Bhavesh K. Kothari, RAJKOT-GUJARAT V. The Addl. Commmr. Income Tax, RAJKOT-GUJARAT

MA 4/RJT/2020

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 1468 (ITAT-RAJKOT)
• Duration Of Justice: 2 year(s) 8 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-10-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 29-09-2022
• Assessment Year: 2005-2006
• Appeal Filed On: 26-01-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 271D; 271E; 274

Judgement Text

MA No. 04/RJT/2020 A.Y. 2005-06 1 IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT (Conducted through E-Court at Ahmedabad) BEFORE SMT. ANNAPURNA GUPTA, ACCOUNTANT MEMBER AND Ms. SUCHITRA KAMBLE, JUDICIAL MEMBER M.A. No.04/RJT/2020 (In ITA No. 558/RJT/2015) Assessment Year: 2005-06 Bhavesh K. Kothari vs. The ACIT, B/2. Shri Sadguru Apt. Range – 4, Jagnath Plot, Rajkot. Rajkot PAN: ACTPK7449Q (Applicant/Appellant) (Respondent) Applicant by : None (Written Submissions) Respondent by : Shri B. D. Gupta, Ld. Sr. DR Date of hearing : 30.09.2022 Date of pronouncement : 07.10.2022 O R D E R PER SUCHITRA KAMBLE, JUDICIAL MEMBER : This Miscellaneous Application is filed by the Assessee in respect of order dated 29.07.2019 passed by the Tribunal. 2. At the time of hearing none appeared on behalf of the assessee despite giving notice. The notice was duly served to the assesse and there is written submissions filed by the appellant i.e. assessee, therefore, we are proceeding in the present Misc. Application. The written submissions are as follows: “1. As mentioned in M.A. at Para 2 in see thereof that while passing the order dismissing the appeal on 29-7-2019 the grounds no. 6 & 7 has been remained to be considered both these ground relates to legal position. It is apparent from the order passed on 29-7-2019 that the appeal is dismissed on Mauritius ground only. 2. It is settled law that the grounds taken needs consideration and moreover the legal ground needs consideration before considering the merits of the case. MA No. 04/RJT/2020 A.Y. 2005-06 2 3. As mention at Para 5 & 6 OF THE M.A. it is mention that on identical issue an on the same facts for the same assessment year penalty levied U/S. 271D has been cancel by the Hon. ITAT E- Bench Rajkot vide order dated 12-12-2019 in ITA No. 559/RJT/2015. Copy of order is enclosed herewith. 4. Since Penalty initiated U/s. 271D and 271E for the same A.Y. 2005-06, in respect of penalty levied U/s. 271D has been cancel on the ground that Penalty order passed is beyond limitation which describes under the law. It is humbly submitted that the initiation and completion of both penalty levied U/S. 271D and 271E are the same for the same Assessment year 2005-06. There would have no been different result for the matter Under M.A. if the legal ground could have been considered. 5. Since the penalty proceedings initiated U/S. 271D and 271E on the same dates as also completed on the same date for the one and the same Assessment year, i.e. A.Y. 2005-06, the penalty levied U/S. 271D stands cancelled accepting legal ground, then the same reasons could have been there for penalty levied us. 271E which is confirm on merits without considering legal ground. 6. Since the settled law permits to consider legal ground first and if it remain to be consider, to rectification so that justification can be done for identical matter. 7. It is therefore prayed that the order dated 29-7-2019 dismissing the appeal on merit without considering legal ground, may kindly be recall to consider the ground taken and remain to be consider. It is further humbly prayed that on recalling the matter to consider the legal ground the Hon. Bench may kindly allow the appeal cancelling the penalty being covered matter by the same bench as per order dated 12.12.2019 (Most Hon. Waseem Ahemad Sir AM And Ms. Mathumati Roy JM) (copy Enclosed). 8. The appeal may therefore kindly be allowed as prayed for.” 3. The Ld. DR relied upon the order of the Tribunal dated 12.12.2019 and submitted that the assessee is seeking review of order and the same is not allowable as per the provisions of Section 254 of the Income Tax Act, 1961. The Ld. DR further submitted that the penalty notice was issued on 25/10/2012 u/s. 274 rws 271E of the IT Act, with the direction to show cause as to why a penalty as provided in section MA No. 04/RJT/2020 A.Y. 2005-06 3 271E of the Act should not be levied. Hence, the penalty order was rightly passed within the time frame given under Section 275 of the Income Tax Act, 1961. 4. We have heard Ld. DR and perused all the relevant material available on record. From the perusal of the written submissions of the assessee before us as well as the order dated 29.07.2019 passed by the Tribunal. At the time of hearing of the appeal on 17.07.2019 neither the assessee or the representative of the assessee appeared before the Tribunal. Since, the order was passed ex-parte, it is seen that Ground No. 7 related to time barring penalty order was not adjudicated as the same was not pointed out at the time of hearing. After calling out the matter at the time of hearing of the present Misc. Application none appeared before us. There was no explanation given by the assessee in the Misc. Application relates to why the assessee has not appeared before the Tribunal on 17.07.2019. Despite giving notice of hearing the assessee is not coming forward for hearing before us. The query raised by us at this juncture was not explained. Besides this, the Ld. DR pointed out that the penalty notice was issued on 25/10/2012 u/s. 274 rws 271E of the IT Act and penalty order was passed on 25.04.2013 which is within the prescribed period of six months as per Section 275 of the Income Tax Act, 1961. Prima facie this appears to be correct, hence, there is no merit in the present Misc. Application for recalling/rectifying the order dated 29.07.2019 passed in ITA No. 558/RJT/2015. Hence, the present Miscellaneous Application filed by the assessee is dismissed. 5. In result, Miscellaneous Application filed by the assessee is dismissed. Order pronounced in the open Court on this 7 th day of October, 2022. Sd/- Sd/- (ANNAPURNA GUPTA) (SUCHITRA KAMBLE) Accountant Member Judicial Member Ahmedabad, the 7 th day of October, 2022 PBN/* Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) MA No. 04/RJT/2020 A.Y. 2005-06 4 (5) Departmental Representative (6) Guard File By order UE COPY Assistant Registrar Income Tax Appellate Tribunal Rajkot Bench, Rajkot