ACIT, Jaipur V. AIREN METALS PVT. LTD., Jaipur

MA 45/JPR/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6934 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-07-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 26-03-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: J C KULHARI
• Keywords: Opportunity of being heard; Principle of natural justice; Initiation of penalty proceedings; Reasonable cause

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YA DAV, AM VK;DJ VIHY LA-@ MA NO.45/JP/2018 (ARISING OUT OF ITA NO. 820/JP/201 6) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 M/S AIREN METALS PVT. LTD., G-750, ROAD NO. 9/F-2, VKI AREA, JAIPUR CUKE VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-04, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AABCA5583C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI MAHENDRA GARGIEYA (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI J.C.KULHARI (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 13/04/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 05/07/2018 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY TH E ASSESSEE AGAINST THE ORDER PASSED BY THE CO-ORDINATE BENCH I N ITA NO. 820/JP/2016 DATED 29.09.2017 FOR AY 2009-10. IN IT S APPLICATION, THE ASSESSEE HAS SUBMITTED THAT:- IN THE SAID ORDER, THERE ARE CERTAIN GLARING AND P ATENT MISTAKES APPARENT FROM THE FACE OF THE RECORD BEING SUBMITTE D HEREIN BELOW: M.A. NO. 45/JP/2018 M/S AIREN METALS PVT. LTD., JAIPUR VS. ACIT, JAIPUR 2 3.1 MISTAKE 1 ST : AT THE OUTSET IT IS SUBMITTED THAT DURING THE COU RSE OF HEARING, THE HONBLE ITAT WAS MAINLY INFLUENCED BY THE CONTENTION RAISED BY THE ASSESSE THAT IN ANY CASE, IT HAD DEPO SITED THE TDS IN A LATER YEAR I.E. IN AY 12-13 AS PERMITTED BY THE FIR ST PROVISO TO S.40(A)(IA) HENCE IT WAS NOT A CASE OF THE IMPUGNED PENALTY. ACCORDINGLY, THE THEN HON'BLE JUDICIAL MEMBER THERE FORE, FOR THE BENCH, TOLD THE AR OF THE ASSESSE TO GO BACK TO THE AO TO GET THE FACT OF THE DEPOSIT OF THE SUBJECTED AMOUNT OF TDS, VERIFIED. T HEREUPON, THE THEN HON'BLE A.M. ALSO POINTED OUT THE COPIES OF THE COM PUTATION OF TOTAL INCOME FOR AY 2012-13 PLACED AT ASSESSE'S PAPER BOO K PG NO. 1-3 SHOWING THE CLAIM OF THE DEDUCTION MADE ON ACCOUNT OF THE DEPOSIT OF THE TDS IN AY 2012-13. THE HON'BLE BENCH THEREAFTER , CONCLUDED THE MATTER AND DECLARED THE SAME AS HEARD WITHOUT WHISP ERING A SINGLE WORD OR WITHOUT EVEN ASKING THE PARTIES ON ANY OF T HE ISSUES, THEREAFTER. THE AR THUS, REMAINED UNDER THE IMPRESS ION THAT THE MATTER STOOD HEARD AND SINCE BEING REMANDED BACK TO THE AO FOR VERIFICATION HENCE IT WAS NOT REQUIRED TO EXPLAIN FURTHER ON THE VARIOUS ISSUES INVOLVED AND ON THE VARIOUS OTHER CONTENTIONS RAISE D. HOWEVER, WHEN THE ORDER WAS RECEIVED THE AR WAS SHOCKED TO FIND T HAT THE ALL THE ISSUES HAVE BEEN DEALT WITH AND ULTIMATELY DECIDED THE APPEAL AGAINST THE ASSESSEE BUT WITHOUT HEARING THE ASSESSEE AND W ITHOUT SEEKING CLARIFICATIONS WHICH, APPEARS TO BE REQUIRED. THIS HAS RESULTED IN A GREAT INJUSTICE WITH THE APPELLANT AND HAS PREJUDIC ED ITS VALUABLE RIGHTS OF BEING HEARD TO ITS SATISFACTION. THIS IS EVIDENT FROM THE FACT THAT SOME APPARENT MI STAKES HAVE CREPT IN THE ITAT ORDER AND WHERE, THE HON'BLE ITAT, AT OCCA SIONS, HAS MADE OBSERVATIONS OR STATED THE FACTS, WHICH ARE CONTRAR Y TO THE RECORDS. AT ONE OCCASION, A DOCUMENT WAS RELIED UPON AND EVEN A DVERSE INFERENCE M.A. NO. 45/JP/2018 M/S AIREN METALS PVT. LTD., JAIPUR VS. ACIT, JAIPUR 3 WAS DRAWN THEREFROM BUT ABSOLUTELY WITHOUT CONFRONT ING TO THE ASSESSEE-APPLICANT. SUCH ISSUES HAVE BEEN DISCUSSED IN THE UPCOMING MISTAKES POINTED OUT IN THIS MA. 3.2 MISTAKE 2 ND : IN THE WRITTEN SUBMISSIONS (AT PAGE 9 PARA 6.2.2 TO 6.2.6) FILED DURING THE COURSE OF HEARING, THE ASSE SSEE APPLICANT RELIED UPON SEVERAL DECISIONS ON THE ISSUES INVOLVED APART FROM CIT & ANR. V. MANJUNATHA COTTON AND GINNING FACTORY 359 ITR 565 ( KAR.) WHICH ALSO INCLUDED SEVERAL DECISIONS OF THE HON'BLE COORDINAT E BENCHES OF ITAT JAIPUR. THE HON'BLE ITAT HOWEVER HAS NOT AT ALL WHI SPERED WITH REGARD TO ANY OTHER DECISIONS. SOME OF THE DECISIONS WERE DIRECTLY APPLICABLE ON THE FACTS OF THE PRESENT CASE. THE LAW IS WELL SETT LED THAT NON CONSIDERATION OF A DECISION OF THE COORDINATE BENCH AND VARIOUS OTHER DECISIONS INCLUDING THOSE BINDING I.E. OF THE HON'B LE APEX COURT, IS A MISTAKE APPARENT. IT APPEARS THAT THESE DECISIONS T HOUGH CITED IN THE WRITTEN SUBMISSION BUT ESCAPED THE KIND ATTENTION O F THE HON'BLE ITAT RESULTING INTO A GREAT INJUSTICE TO THE APPELLANT. HAD THE ABOVE DECISIONS BEEN CONSIDERED, THE ORDER OF THE HON'BLE ITAT WOUL D HAVE BEEN COMPLETELY DIFFERENT. 3.3 MISTAKE 3 RD : THE CONTENTION OF THE ASSESSEE AS REGARDS THE SE RIOUS DEFICIENCY OCCURRED IN THE SHOW-CAUSE NOTICE ISSUED U/S 274 HAS BEEN DEALT WITH BY THE HON'BLE ITAT IN ITS ORDER AT PAG E 8 PARA 12. THE HON'BLE ITAT HEAVILY RELIED UPON THE COMMUNICAT ION DATED 18.06.2012 AS ANOTHER SHOW-CAUSE NOTICE BUT IT IS S UBMITTED THAT SUCH A NOTICE WAS NEVER SEEN BY THE HON'BLE ITAT NOR THE ASSESSEE FILED A COPY OF SUCH NOTICE IN THE PAPER BOOK. THERE WAS NO CONTENTION RAISED BY THE LD. DR EVEN W.R.T. SECOND NOTICE. IT WAS MER ELY TAKEN FROM THE FACTS AS STATED IN THE PENALTY AT ORDER PG. 1. EVEN THE ASSESSEE WAS M.A. NO. 45/JP/2018 M/S AIREN METALS PVT. LTD., JAIPUR VS. ACIT, JAIPUR 4 NEVER ASKED TO CLARIFY DURING THE COURSE OF HEARING BY THE HON'BLE ITAT AND THE APPEAL STOOD HEARD IN THE MANNER STATED ABO VE COMPLETELY VIOLATING THE PRINCIPLES OF NATURAL JUSTICE BY WHIC H NOT ONLY THE AO BUT EVEN THE HONBLE ITAT HAS DEPRIVED THE ASSESSEE OF ITS VALUABLE RIGHT OF BEING HEARD AND TO BE GIVEN A FULL OPPORTUNITY A S HELD IN THE CASE OF MANJUNATHA. THE SAID ANOTHER SHOW-CAUSE NOTICE WAS NOTHING BUT A MERE REMINDER LETTER NO. 142 DATED 18.06.2012 (COPY ENCLOSED) AND A BARE PERUSAL SHOWS THAT THE SAID LETTER NOWHERE STATES OR TALKS ABOUT BOTH CONCEALING --- AND FURNISHING INACCURATE PARTICULAR S--. THE LETTER MERELY REFERS TO THE PENALTY PROCEEDINGS EARLIER IN ITIATED AGAINST THE ASSESSEE. IT WAS A WRONG FACT STATED IN THE PENALTY ORDER AT PG. 1. IN FACT, IT IS ONLY THE FIRST NOTICE DATED 28.12.2011 WAS ISSUED ALONG WITH THE PASSING OF THE ASSESSMENT ORDER DATED 28.12.201 1, WHICH WAS RELEVANT AND CONTEMPLATED UNDER LAW FOR THE PURPOSE AND WAS REFERRED IN MANJUNATHA (SUPRA).THE HON'BLE ITAT, ON THE ONE HAND, WHILE PROCEEDING ALMOST EX-PARTE NEITHER LOOKED UPO N THE SAID LETTER DATED 18.06.2012 ON ITS OWN NOR THE PARTIES WERE EV ER DIRECTED TO PLACE A COPY THEREOF ON RECORD. IT IS HUMBLY SUBMITTED THAT THEREFORE, THE HONBLE ITAT INCORRECTLY STATED THAT THE ASSESSEE WAS ISSUED TWO SHOW CAUSE NOTICES. IT ALSO INCORRECTLY STATED THAT IN THE SECOND SHOW CAUSE NO TICE BOTH THE LIMBS WERE MENTIONED. HENCE, THE HON'BLE ITAT COMMITTED A GRAVE MISTAKE WHICH HAS SERIOUSLY PREJUDICED THE RIGHTS OF THE AS SESSEE. HAD THE CORRECT FACTS BEEN CONSIDERED, THE ORDER OF THE HON BLE ITAT WOULD HAVE BEEN COMPLETELY DIFFERENT. M.A. NO. 45/JP/2018 M/S AIREN METALS PVT. LTD., JAIPUR VS. ACIT, JAIPUR 5 3.4 MISTAKE 4 TH :- THE HONBLE ITAT AT PG 15 (TOP) PR. 22 HAS FURT HER OBSERVED THAT ..EVEN BEFORE US, NO PLEADINGS HAVE BEEN TAKEN TO SHOW THAT THERE EXISTED A REASONABLE CAUSE FOR NOT ATTENDING TO THE PENALTY PROCEEDINGS AND OFFERING ITS EXPLANATION BE FORE THE AO .. HOWEVER, SUCH A FACT FINDING IS TOTALLY CONTRARY TO THE RECORD IN AS MUCH AS THE ASSESSEE VIDE PG 3 PR 2.2 OF THE W/S, FILED DURING THE COURSE OF HEARING, HAS MADE SUBMISSION AS REGARDS THE EXISTEN CE OF REASONABLE CAUSE AND PERTINENTLY EVEN THE HONBLE ITAT HAS REF ERRED TO SUCH SUBMISSION AT PG. 6 PR. 8 OF ITS ORDER. HOWEVER THE RE APPEAR NO COMMENTS ON THE REASONABLE CAUSE SO PLEADED BY THE ASSESSEE, WHICH IS A GLARING MISTAKE AND HAS SERIOUSLY PREJUDICED THE RIGHTS OF THE ASSESSEE. HAD THE CORRECT FACTS BEEN CONSIDERED, TH E ORDER OF THE HONBLE ITAT WOULD HAVE BEEN COMPLETELY DIFFERENT. 4. THUS, THE COMMITMENT OF THESE PATENT MISTAKES HA VE RESULTED IN A GREAT MISCARRIAGE OF JUSTICE AND SERIOUSLY ADVERSEL Y AFFECTED AND PREJUDICED THE INTEREST OF THE ASSESSEE FOR NO FAUL T OF IT. 5. ALL THE ABOVE MISTAKES ARE APPARENT, GLARING AND PATENT AND HENCE, REQUIRE A SUITABLE RECTIFICATION U/S 254(2) OF THE ACT AND SINCE THESE MISTAKES GO TO THE ROOT OF THE MATTER HENCE, IT IS PRAYED THAT THE ENTIRE ORDER MAY KINDLY BE RECALLED AND THE APPEAL MAY KINDLY BE HEARD AFRESH AND OBLIGE. 2. DURING THE COURSE OF HEARING, THE LD AR REFERRE D TO VARIOUS MISTAKES AS REFERRED IN THE MISC. APPLICATION. HE FURTHER DRAWN OUR REFERENCE TO THE DECISION OF THE HONBLE RAJASTHAN HIGH COURT IN CASE OF SHEVETA CONSTRUCTION CO. PVT LTD VS ITO IN DB ITA NO. 534/2008 DATED 6.12.2016 WHEREIN IT WAS HELD AS UNDER: M.A. NO. 45/JP/2018 M/S AIREN METALS PVT. LTD., JAIPUR VS. ACIT, JAIPUR 6 9. TAKING INTO CONSIDERATION THE DECISION OF THE ANDHRA PRADESH HIGH COURT WHICH VIRTUALLY CONSIDERED THE SUBSEQUENT LAW AND THE LAW WHICH WAS PREVAILING ON THE DATE THE DECISION WAS RENDERE D ON 27.08.2012. IN VIEW OF THE OBSERVATIONS MADE IN THE SAID JUDGMENT, WE ARE OF THE OPINION THAT THE CONTENTION RAISED BY THE APPELLANT IS REQUIRED TO BE ACCEPTED AND IN THE FINDING OF ASSESSING OFFICER IN THE ASSESSMENT ORDER IT IS HELD THAT THE AO, HAS TO GIVE A NOTICE AS TO WHETHER HE PROPOSES TO LEVY PENALTY FOR CONCEALMENT OF INCOME OR FURNISHIN G INACCURATE PARTICULARS. HE CANNOT HAVE BOTH THE CONDITIONS AND IF IT IS SO HE HAS TO SAY SO IN THE NOTICE AND RECORD A FINDING IN THE PE NALTY ORDER. IT WAS SUBMITTED BY THE LD AR THAT IN THE PRESENT C ASE ALSO IN THE ASSESSMENT ORDER AND ALSO, IN THE SCN, THE AO DID N OT MAKE CLEAR WHICH OF THE TWO LIMBS, HE CHOOSE TO ASK THE ASSESSEE BUT IN THE IMPUGNED PENALTY ORDER HE IMPOSED THE PENALTY W.R.T ONE ASPE CT ONLY. THUS, ON THESE FACTS ALSO, THE IMPUGNED PENALTY WAS ILLEGAL AND UNJUSTIFIED IN VIEW OF THE ABOVE DECISION OF THE HONBLE HIGH COUR T WHICH DIRECTLY APPLIES ON THE PRESENT CASE. THIS BEING A DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT, NON-CONSIDERATION THEREO F, AMOUNTS TO A MISTAKE APPARENT FROM RECORD. 3. THE LD DR IS HEARD WHO HAS OPPOSED THE MISC. APP LICATION AND SUBMITTED THAT THE ORDER PASSED BY THE COORDINATE B ENCH IS WELL SPEAKING ORDER AND THERE IS NO MISTAKE APPARENT FRO M THE RECORD AS CLAIMED BY THE LD AR. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PURUSED THE ORDER PASSED BY THE COORDINATE BENCH AND OTHER MATERIAL A VAILABLE ON RECORD. FIRSTLY, IT IS INCORRECT ON PART OF THE LD AR TO PL EAD THAT PROPER M.A. NO. 45/JP/2018 M/S AIREN METALS PVT. LTD., JAIPUR VS. ACIT, JAIPUR 7 OPPORTUNITY TO BE HEARD WAS NOT GIVEN TO THE ASSESS EE. THE MATTER WAS PROPERLY HEARD, OPPORTUNITY WAS GRANTED TO THE LD A R TO PRESENT ITS CONTENTIONS AND THEREAFTER, EVEN THE WRITTEN SUBMIS SIONS WERE CONSIDERED AND THEREAFTER, THE IMPUNGED ORDER WAS P RONOUNCED. SECONDLY, DURING THE COURSE OF HEARING, THE BENCH I S AT LIBERTY TO ASK QUESTIONS AND SOLICIT RESPONSE FROM THE LD AR AND I N THE PROCESS, IF THE LD AR HAS GOT SOME UNILATERAL IMPRESSION ON THE OUT COME OF THE HEARING AND THAT TOO, WITHOUT THE BENCH EVEN WHISPERING A W ORD, SUCH IMPRESSION CANNOT BE A BASIS FOR HOLDING SOME MISTA KE ON PART OF THE BENCH WHEN THE MATTER IS BEING HEARD AND THE DECISI ON HAS NOT BEEN PRONOUNCED. TILL THE FINAL DECISION IN THE MATTER IS NOT FINALLY PRONOUNCED IN THE OPEN COURT, ANY IMPRESSIONS WHICH EITHER OF THE PARTIES MAY GET CANNOT BE A BASIS FOR MOVING AN APP LICATION UNDER SECTION 254(2) OF THE ACT. 5. REGARDING NON-CONSIDERATION OF VARIOUS CO-ORDINA TE BENCH DECISIONS SO RELIED UPON BY THE LD AR, IT IS NOT ES SENTIAL THAT THE BENCH IS REQUIRED TO GAVE ITS SPECIFIC FINDINGS ON EACH O F THE DECISIONS SO LONG AS THE SAID DECISIONS HAVE BEEN DULY CONSIDERED BEF ORE A FINAL VIEW HAS BEEN TAKEN. IN THIS REGARD, PARA 26 OF THE TRIBUNA L ORDER IS EXPLICIT ON THE MATTER AND IT HAS BEEN STATED CLEARLY THAT ALL THE DECISIONS AND AUTHORITY QUOTED BY THE LD AR HAVE BEEN DULY CONSID ERED. 6. REGARDING THE PENALTY SHOW-CAUSE DATED 18.06.201 2, THE BENCH HAS CONSIDERED THE FIRST SHOW-CAUSE DATED 28.12.201 1 AND THE SECOND SHOW-CAUSE DATED 18.06.2012 AND IN THE TOTALITY OF FACTS HELD THAT THE ASSESSEE WAS MADE AWARE OF THE PENALTY PROCEEDINGS HAVING BEEN INITIATED AGAINST HIM AND HE CHOOSES TO IGNORE THE SAME. THE SAID M.A. NO. 45/JP/2018 M/S AIREN METALS PVT. LTD., JAIPUR VS. ACIT, JAIPUR 8 FINDINGS ARE IN THE CONTEXT OF ISSUANCE OF SHOW-CAU SE AND DENIAL OF REASONABLE OPPORTUNITY BEING HEARD. THEREFORE, IT I S INCORRECT TO HOLD THAT THE BENCH HEAVILY RELIED UPON ONLY THE COMMUNI CATION DATED 18.06.2012 AS ANOTHER SHOW-CAUSE NOTICE. AT THE SA ME TIME, WE NOTE THAT DISCUSSION REGARDING THE SECOND SHOW-CAUSE DAT ED 18.06.2012 FIND MENTION IN THE PENALTY ORDER ONLY AND THERE IS NO S EPARATE COPY OF THE SHOW-CAUSE WHICH IS AVAILABLE ON RECORD. DURING TH E COURSE OF PRESENT PROCEEDINGS, THE LD AR HAS BROUGHT TO OUR NOTICE A COPY OF THE SAID LETTER NO. 142 DATED 18.6.2012 AND IT READS AS UNDE R: NO. ACIT/CIR-4/JPR/2012-13/142 DATED 18.06. 2012 TO, M/S AIREN METALS PVT. LTD. 32, SANGRAM COLONY, C-SCHEME, JAIPUR SIR/MADAM SUB:- PENALTY PROCEEDING U/S 271(1)(C) OF THE INCO ME-TAX ACT, 1961 IN YOUR CASE FOR THE AY 2009-10 REGARDING. PENALTY PROCEEDINGS U/S 271(1)(C) WERE INITIATED A GAINST YOU FOR THE AY 2009-10. YOU ARE HEREBY REQUIRED TO ATTEND T HE OFFICE OF THE UNDERSIGNED EITHER PERSONALLY OR THROUGH YOUR A/R D ULY AUTHORIZED BY YOU, ALONG WITH YOUR SUBMISSION IN FAVOUR OF YOUR C ASE ON 25.06.2012 AT 11:00 AM IF YOU FAIL TO ATTEND THIS OFFICE ON TH E DATE GIVEN ABOVE IT WILL BE ASSUMED THAT YOU HAVE NOTHING TO SAY IN THI S CASE, AND PENALTY SHALL BE LEVIED AGAINST YOU, PRESENTING THAT YOU HA D NO OBJECTION AGAINST THE PENALTY LEVIED. FURTHER IT MAY BE NOTED THAT PENALTY PROCEEDINGS ARE BEING BARRED BY LIMITATION ON 30.06 .2012. M.A. NO. 45/JP/2018 M/S AIREN METALS PVT. LTD., JAIPUR VS. ACIT, JAIPUR 9 7. HOWEVER, WE FIND THAT EVEN IF THE SAID COMMUNICA TION IS TAKEN AS A REMINDER LETTER INSTEAD OF A SHOW-CAUSE NOTICE, I T WILL NOT MAKE A DIFFERENCE TO THE FINDINGS OF THE COORDINATE BENCH AS THE SAID FINDINGS ARE IN THE CONTEXT OF AFFORDING REASONABLE OPPORTUN ITY TO THE ASSESSEE. IN THIS REGARD, THE FINDINGS OF THE BENCH WHICH WIL L MAKE THE POSITION CRYSTAL CLEAR ARE REPRODUCED AS UNDER: 22. AS THE HONBLE HIGH COURT HELD IN THE ABOVE C ASE THAT THE PERSON WHO IS ACCUSED OF THE CONDITIONS MENTIONED IN SECTI ON 271 SHOULD BE MADE KNOWN ABOUT THE GROUNDS ON WHICH THEY INTEND I MPOSING PENALTY ON HIM AS THE SECTION 274 MAKES IT CLEAR THAT ASSES SEE HAS A RIGHT TO CONTEST SUCH PROCEEDINGS AND SHOULD HAVE FULL OPPOR TUNITY TO MEET THE CASE OF THE DEPARTMENT AND SHOW THAT THE CONDITIONS STIPULATED IN SECTION 271(L)(C) DO NOT EXIST AS SUCH HE IS NOT LI ABLE TO PAY PENALTY. THE GROUNDS FOR LEVY OF PENALTY ARE THUS LINKED TO THE ADHERENCE TO THE PRINCIPLE OF NATURAL JUSTICE AND IT WAS HELD THAT S UCH PRINCIPLE OF NATURAL JUSTICE SHOULD NOT BE OFFENDED. NOW, LETS EXAMINE HOW THE SAME IS APPLICABLE IN THE FACTS OF THE CASE. IN THE INSTANT CASE, THE ASSESSEE HAS BEEN ISSUED TWO SHOW-CAUSE NOTICES. THE FIRST SHOW- CAUSE NOTICE DATED 28.12.2011 WAS ISSUED ALONG WITH THE PASSING OF THE ASSESSMENT ORDER DATED 28.12.2011 WHERE THE ASSESSEE WAS MADE AWARE OF INITIATION OF THE PENALTY PROCEEDINGS AND THEREAFTER, ANOTHER SHO W-CAUSE NOTICE WAS ISSUED ON 18.06.2012. THOUGH THE FIRST SHOW-CAUSE N OTICE TALKS ABOUT CONCEALING THE PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME AND THE LATTER SHOW-CAUSE NOTICE TALKS AB OUT BOTH CONCEALING THE PARTICULARS OF INCOME AND FURNISHING INACCURATE PARTICULARS OF INCOME, THE ASSESSEE HOWEVER CHOSE TO IGNORE BOTH T HE SHOW-CAUSE NOTICES AND NEITHER ATTENDED THE PENALTY PROCEEDING S NOR ANY WRITTEN M.A. NO. 45/JP/2018 M/S AIREN METALS PVT. LTD., JAIPUR VS. ACIT, JAIPUR 10 SUBMISSIONS/EXPLANATIONS WERE SUBMITTED BEFORE THE ASSESSING OFFICER. THEREFORE, IT IS CRYSTAL CLEAR THE ASSESSEE WAS MAD E AWARE OF THE PENALTY PROCEEDINGS HAVING INITIATED AGAINST IT AND WAS GRANTED TWO OPPORTUNITIES BY THE ASSESSING OFFICER TO PRESENT I TS CASE/OFFER ITS EXPLANATION. HOWEVER, THE ASSESSEE CHOOSES TO IGNOR E THOSE SHOW- CAUSE NOTICES AND NOW HAS COME UP BEFORE US AND PLE ADED THAT THE PRINCIPLE OF NATURAL JUSTICE HAS BEEN VIOLATED BY S TATING THAT THE SHOW- CAUSE NOTICE IS VAGUE. IN OUR VIEW, BY NOT ATTENDIN G TO THE PENALTY PROCEEDINGS BEFORE THE AO WITHOUT SHOWING ANY REASO NABLE CAUSE, THE ASSESSEE HAS EFFECTIVELY WAIVED ITS RIGHT TO CONTES T AT HIGHER APPELLATE FORUM THAT HIS RIGHTS TO PLEAD HAVE BEEN VIOLATED. EVEN BEFORE US, NO PLEADINGS HAVE BEEN TAKEN TO SHOW THAT THERE EXISTE D A REASONABLE CAUSE FOR NOT ATTENDING TO THE PENALTY PROCEEDINGS AND OFFERING ITS EXPLANATION BEFORE THE AO. FURTHER, NO SUCH PLEADIN G HAS BEEN TAKEN BEFORE THE LD CIT(A) AS WELL REGARDING VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. HAVING RECORDED THE SATISFACTION IN THE AS SESSMENT ORDER, THE PENALTY PROCEEDINGS HAVE BEEN VALIDLY INITIATED AND THE ISSUANCE OF NOTICE U/S 274 IS IN FURTHERANCE OF RECORDING OF SU CH SATISFACTION AND HAS THUS TO BE READ ALONG WITH THE ASSESSMENT ORDER AND NOT INDEPENDENT OF IT. IN OUR VIEW, THE ASSESSEE HAS RIGHTLY BEEN M ADE AWARE OF THE INITIATION OF PENALTY PROCEEDINGS AND IT FOR REASON S BEST KNOWN TO IT CHOOSE TO REMAIN SILENT AND FAILED TO OFFER ANY EXP LANATION DURING THE PENALTY PROCEEDINGS. WE THEREFORE DONOT SEE ANY INF IRMITY IN THE INITIATION OF THE PENALTY PROCEEDINGS AND THERE IS CLEARLY NO VIOLATION OF PRINCIPLE OF NATURAL JUSTICE AS CANVASSED BY THE LD AR. 8. WE, HOWEVER, AGREE WITH THE LD AR THAT THE NON- CONSIDERATION OF THE DECISION OF THE HONBLE RAJASTHAN HIGH COURT IN CASE OF SHEVETA M.A. NO. 45/JP/2018 M/S AIREN METALS PVT. LTD., JAIPUR VS. ACIT, JAIPUR 11 CONSTRUCTION CO. PVT LTD VS ITO IN DB ITA NO. 534/2 008 DATED 6.12.2016 IS A MISTAKE APPARENT FROM RECORD IN THE CONTEXT OF SPECIFIC LIMB OF SECTION 271(1)(C) INVOKED BY THE AO AND PEN ALTY FINALLY LEVIED BY THE AO. IN THAT VIEW OF THE MATTER, WE HEREBY RECAL L THE ORDER OF THIS BENCH IN ITA NO. 820/JP/2016 DATED 29.09.2017 AND T HE REGISTRY IS DIRECTED TO FIX THE MATTER IN DUE COURSE. ORDER PRONOUNCED IN THE OPEN COURT ON 05/07/2018. SD/- SD/- DQY HKKJR FOE FLAG ;KNO (KUL BHARAT) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 05/07/2018. * GANESH KR VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S AIREN METALS PVT. LTD., JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- ACIT, JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { M.A. NO. 45/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR