Assistant Commissioner of Income-tax, Malegaon V. The Malegaon Merchants Co-op. Bank Ltd., Nashik

MA 45/PUN/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4382 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 10 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-05-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 20-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Initiation of penalty proceedings
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “B”, PUNE BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER M.A. No.45/PUN/2021 (Arising out of ITA No.471/PUN/2016 िनधाᭅरण वषᭅ / Assessment Year: 2011-12 ACIT, Circle- 3, Malegaon. Vs. The Malegaon Merchants Co-op. Bank Ltd., 379, Somwar Ward, Malegaon Dist., Nashik- 423203. PAN : AAAAT2790D Appellant Respondent आदेश / ORDER PER INTURI RAMA RAO, AM: This present Miscellaneous Application is filed by the Revenue seeking recall of the order passed by this Tribunal in ITA No.471/PUN/2016 for the assessment year 2011-12 dated 20.12.2017 on the ground that : (i) The Tribunal had recorded wrong finding of fact that the Assessing Officer had not recorded satisfaction for initiation of penalty proceedings u/s 271(1)(c) of the Revenue by : Shri Piyushkumar Singh Yadav Assessee by : None Date of hearing : 06.05.2022 Date of pronouncement : 11.05.2022 MA No.45/PUN/2021 2 Income Tax Act, 1961 (‘the Act’) in the assessment order. (ii) The Tribunal had seriously fell in error in deleting the penalty on the ground that the Assessing Officer had not struck off the relevant column of limb on which the penalty proceedings was initiated and without considering the provisions of section 292B of the Act as well as the decision of the Hon’ble Supreme Court in the case of CIT vs. Atul Mohan Bindal, 317 ITR 1 (SC). 2. When the Miscellaneous Application had called on, none appeared on behalf of the assessee despite due service of notice of hearing. In the circumstances, after hearing the ld. Sr. DR, we proceed to dispose of the same on merits. 3. Before us, the ld. Sr. DR submits that the order of the Tribunal (supra) suffers from mistake apparent from the record as the Tribunal while passing the impugned order ignored the provisions of section 292B of the Act and the decision of the Hon’ble Supreme Court in the case of Atul Mohan Bindal (supra). The ld. Sr. DR submitted that the Tribunal had passed the order on wrong assumption of fact that the Assessing Officer had not any MA No.45/PUN/2021 3 satisfaction for initiation of penalty proceedings u/s 271(1)(c) of the Act in the assessment order. 4. We heard the ld. Sr. DR and perused the contents of the Miscellaneous Application. We also perused the impugned order as well as the orders of the lower authorities. We find merit in the contention of the ld. Sr. DR that the Tribunal recorded a wrong finding of fact that the Assessing Officer had not any satisfaction for initiation of penalty proceedings u/s 271(1)(c) of the Act. But, we also find that the order of the Tribunal is not based on this fact alone, but the Tribunal had directed the Assessing Officer to delete the penalty u/s 271(1)(c) for not striking off the relevant limb of the show-cause notice following the decision of the Hon’ble Bombay High Court in the case of CIT vs. Shri Samson Perinchery, 392 ITR 4 (Bom.). The ld. Sr. DR also failed to demonstrate before us that as to how the decision of the Hon’ble Supreme Court in the case of Atul Mohan Bindal (supra) is applicable to the facts of the present case and also the decision was cited before the Tribunal at the time of hearing of appeal. In the circumstances, it cannot be said that the order of the Tribunal (supra) suffers from mistake apparent from the record, when the Tribunal passed the order following the law laid MA No.45/PUN/2021 4 down by the Hon’ble Jurisdictional High Court (supra). Therefore, we do not find any mistake in the order passed by this Tribunal and, accordingly, the present Miscellaneous Application filed by the Revenue stands dismissed. 5. In the result, the Miscellaneous Application filed by the Revenue stands dismissed. Order pronounced on this 11 th day of May, 2022. Sd/- Sd/- (PARTHA SARATHI CHAUDHURY) (INTURI RAMA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; ᳰदनांक / Dated : 11 th May, 2022. Sujeet आदेश कᳱ ᮧितिलिप अᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The CIT(A)-1, Nashik. 4. The Pr. CIT-1, Nashik. 5. िवभागीय ᮧितिनिध, आयकर अपीलीय अिधकरण, “B” बᱶच, पुणे / DR, ITAT, “B” Bench, Pune. 6. गाडᭅ फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune.