Assistant Commissioner of Income-tax, Jalgon V. Shri Hakumatrai Dakhanmal Jadhwani, Jalgaon

MA 81/PUN/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6668 (ITAT-PUNE)
• Duration Of Justice: 9 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-05-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 28-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / MA NO. 81 /P U N/ 20 1 7 ARISING OUT OF ITA NO. 1 72 /P U N/20 1 5 AND ITA NO.238/PUN/2015 ASSESSMENT YEAR : 20 09 - 10 THE ASST. COMMISSIONER OF INCOME TAX, CIRCLE 1, JALGAON ... APPLICANT VS. HAKUMATRAI DAKHANMAL JADHWANI PROP. SURESH TRADING COMPAN Y, PLOT NO.1/3738, GAYATRI NAGAR, OPP. POWER HOUSE, JALGAON 425 001 WARD 1 ( 1 ), PUNE ... RESPONDENT PAN: AALPJ4652N APPLICANT BY : S HRI ACHAL SHARMA RESPONDENT BY : SHRI PRAMOD SHINGTE / DATE OF HEARING : 04 . 0 5 .201 8 / DATE OF PRONOUNCEMENT: 15 . 0 5 .201 8 / ORDER PER SUSHMA CHOWLA , JM : THE PRESENT MISCELLANEOUS APPLICATION FILED BY THE REVENUE APPLICANT IS AGAINST THE ORDER OF TRIBUNAL DATED 01.02.2017. 2. THE MISCELLANEOUS APPLICATION FILED B Y THE REVENUE WAS LATER AMENDED AND AMENDED MISCELLANEOUS APPLICATION UNDER SECTION 254(2) OF THE ACT, WAS FILED ON 27.04.2018. AS PER AMENDED MISCELLANEOUS APPLICATION, THE REVENUE - APPLICANT IS 2 M A NO. 81 /P U N/20 1 7 AGGRIEVED BY THE ORDER OF TRIBUNAL IN HOLDING THAT THE RESPO NDENT - ASSESSEE WAS NOT EXIGIBLE TO LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT, REFERENCE IS MADE TO VARIOUS DECISIONS WHICH WERE RELIED UPON BY THE TRIBUNAL. VIDE MISCELLANEOUS APPLICATION, RELIANCE HAS BEEN PLACED ON SERIES OF DECISIONS TO POINT OUT THAT PENALTY PROCEEDINGS DO NOT GET VITIATED OR VOID FOR MINOR MISTAKES OR REQUIREMENTS. IT MAY BE POINTED OUT THAT THE TRIBUNAL HAD ALLOWED THE CLAIM OF ASSESSEE ON THE GROUND THAT THE ASSESSING OFFICER HAD FAILED TO RECORD SATISFACTION AS TO WHICH L IMB OF SECTION 271(1)(C) OF THE ACT HAD NOT BEEN COMPLIED WITH BY THE RESPONDENT - ASSESSEE. 3. THE SECOND ISSUE WHICH IS RAISED IN RESPECT OF DEFECTS IN NOTICE ISSUED UNDER SECTION 274 OF THE ACT, WHICH AS PER THE REVENUE - APPLICANT IS CURABLE DEFECT. IN T HIS REGARD, RELIANCE WAS ALSO PLACED ON THE DECISION OF JURISDICTIONAL HIGH COURT IN CIT VS. SMT. KAUSHALYA REPORTED IN 216 ITR 660 (BOM), WHEREIN IT HAS BEEN HELD THAT THE DEFECTS OF NON - STRIKING OF PARTICULARS IN THE NOTICE ISSUED UNDER SECTION 274 OF TH E ACT WERE CURABLE WHEN RESPONDENT - ASSESSEE HAD KNOWLEDGE OF EXACT CHARGE OF PENALTY. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE APPLICANT TOOK US THROUGH MISCELLANEOUS APPLICATION AND POINTED OUT THAT MISTAKE WHICH HAD CREPT IN THE ASSESSMENT ORD ER AND WHILE PREPARING NOTICE UNDER SECTION 274 R.W.S. 271(1)(C) OF THE ACT WERE CURABLE DEFECTS UNDER SECTION 292B OF THE ACT. HENCE, THE HEARING OF APPEAL BE TAKEN UP ON MERITS OF THE CASE TO CONFIRM PENALTY ON THE QUANTUM ADDITIONS WHICH WERE CONFIRMED BY THE CIT(A). 5. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE RESPONDENT - ASSESSEE ON THE OTHER HAND, POINTED OUT THAT THE TRIBUNAL HAD LIMITED POWERS UNDER SECTION 254(2) OF THE ACT AND COULD ONLY RECTIFY THE MISTAKES APPARENT FROM RECORD. 3 M A NO. 81 /P U N/20 1 7 6. WE HAVE H EARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE REVENUE - APPLICANT IS AGGRIEVED BY THE ORDER OF TRIBUNAL IN HOLDING THAT THE RESPONDENT - ASSESSEE WAS NOT EXIGIBLE TO LEVY OF PENALTY FOR NON - RECORDING OF PROPER SATISFACTION WHILE INITIATING PENALTY PR OCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT. THE TRIBUNAL IN THIS REGARD, PLACED RELIANCE ON THE DECISION OF PUNE BENCH OF TRIBUNAL IN THE CASE OF KANHAIYALAL D. JAIN VS. ACIT IN ITA NOS.1201 TO 1205/PN/2014, RELATING TO ASSESSMENT YEARS 2003 - 04 TO 2007 - 08, DATED 30.11.2016 AND ALSO IN THE CASE OF NANDKISHOR TULSIDAS KATORE VS. ACIT IN ITA NOS. 2174 TO 2180/PN/2014 , RELATING TO ASSESSMENT YEARS 2002 - 03 TO 2008 - 09, ORDER DATED 14.12.2016. THE TRIBUNAL HAS HELD THAT NON - RECORDING OF SATISFACTION MAKES THE LEVY OF PENALTY BAD IN LAW WHILE DECIDING THE ISSUE. REFERENCE WAS MADE TO THE DECISION IN THE CASE OF KANHAIYALAL D. JAIN VS. ACIT (SUPRA), IN WHICH DECISION VIDE PARA 21, RELIANCE WAS ALSO PLACED UPON BY THE HONBLE BOMBAY HIGH COURT IN CIT VS. SMT. KAU SHALYA (SUPRA) AND THE DECISION IN THE SAID CASE WAS TAKEN NOTE OF VIDE PARA 24. AGAIN REFERENCE WAS MADE TO THE AFORESAID DECISION AND IT WAS NOTED THAT THE HONBLE BOMBAY HIGH COURT HAD CLEARLY LAID DOWN THE PROPOSITION THAT THE ASSESSING OFFICER HAD TO MAKE ASSESSEE FULLY AWARE OF EXACT CHARGE OF THE DEPARTMENT AGAINST HIM. APPLYING THE SAID DICTATE OF THE JURISDICTIONAL HIGH COURT, THE TRIBUNAL OBSERVED THAT WHERE IN THE ASSESSMENT ORDER WHILE RECORDING SATISFACTION FOR INITIATING PROCEEDINGS UNDER SE CTION 271(1)(C) OF THE ACT, EXACT CHARGE OF THE DEPARTMENT AGAINST THE ASSESSEE WAS NOT CLEAR, THEN THE RESPONDENT - ASSESSEE WAS NOT EXIGIBLE TO LEVY OF PENALTY. THE APPLICANT HAS FAILED TO POINT OUT THE MISTAKE, IF ANY, IN THE ORDER OF TRIBUNAL. IN THE A BSENCE OF SAME, THE PRESENT MISCELLANEOUS APPLICATION IS NOT MAINTAINABLE. 4 M A NO. 81 /P U N/20 1 7 7. THE NEXT ASPECT OF THE PRESENT MISCELLANEOUS APPLICATION IS THAT UNDER THE PROVISIONS OF SECTION 254(2) OF THE ACT, THE TRIBUNAL HAS LIMITED POWER ONLY TO CORRECT THE MISTAKES, IF ANY, WHICH ARE APPARENT FROM RECORD AND THE TRIBUNAL HAS NO POWER TO RE - HEAR THE ISSUE ON MERITS OR BY MAKING REFERENCE TO DIFFERENT DECISIONS. THE REVENUE - APPLICANT IN THE AMENDED MISCELLANEOUS APPLICATION HAS REFERRED TO VARIOUS DECISIONS WHICH WERE NOT RELIED UPON BY THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE APPLICANT WHILE ARGUING THE PRESENT APPEAL. HENCE, THE SAID RELIANCE BY WAY OF MISCELLANEOUS APPLICATION F ILED UNDER SECTION 254(2) OF THE ACT IS NOT MAINTAINABLE AND THE SAME IS DISMISSED. 8 . IN THE RESULT, MISCELLANEOUS APPLICATION OF APPLICANT IS DISMISSED. ORDER P RONOUNCED ON THIS 15 TH DAY OF MAY , 201 8 . SD/ - SD/ - ( ANI L CHATURVEDI ) ( SUSHMA CHOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 15 TH M AY , 201 8 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. THE APP LICANT ; 2. THE RESPONDENT; 3. THE CIT(A) - 2 , NASHIK ; 4. THE CIT - 2 , NASHIK ; 5. THE DR A , ITAT, PUNE; 6. GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE