Shrinath Spinners Pvt.Ltd., Ahmedabad V. The Income tax Officer,Ward-8(3), Ahmedabad

MA 58/AHD/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6502 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-07-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: misc
• Appeal Filed On: 28-04-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C BEFORE SHRI G.D. AGARWAL, VICE-PRESIDENT (AZ) AND SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER DATE OF HEARING : 24/06/2011 DRAFTED ON:24/06/ 2011 MA NO.58/AHD/2011 (OUT OF IT(SS)A NO.488/AHD/2010) BLOCK PERIOD 1988-89 TO 1998-99 & BROKEN PERIOD FROM 1/4/98 TO DATE OF CONCLUSION OF SEARCH THE ITO WARD-8(3) AHMEDABAD VS. SHRINATH SPINNERS PVT.LTD. H.PO.HOUSE NR.TOWN HALL ELLIS BRIDGE AHMEDABAD PAN/GIR NO. : AAECS 0478 H (APPLICANT) .. (RESPONDENT) APPLICANT : SHRI S.N. SOPARKAR, AR RESPONDENT BY: ALBINUS TIRKEY, JCIT-DR O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THROUGH THIS MISCELLANEOUS PETITION RECEIVED ON 28 /04/2011 IN RESPECT OF THE ORDER OF THE TRIBUNAL DATED 15/10/20 10, THE APPLICANT HAS STATED THAT APART FROM THE MERITS OF THE CASE, IT W AS ALTERNATIVELY PLEADED TO DIRECT THE ASSESSING OFFICER TO IMPOSE MINIMUM P ERCENTAGE OF PENALTY. 2. NOW BEFORE US, IT IS PLEADED BY THE LEARNED A UTHORISED REPRESENTATIVE MR. S.N.SOPARKAR THAT A PENALTY OF R S.7 LACS WAS IMPOSED U/S.158BFA(2) OF THE I.T.ACT, 1961 BY THE ASSESSIN G OFFICER. AS PER PARAGRAPH NO.7 OF THE PENALTY ORDER, MINIMUM LEVIAB LE PENALTY BY MA NO.58/AHD/2011 [OUT OF IT(SS)A NO.488/AHD/2010] - 2 - APPLYING RATE OF PENALTY AT 100% WAS AT RS.4,63,860 /- AND THE MAXIMUM PENALTY BY APPLYING THE RATE OF 300%, IT WAS AT RS. 13,91,589/-. THE LEARNED AUTHORISED REPRESENTATIVE HAS PLEADED THAT DURING THE COURSE OF PROCEEDINGS AN ALTERNATE PLEA WAS RAISED THAT INSTE AD OF LEVYING PENALTY OF RS.7 LACS, THE SAME MAY BE RESTRICTED TO MINIMUM AM OUNT OF PENALTY AS NOTED BY THE ASSESSING OFFICER. HE HAS, THEREFORE, SUBMITTED THAT SINCE THIS ARGUMENT WAS NOT CONSIDERED BY THE TRIBUNAL WH ILE REVERSING THE ORDER OF THE LEARNED CIT(APPEALS) AND AFFIRMING THE LEVY OF PENALTY, THEREFORE, THE MISTAKE BEING APPARENT DESERVES TO B E RECTIFIED. 3. ON THE OTHER HAND, FROM THE SIDE OF THE REVENUE JCIT ALBINUS TIRKEY APPEARED AND VEHEMENTLY OBJECTED THE SUBMISS ION ON THE GROUND THAT THE ASSESSEE IS NOT ENTITLED TO RAISE THIS QUE STION THROUGH A MISCELLANEOUS PETITION BECAUSE SUCH AN ALTERNATE P LEA WAS NOT SUBSTANTIATED BY ANY EVIDENCE AND THE ASSESSEE CANN OT ESTABLISH THAT ANY SUCH ALTERNATE SUGGESTIONS WAS EVER MADE BEFORE THE HON'BLE BENCH SPECIALLY WHEN THE ASSESSEE HAS EVEN NOT FILED ANY CROSS OBJECTION. 4. WE HAVE HEARD BOTH THE SUBMISSIONS AND ALSO PERU SED THE RELEVANT ORDERS. WE HAVE ALSO REFERRED OUR LOG-BOOKS. THER E IS NO SUCH NOTING MADE BY US IN OUR LOG-BOOKS. IT IS ALSO AN ADMITTE D FACT AS POINTED OUT BY LEARNED DEPARTMENTAL REPRESENTATIVE, THAT THE ASSES SEE HAS NOT MOVED ANY CROSS OBJECTION SUPPORTING THE ORDER OF LEARNED CIT(APPEALS). SINCE THE ISSUE OF LEVY OF PENALTY NOW STOOD SETTLED BY T HIS FORUM, THEREFORE, ANY TINKERING IN THE SAID ORDER DATED 15/10/2010 MA Y TANTAMOUNT TO MA NO.58/AHD/2011 [OUT OF IT(SS)A NO.488/AHD/2010] - 3 - REVIEW OF THE ORDER WHICH IS NOT PERMISSIBLE U/S.25 4(2) OF THE I.T.ACT. WE, THEREFORE, REJECT THIS PLEA AND DISMISS THE PET ITION. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DISMISSED. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 8 TH JULY, 2011. SD/- SD/- ( G.D. AGARWAL ) ( MUKUL KR. SHRAWAT ) VICE PRESIDENT (AZ) JUDICIAL ME MBER AHMEDABAD; DATED 08 / 07 /2011 T.C. NAIR, SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPLICANT. 2. THE RESPON DENT 3. THE CIT CONCERNED. 4. THE LD. CIT(APP EALS)-XIV, AHMEDABAD 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD 1. DATE OF DICTATION..24/6/2011 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 24/6/2011 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S8.7.11 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8.7.11 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER