERTY TO INITIATE PENALTY PROCEEDINGS WAS TO BE GIVEN TO LD. CIT(A) AND NOT T O AO AS THE MATTER OF QUANTUM WAS RESTORED TO THE FILE OF LD. CIT(A). AC CORDINGLY WE AMEND PARA - 3 OF THE ORDER OF TRIBUNAL DATED 21/1/2011 AS UNDER : MA NO.316,317,318,319 &320/MUM/2012 4 3. WHEN THESE APPEALS WERE TAKEN UP FOR HEARING, TH E LD. COUNSEL FOR THE ASSESSEE FIELD BEFORE US A COPY OF THE ORDER OF THE TRIBUNAL IN ALL THE ASSESSMENT YEARS IN THE CASE OF THE THREE ASSESSEES REFERRED ABOVE, BEING THE ORDERS OF THE T RIBUNAL IN QUANTUM APPEAL. THE ADDITION IN RESPECT OF WHICH T HE ASSESSING OFFICER IMPOSED PENALTY WHICH WAS CONFIRMED BY THE CIT(A) GIVING RISE TO THESE APPEALS BY THE ASSESSEES WERE SUBJECT MATTER OF THE AFORESAID APPEALS BEFORE THE TRIBUNAL. THE FOLLOWI NG WERE THE ASSESSMENT YEARS: 1. ITA NO.2808&2809/M/08 FOR A.Y. 2005-06 AND 2006- 07, SHRI RIZWAN S. PATEL. 2.ITA NO.2810 & 2811/M/08 FOR A.Y 2005-06 & 2006-07 , SHRI AFSAL S.PATEL. 3. ITA NO.2812/M/2008 FOR A.Y 2005-06, SHRI KASAM S . PATEL. IN THE AFORESAID ORDER THE ADDITION IN RESPECT OF W HICH PENALTY WAS IMPOSED WAS CONSIDERED BY THE TRIBUNAL AND THE TRIBUNAL THOUGHT IT FIT TO SET ASIDE THE ORDER OF THE CIT(A) CONFIRMING THE ACTION OF THE ASSESSING OFFICER, WITH A DIRECTION TO DECIDE THE ISSUE AFRESH AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN VIEW OF THE AFORESAID ORDER OF TH E TRIBUNAL, WE ARE OF THE VIEW THAT THE VERY BASIS ON WHICH THE PE NALTY WAS IMPOSED NO LONGER SURVIVES. WE, THEREFORE, DIRECT THAT THE PENALTY IMPOSED BE CANCELLED IN THE CASE OF ALL THE ASSESSEE REFERRED TO ABOVE. WE HOWEVER, MAKE IT CLEAR THAT THE LD. CIT(A) WILL BE AT LIBERTY TO INITIATE PENALTY PROCEEDINGS DURING THE COURSE OF SET ASIDE PROCEEDINGS. WITH THESE OBSERVATION A LL THESE APPEALS ARE ALLOWED. MA NO.316,317,318,319 &320/MUM/2012 5 4. IN THE RESULT, ALL THE MISCELLANEOUS APPLICATION S ARE ALLOWED IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON TH E 16 TH DAY OF NOV. 2012 SD/- SD/- (B.RAMAKOTAIAH) (I.P.BANSAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED. 16 TH NOV.2012 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3 . THE CIT CITY CONCERNED 4. THE CIT(A)- CONCERNED 5. THE D.RD BENCH. (TRUE COPY) BY ORDER ASST. REGISTRAR, I TAT, MUMBAI BENCHES MUMBAI. VM.