M.Radhakrishnan, Erode V. ACIT, Erode

MA 81/CHNY/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4439 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-07-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 01-07-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 11-05-2016
• Court: TRIBUNAL
• Department Lawyers: B NAVEEN KUMAR
• Assessee Lawyers: S SRIDHAR ERODE

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI , ! ' ! # . $% , & '( BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY, JUDICIAL MEMBER M.A.NOS. 80 & 81/MDS/2016 (IN ITA NO. 2112/MDS/14 & MA NO.31/MDS/2015 IN ITA NO.2112/MDS/14) / ASSESSMENT YEAR : 2009-10 M. RADHAKRISHNAN, 63, PERIYAMANIAMPALAYAM, AVAL POONDURAI, ERODE-638 115. PAN AJLPR2812D ( APPLICANT) V. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE II, ERODE. ( / RESPONDENT) APPLICANT BY : SHRI S. SRIDHAR, ADVOCATE (ERODE) RESPONDENT BY : SHRI B. NAVEEN KUMAR, JCIT / DATE OF HEARING : 01.07.2016 / DATE OF PRONOUNCEMENT: 20.07.2016 ) / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THESE MISCELLANEOUS APPLICATIONS BY THE ASSESSEE ARE DIRECTED AGAINST THE COMMON ORDER OF THE TRIBUNAL D ATED 26.2.2016 IN ITA NOS.2112 & 2433/MDS/2014 AND CO - - MA 80 & 81/16 2 NO.141/MDS/14 FOR THE AY 2009-10. 2. THE LD. AR, SUBMITTED THAT THE ASSESSEE CAME IN APPEAL BEFORE THE TRIBUNAL IN ITA NO.2112/MDS/2014 WITH RE GARD TO LEVY OF PENALTY U/S.271(1)(C) OF THE ACT. THE TRIBUNAL CONFIRMED THE LEVY OF PENALTY U/S.271(1)(C) OF THE ACT. ACCORDIN G TO THE LD. AR, SINCE, THE ISSUE IN QUANTUM PROCEEDINGS IS ADMITTED BY THE HIGH COURT, IT AMOUNTS TO INVOLVEMENT OF SUBSTANTIAL QUE STIONS OF LAW, MEANING THEREBY THAT ISSUE IS DEBATABLE AND HENCE, THERE CANNOT BE AN ALLEGATION THAT EITHER CONCEALMENT OF PARTICU LARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME D OES ARISE AND PENALTY CANNOT BE LEVIED. AT THIS STAGE, CONFIRMAT ION OF PENALTY BY THE TRIBUNAL IS INAPPROPRIATE. 3. THE LD. DR, RELIED ON THE ORDER OF THE TRIBUNAL. 4. WE HAVE HEARD BOTH THE PARTIES. IN OUR OPINION, THE TRIBUNAL AFTER DISCUSSING THE CASE LAWS RELIED ON B Y THE LD. AR, OBSERVED THAT THE PENALTY TO BE SUSTAINED AT 100% O F TAX SOUGHT TO BE EVADED. NOW, THE CONTENTION OF THE LD. AR IS THAT SINCE QUANTUM PROCEEDING IN THIS CASE IS ADMITTED BY THE HIGH COURT, THE PENALTY CANNOT BE LEVIED. WE DO NOT FIND ANY M ERIT IN THE ARGUMENT OF THE LD. AR AND THERE IS NO MISTAKE APPA RENT FROM - - MA 80 & 81/16 3 THE RECORD, WE ARE NOT INCLINED TO RE-CALL OUR EARL IER ORDER. 4.1 IN THE RESULT, THE MISC. APPLICATION OF THE ASS ESSEE IN MA NO.80/MDS/2016 IS DISMISSED. 5. COMING TO THE MA NO.81/MDS/2016, THE LD. AR SUBM ITTED THAT MA IS AGAINST THE ORDER OF THE TRIBUNAL IN MA NO.31/MDS/2015 DATED 10.04.2015. IN EARLIER OCCASI ON, THE DEPARTMENT FILED MA NO.31/MDS/2015 SEEKING THE TRIB UNAL RECALLING OF EARLIER ORDER OF THE TRIBUNAL DATED 9. 10.2014 IN ITA NO.2112/MDS/2014 ON THE REASON THAT THE APPEAL OF T HE REVENUE IS TO BE CLUBBED ALONG WITH THE ASSESSEES APPEAL FOR ADJUDICATION. THE CONTENTION OF THE LD. AR IS THAT IN VIEW OF THE DECISION OF CUSTOMS, EXCISE AND GOLD TRIBUNAL, MUMB AI IN THE CASE OF COMMISSIONER OF CUSTOMS V. INDORAMA SYNTHET ICS DATED 16.12.2005, IT IS NOT APPROPRIATE TO RECALL THE ORD ER OF THE TRIBUNAL, EX PARTE, TO CLUB THE ASSESSEES APPEAL W ITH THE REVENUES APPEAL. 6. WE HAVE HEARD BOTH THE SIDES. THE LD. DR SUBMIT TED THAT THE ASSESSEE CANNOT BE FILED MA U/S.254(2) OF THE A CT, WHICH IS NOT PERMITTED BY LAW. ADMITTEDLY, THE DECISION OF CUSTOMS, EXCISE AND GOLD TRIBUNAL, MUMBAI IS NOT BINDING ON THIS - - MA 80 & 81/16 4 TRIBUNAL, AS IT RELATES TO DIFFERENT CONTEXT. FURT HER, IN THIS CASE, THE ASSESSEE FILED THE MA AGAINST THE ORDER PASSED U/S.254(2) OF THE ACT, WHICH CANNOT BE SURVIVED. THE ASSESSEE C AN FILE MISC. APPLICATION U/S.254(2) OF THE ACT AGAINST THE ORDER PASSED U/S.254(1) OF THE ACT. FURTHER, THERE IS A BINDING JUDGMENT OF THE SUPREME COURT IN THE CASE OF COMMISSIONER OF SALES- TAX, U.P. VS. VIJAY INT. UDYOG (152 ITR 111), WHEREIN IT WAS HELD THAT THE ASSESSEES APPEAL AND REVENUES APPEAL TO BE CLUBBE D TOGETHER, HEARD TOGETHER AND DISPOSED OF TOGETHER. HENCE, WE DO NOT FIND MERIT IN THE CONTENTION OF THE ASSESSEE. THE SAME IS DISMISSED. 7. IN THE RESULT, THE MISC. APPLICATION OF THE ASSE SSEE IN MA NO.81/MDS/2016 IS DISMISSED. ORDER PRONOUNCED ON WEDNESDAY, THE 20 TH OF JULY, 2016 AT CHENNAI. SD/- SD/- ( . !'#$ ) ( %&' ( ) * ) ( DUVVURU RL REDDY ) (CHANDRA POOJARI) 6 78 /JUDICIAL MEMBER ! 78/ACCOUNTANT MEMBER %!6 /CHENNAI, A7& /DATED, THE 20 TH JULY, 2016. MPO* - - MA 80 & 81/16 5 7!B C D( EF!D /COPY TO: 1. E($ /APPELLANT 2. /RESPONDENT 3. G (E($ ) /CIT(A) 4. G /CIT 5. DHI$ J /DR 6. I# K /GF.