Income-tax Officer, Nashik V. Goldie Jogendersingh Anand, Nashik

MA 77/PUN/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6480 (ITAT-PUNE)
• Duration Of Justice: 7 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-04-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 02-02-2018
• Assessment Year: 2006-2007
• Appeal Filed On: 28-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR VIVEK AGGARWAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E , ! , '# $ !% , ! & BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI VIKAS AWAS THY, JM M.A. NO.77/PUN/2017 ( ARISING OUT OF ITA NO.188/PUN/2016) ' (' / ASSESSMENT YEAR : 2006-07 THE INCOME TAX OFFICER, WARD-1(1), NASHIK. .. /APPLICANT / V/S. GOLDIE JOGENDERSINGH ANAND, ANAND KINETICS, D-38, NICE AREA, MIDC, SATPUR, NASHIK-422 007. PAN :AFLPA3483K . / RESPONDENT REVENUE BY : DR.VIVEK AGGARWAL ASSESSEE BY : SHRI PRAMOD SHINGTE / DATE OF HEARING : 09.03.2018 / DATE OF PRONOUNCEMENT : 20.04.2018 ) / ORDER PER VIKAS AWASTHY, JM THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY REVENUE U/S . 254(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS TH E ACT) SEEKING RECTIFICATION IN THE ORDER OF TRIBUNAL IN ITA NO.188/PUN/2016 DATED 22.02.2017. 2 MA NO. 77/PUN/2017 A.Y.2006-07 2. DR. VIVEK AGGARWAL REPRESENTING THE DEPARTMENT SUBMIT TED THAT TRIBUNAL ALLOWED THE APPEAL OF ASSESSEE DELETING PENALTY LEVIED U/S. 2 71(1)(C) OF THE ACT ON ACCOUNT OF DEFECTIVE NOTICE ISSUED U/S.274 R.W.S 271(1)(C) OF THE ACT. THE LD. DR SUBMITTED THAT TRIBUNAL HAS DELETED LEVY OF PENALTY ON THE GROUND THAT IRRELEVANT PART OF THE PROFORMA NOTICE WAS NOT STRUCK OFF. 2.1 THE LD. DR SUBMITTED THAT HON'BLE SUPREME COURT OF IN DIA IN THE CASE OF MAK DATA P. LTD. VS. COMMISSIONER OF INCOME TAX-II, REP ORTED AS 358 ITR 593 HAS HELD THAT THE ASSESSING OFFICER IS NOT REQUIRED TO REC ORD HIS SATISFACTION IN A PARTICULAR MANNER OR REDUCE IT INTO WRITING. THE LD. DR FURTH ER SUBMITTED THAT HON'BLE BOMBAY HIGH COURT IN THE CASE OF COMMISSIONER OF I NCOME TAX VS. SMT. KAUSHALYA AND OTHERS, REPORTED AS 216 ITR 660 HA S HELD THAT MERE NON- STRIKING OF THE INACCURATE PORTION CANNOT INVALIDATE NOTICE. THE LD. DR CONTENDED THAT THE TRIBUNAL IN THE ORDER DATED 22.02.201 7 HAS NOT CONSIDERED THE RATIO LAID DOWN BY THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. SMT. KAUSHALYA & OTHERS (SUPRA.). TO FURTHER BUTTRESS HIS SUBMISSIONS, THE LD. DR HAS PLACED RELIANCE ON THE FOLLOWING DECISIONS: I) CIT VS. MITHILA MOTORS (P) LTD. REPORTED AS 149 ITR 751 (PATNA) II) H P STATE FOREST CORPN. LTD. VS. CIT & ORS (HP) REPORTE D AS 267 ITR 285. III) CIT VS. MAHARAJ KRISHNAN ( DEL) REPORTED AS 246 ITR 327. 3. SHRI PRAMOD SHINGTE APPEARING ON BEHALF OF ASSESSEE/RE SPONDENT VEHEMENTLY OPPOSED THE MISCELLANEOUS APPLICATION FILED BY TH E DEPARTMENT. THE LD. AR SUBMITTED THAT THERE IS NO MISTAKE IN THE ORDER OF TRIBUNAL; THEREFORE, THERE IS NO QUESTION OF ANY RECTIFICATION IN THE ORDER OF T RIBUNAL. THE LD. AR ASSERTED THAT THE TRIBUNAL DELETED THE PENALTY LEVIED U/S . 271(1)(C) OF THE ACT 3 MA NO. 77/PUN/2017 A.Y.2006-07 NOT ONLY ON THE GROUND OF ISSUANCE OF DEFECTIVE NOTICE U /S. 274 R.W.S 271(1)(C) OF THE ACT BUT HAS ALSO POINTED DEFECT IN RECORDING OF SATISFA CTION FOR INITIATING PENALTY PROCEEDINGS. 4. WE HAVE HEARD THE SUBMISSIONS MADE BY REPRESENTATIV ES OF RIVAL SIDES. THE REVENUE IS SEEKING RECTIFICATION IN THE ORDER OF TRIBUNA L DATED 22.02.2017 (SUPRA.) ON THE GROUND THAT TRIBUNAL HAS DELETED PENALTY U /S. 271(1)(C) OF THE ACT MERELY ON THE GROUND OF NON STRIKING OF IRRELEVANT LIM B IN THE NOTICE ISSUED U/S. 274 R.W.S. 271(1)(C) OF THE ACT. A PERUSAL OF TRIBUNAL ORD ER DATED 22.02.2017 SHOWS THAT PENALTY LEVIED U/S. 271(1)(C) OF THE ACT HAS BEEN DELETED NOT ONLY ON THE GROUND OF VAGUENESS IN THE NOTICE U/S. 274 R.W.S. 271(1)(C) BUT HAS ALSO POINTED INCONSISTENCY IN RECORDING SATISFACTION AN D LEVY OF PENALTY. THE RELEVANT EXTRACT OF THE ORDER IS REPRODUCED HEREIN BELOW: 6. IT IS CLEARLY EVIDENT FROM THE PERUSAL OF NOTICE THAT THE ASSESSING OFFICER IS NOT CLEAR AS TO UNDER WHAT CHARGE PENALTY HAS TO BE LEVIED U/S. 271(1)(C) OF THE ACT. THE NOTICE IS VAGUE AS IT FAILS TO CLEA RLY SPELL OUT THE CHARGE FOR LEVY OF PENALTY. A FURTHER EXAMINATION OF THE RECOR DS SHOWS THAT THE OBSERVATIONS OF THE ASSESSING OFFICER ARE INCONSIST ENT WHILE RECORDING SATISFACTION AND AT THE TIME OF PASSING OF THE PENA LTY ORDER. THE ASSESSING OFFICER HAS LEVIED PENALTY FOR FURNISHING INACCURAT E PARTICULARS OF INCOME. THE ASSESSING OFFICER IS INCOHERENT IN REASONING FO R RECORDING SATISFACTION AND IN PASSING THE ORDER LEVYING PENALTY. 5. A PERUSAL OF THE ASSESSMENT ORDER DATED 26.12.2008 S HOWS THAT THE ASSESSING OFFICER RECORDED SATISFACTION FOR LEVYING PENALTY BY INVOKING BOTH THE CHARGES OF SECTION 271(1)(C) OF THE ACT I.E. CONCEALMENT OF INC OME AND FURNISHING INACCURATE PARTICULARS OF INCOME. THE RELEVANT EXTRACT OF T HE ASSESSMENT ORDER WHERE THE ASSESSING OFFICER HAS RECORDED SATISFACTION READS AS UNDE R: 08.. HERE I AM SATISFIED THAT THE ASSESSEE HAS CON CEALED THE INCOME AND HAS ALSO FURNISHED INACCURATE PARTICULARS OF INCOME WITHIN THE MEANING OF SECTION 271(1)(C) OF THE ACT READ WITH EXPLANATION 1 TO IT, HENCE, PENALTY PROCEEDINGS U/S. 271(1)(C) ARE INITIATED SEPARATELY . 4 MA NO. 77/PUN/2017 A.Y.2006-07 IN THE ORDER LEVYING PENALTY U/S. 271(1) (C) OF THE ACT, THE ASSESSING OFFICER LEVIED PENALTY FOR FURNISHING INACCURATE PARTICULARS OF INCOME. THE RELEVANT EXTRACT OF THE ORDER LEVYING PENALTY DATED 28.03 .2013 PASSED U/S. 271(1)(C) READS AS UNDER: 9. I, THEREFORE, DIRECT THE ASSESSEE TO PAY A SUM OF RS.7,41,237/- (RUPEES SEVEN LACS FORTY ONE THOUSAND TWO HUNDRED T HIRTY SEVEN ONLY) AS PENALTY U/S. 271(1)(C) OF THE I.T. ACT, 1961 FOR A.Y. 2006-07 FOR FURNISHING INACCURATE PARTICULARS OF INCOME BEING 1 00% OF THE TAX SOUGHT TO BE EVADED . THE MANNER IN WHICH SATISFACTION HAS BEEN RECORDED CLEA RLY SHOWS THAT THE THERE WAS AMBIGUITY IN THE MIND OF ASSESSING OFFICER WITH RESPECT TO CHARGE FOR WHICH PENALTY U/S. 271(1)(C) IS TO BE LEVIED. THE TRIBUNAL IN THE ORDER DATED 22.02.2017 HAS POINTED THIS FACT IN PARA-6 (REPRODUCED ABOVE). 6. IN VIEW OF ABOVE, WE DO NOT FIND ANY MERIT IN THE MISCE LLANEOUS APPLICATION FILED BY THE REVENUE. THE REVENUE HAS NOT BEEN ABLE TO SHOW ANY MISTAKE MUCH LESS ANY APPARENT MISTAKE THAT WARRANTS R ECTIFICATION. IN OUR CONSIDERED VIEW, THIS MISCELLANEOUS APPLICATION IS AN ATTEMPT TO SEEK REVIEW OF THE ORDER OF TRIBUNAL WHICH BEYOND THE SCOPE OF SECTION 2 54(2) OF THE ACT. ACCORDINGLY, MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSE D. 7. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY REVENUE IS DISMISSED . ORDER PRONOUNCED ON FRIDAY, THE 20 TH DAY OF APRIL, 2018. SD/- SD/- ( / ANIL CHATURVEDI ) ( $ !% /VIKAS AWASTHY) ACCOUNTANT MEMBER JUDICIAL MEMBER / PUNE; ! / DATED : 20 TH APRIL, 2018. SB 5 MA NO. 77/PUN/2017 A.Y.2006-07 ) * +,$ -$( / COPY OF THE ORDER FORWARDED TO : 1. '# / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A)-1, NASHIK. 4. THE PR. CIT-1, NASHIK. $% &'(#)* , '#')* , +# +,- , / DR, ITAT, B BENCH, PUNE. 6. (./01 / GUARD FILE. // TRUE COPY // 2 / BY ORDER, 3# )- / PRIVATE SECRETARY '# ')* , / ITAT, PUNE.