K.K.Praveen, Cochin V. DCIT, Ernakulam

MA 7/COCH/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7715 (ITAT-COCHIN)
• Duration Of Justice: 11 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-02-2012
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 09-12-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 22-02-2011
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Assessee Lawyers: P DANIEL ADV
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI N.R.S.GANESAN, JM AND SANJAY AROR A, AM M.P. NOS. 07 & 08/COCH/2011 (ARSG. OUT OF I.T.A NOS. 168 & 169/COCH/2009) ASSESSMENT YEAR: 2005-06 SHRI K.K.PRAVEEN, POWER WORLD, PULLEPADY, COCHIN-35 [PAN: AFEPK 3438B] VS. THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-2(2), ERNAKULAM. (ASSESSEE-APPLICANT) (REVENUE- RESPONDENT) ASSESSEE BY SHRI P. DANIEL, ADV.-AR REVENUE BY MS. S. VIJAYAPRABHA, JR.DR DATE OF HEARING 09/12/2011 DATE OF PRONOUNCEMENT 10/02/2012 O R D E R PER SANJAY ARORA, AM: THESE ARE A SET OF TWO MISCELLANEOUS PETITIONS U/S . 254(2) OF THE INCOME-TAX ACT, 1 961 (`THE ACT HEREINAFTER) BY THE ASSESSEE IN RESP ECT OF ITS APPEALS FOR THE ASSESSMENT YEAR (A.Y. 2005-06), CONTESTING THE LEVY OF PENALTY U/S. 271D (IN I.T.A. NO. 168/COCH/2009) AND U/S. 271E (IN I.T.A. NO. 169/COC H./2009) OF THE ACT BY THE TRIBUNAL VIDE ITS CONSOLIDATED ORDER DATED 21-12-2010. BOTH THE PETITIONS RAISING THE SAME ISSUE, THESE WERE TAKEN UP FOR HEARING TOGETHER, AND ARE, ACCORDINGLY, BEING DISPOSED OF BY A COMMON, CONSOLIDATED ORDER. 2. THE ASSESSEE PER ITS PRESENT APPLICATIONS C LAIMS THAT ITS GROUNDS `B TO `D BEFORE THE TRIBUNAL STAND OMITTED TO BE DECIDED BY IT. THE SAME CHALLENGE THE JURISDICTION ASPECT OF THE LEVY OF PENALTIES WITH REFERENCE TO SEC. 274 OF THE ACT. THE SAID SECTION POSTULATES THAT THE LEVY OF PENALTY, INTER ALIA , U/SS. 271D AND 271E OF THE ACT, WOULD NOT BE M.P. NOS. 07 & 08/COCH/2011 K.K. PRAVEEN V. DY. CIT, ERNAKULAM 2 IMPOSED, EXCEPT UNDER CERTAIN SPECIFIED EXCLUSIONS NOT APPLICABLE IN THE INSTANT CASE, BY AN AUTHORITY BELOW THE RANK OF A JOINT COMMISSIONER OF INCOME-TAX. THE IMPUGNED PENALTIES, NO DOUBT, HAVE BEEN IMPOSED BY ADDITIONA L COMMISSIONER OF INCOME-TAX (RANGE 2, KOCHI), SO THAT IT IS ADMITTEDLY BY AN AU THORITY NOT BELOW THE RANK OF JOINT COMMISSIONER (REFER S. 116). SO, HOWEVER, THE SHOW- CAUSE NOTICE STOOD ISSUED BY THE DY. CIT, CIRCLE 2(2), ERNAKULAM. A SHOW-CAUSE NOTICE CO ULD ONLY BE ISSUED BY AN AUTHORITY COMPETENT TO LEVY THE PENALTY, SO THAT THERE HAS BE EN IN EFFECT A CONTRAVENTION OF SEC. 274 OF THE ACT. THE ADDL. CIT HAS CONSIDERED THE ASSESS EES SAID OBJECTIONS PER HIS ORDER. SIMILARLY, THE FIRST APPELLATE AUTHORITY, BEFORE WH OM THE RELEVANT ISSUE/S WAS RAISED PER GROUNDS 2 TO 4 OF THE ASSESSEES APPEALS, DECIDES T HE SAME PER PARA NOS. 4.1 TO 4.4 OF HIS APPELLATE ORDER IN RESPECT OF PENALTY U/S. 271D, AN D PARA NOS. 3.1 TO 3.4 IN RESPECT OF PENALTY U/S. 271E OF THE ACT. IN HIS VIEW, THE COND ITION OR THE BAR PER SEC. 274 OF THE ACT IS TOWARD IMPOSITION OF THE PENALTY, SO THAT THE PE NALTY PROCEEDINGS COULD BE VALIDLY INITIATED BY AN OFFICER BELOW THE STIPULATED RANK, BEING BY THE ASSESSING OFFICER FRAMING THE ASSESSMENTS, AS IS USUALLY THE CASE. FURTHER, T HE AUTHORITY IMPOSING THE PENALTY HAS GRANTED PROPER HEARING TO THE ASSESSEE, AFFORDING I T DUE OPPORTUNITY TO STATE ITS CASE, BEFORE PASSING THE PENALTY ORDER/S LEVYING THE PENA LTY/S. AS SUCH, THE QUESTION OF NON- OBSERVANCE OF THE MANDATE OF SEC. 274 DID NOT ARISE . THE ASSESSEE HAD SPECIFICALLY RAISED THIS ASPECT PER ITS GROUNDS `B, `C AND `D OF ITS GROUNDS OF APPEAL BEFORE THE TRIBUNAL, WHICH, THOUGH, HAS OMITTED TO ADJUDICATE THE SAME. THE IMPUGNED ORDERS, IT IS PRAYED, BE RECALLED FOR THE DECIDING THE SAID GROUNDS RAISING THE LEGAL ISSUE IN RESPECT OF THE VALIDITY OF THE PENALTIES LEVIED. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. AFTER DISCUSSING THE ASSESSEES PRINCIPAL CONTENTIONS AS TO EXISTENCE OF A REASONABLE CAUSE, PER PARA NOS. 10.1 TO 10.4 OF ITS ORDER, THE TRIBUNAL, VIDE PARA 10.5 OF ITS COMBINED ORDER (IN RESPECT OF PENALTY U/S. 271D / IN ITA NO. 168/COCH/2009), STAT ES AS UNDER: ` 10.5 UNDER THE GIVEN FACTS AND CIRCUMSTANCES, WE A RE IN AGREEMENT WITH THE FACTUAL AND LEGAL FINDINGS BY THE AUTHORITIES BELOW, BOTH OF WHICH H AVE PASSED DETAILED ORDERS, WHICH, BEING COMPLIMENTARY TO EACH OTHER, STAND CAREFULLY PERUSED BY US. WE, THEREFORE, ENDORSING T HE SAME, CONFIRM THE M.P. NOS. 07 & 08/COCH/2011 K.K. PRAVEEN V. DY. CIT, ERNAKULAM 3 LEVY OF PENALTY U/S. 271D OF THE ACT, ALSO PLACING RELIANCE ON THE DECISION BY THE HONBLE APEX COURT IN THE CASE OF CIT VS. K. Y. PILLIAH AND SONS (1967) 63 ITR 411(SC) IN VIEW OF OUR AGREEMENT AFOR ESAID. WE DECIDE ACCORDINGLY . [EMPHASIS, OURS] SIMILARLY, IN RESPECT OF THE APPEAL CONTESTING CONF IRMATION OF PENALTY U/S. 271E (IN ITA NO. 169/COCH/2009) , IT HOLDS, AMONG OTHERS, AS UND ER: `12.3 WE ARE, FOR THE REASONS AFORE-STATED, NOT IN AGREEMENT WITH THE REVENUES STAND ALL OUR OBSERVATIONS IN RELATION TO THE ASSESSEES APPEAL IN I.T.A. NO. 168/COCH/2009 WOULD BE EQUALLY APPLICABLE AND BE CONSIDERED AS FORMING PART OF OUR ORDER IN ITS APPE AL IN I.T.A. NO. 169/COCH/2009 AS WELL . CLEARLY, THE LEGAL ISSUE/S RAISED BY THE ASSESSEE P ER ITS GROUNDS `B TO `D BEFORE THE TRIBUNAL, STAND ADEQUATELY MET BY IT BY ENDORSING T HE FINDINGS AS MADE BY THE FIRST APPELLATE AUTHORITY, FURTHER ADVERTING TO A DECISIO N BY THE APEX COURT TO THE EFFECT THAT UNDER SUCH CIRCUMSTANCES IT IS NOT NECESSARY FOR TH E TRIBUNAL TO RECORD ITS FINDINGS AND CONCLUSIONS SEPARATELY. WE ARE THEREFORE UNABLE TO SEE AS TO HOW THE ASSESSEE CONTENDS FOR A NON-DISPOSAL OF ITS RELEVANT GROUNDS. THERE M AY HAVE BEEN NO SPECIFIC REFERENCE TO THE RELEVANT GROUND NUMBERS, WHICH IS IN FACT SO FO R ALL THE GROUNDS RAISED, INCLUDING THOSE ADMITTEDLY DISPOSED OF BY THE TRIBUNAL, IN IT S IMPUGNED ORDER, BUT THAT IS ESSENTIALLY A MATTER CLERICAL OR AT BEST OF DRAFTING THE ORDER. AS LONG AS EACH SPECIFIC ISSUE RAISED BY THE ASSESSEE-APPELLANT PER ITS GROUNDS IS ADDRESSED PER ITS ORDER A MATTER OF FACT - AND ON WHICH WE HAVE ISSUED A FINDING IN THE INSTANT CASE, IT CANNOT BE SAID THAT THERE HAS BEEN NO DISPOSAL OF ANY GROUND FOR THE REASON THAT THE ORDE R DOES NOT SPECIFICALLY ALLUDES TO IT IN THE ORDER. THE ASSESSEES CONTENTION IS THUS FOUND TO BE NOT CORRECT ON FACTS, AND THERE HAS INDEED BEEN CONSIDERATION AS WELL AS ADJUDICATION B Y THE TRIBUNAL OF THE ASSESSEES LEGAL CONTENTIONS BY IT PER THE SAID GROUNDS, AS WAS INDE ED THE CASE BY THE AUTHORITIES BELOW. NO INTERFERENCE WITH THE IMPUGNED ORDER, THEREFORE, IS CALLED FOR. WE DECIDE ACCORDINGLY. M.P. NOS. 07 & 08/COCH/2011 K.K. PRAVEEN V. DY. CIT, ERNAKULAM 4 4. IN THE RESULT, BOTH THE MISCELLANEOUS APPL ICATIONS BY THE ASSESSEE ARE DISMISSED. SD/- SD/- (N.R.S.GANESAN) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: ERNAKULAM DATED: 10TH FEBRUARY, 2012 GJ COPY TO: 1. SHRI K.K.PRAVEEN, POWER WORLD, PULLEPADY, COCHIN 682 035 2. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-2( 2), ERNAKULAM. 3. THE COMMISSIONER OF INCOME-TAX (APPEALS)-II, KOC HI, 4. THE COMMISSIONER OF INCOME-TAX, KOCHI. 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE . BY ORDER ( ASSISTANT REGISTRAR) ITAT, COCHIN BENCH