ACIT, Hyderabad v. Sri K Anil Kumar, Hyderabad

ITA 1334/HYD/2010 | 2005-2006
Pronouncement Date: 06-01-2011 | Result: Partly Allowed

Appeal Details

RSA Number 133422514 RSA 2010
Assessee PAN AGTPK6001G
Bench Hyderabad
Appeal Number ITA 1334/HYD/2010
Duration Of Justice 2 month(s) 15 day(s)
Appellant ACIT, Hyderabad
Respondent Sri K Anil Kumar, Hyderabad
Appeal Type Income Tax Appeal
Pronouncement Date 06-01-2011
Appeal Filed By Department
Order Result Partly Allowed
Bench Allotted B
Tribunal Order Date 06-01-2011
Assessment Year 2005-2006
Appeal Filed On 22-10-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B' HYDERABAD BEFORE SHRI G.C.GUPTA VICE PRESIDENT AND SHRI CHANDRA POOJARI ACCOUNTANT MEMBER ITA NO.1334/HYD/10 : ASSTT . YEAR 2005-06 ASST. COMMISSIONER OF INCOME- TAX CIRCLE-16(2) HYDERABAD V/S. SHRI K.ANIL KUMAR HYDERABAD ( PAN AGTPK 6001 G ) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI AMLAN TRIPATHI RESPONDENT BY : NONE O R D E R PER CHANDRA POOJARI ACCOUNTANT MEMBER: THIS APPEAL BY THE REVENUE FOR THE ASSESSMENT YEAR 200 5-06 IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCO ME- TAX(APPEALS)-V HYDERABAD DATED 10.8.2010. 2. AT THE OUTSET WE MAY NOTE THAT NONE APPEARED ON BEHALF OF THE ASSESSEE AT THE TIME OF HEARING ON THIS APPEAL OF TH E REVENUE ON 6.1.2011. NOT EVEN AN ADJOURNMENT PETITION HAS BEEN RECEIVED FROM THE ASSESSEE. IN THE CIRCUMSTANCES WE PROCEED TO DISPOSE OFF THI S APPEAL EX-PARTE QUA THE ASSESSEE- ON THE BASIS OF THE MATERIAL ON RECORD AND THE SUBMISSIONS OF THE LEARNED DEPARTMENTAL REPRESENTA TIVE. 3. WE MAY NOTE IN THE FIRST PLACE THAT BY THE IMP UGNED ORDER DATED 10.8.2010 THE CIT(A) HAS DECIDED APPEALS OF T HE ASSESSEE IN RELATION TO TWO PENALTIES VIZ. UNDER S.271D AND 271 E OF THE ACT. HOWEVER THE REVENUE HAS FILED ONLY ONE APPEAL BEFORE US WITH TWO SETS ITANO.1334/HYD/10 SHRI K.ANIL KUMAR HYDERABAD 2 OF GROUNDS OF APPEAL ONE IN THE CONTEXT OF DIRECTIONS WITH REGARD TO CANCELLATION OF PENALTY UNDER S.271D AND THE OTHER IN THE CONTEXT OF DIRECTION WITH REGARD TO PENALTY UNDER S.271E OF THE ACT. IF THE DEPARTMENT IS AGGRIEVED BY THE DIRECTIONS OF THE CIT(A ) IN THE CONTEXT OF BOTH THE PENALTIES IT OUGHT TO HAVE FILED TWO SEPARA TE APPEALS IN THE CONTEXT OF EACH OF THE PENALTIES UNDER S.271D AND S.2 71E OF THE ACT. SINCE ONLY ONE APPEAL HAS BEEN PREFERRED BY THE REVEN UE IN THIS CASE WE TAKE THE PRESENT APPEAL OF THE REVENUE AS IF IT IS AGAINST THE DIRECTIONS OF THE CIT(A) WITH REGARD TO PENALTY UNDER S.271D OF THE ACT AND PROCEED TO DISPOSE OFF THE SAME ACCORDINGLY. 4. GROUNDS OF APPEAL OF THE REVENUE ARE AS UNDER- '1. THE ORDER OF CIT(A)'S ERRONEOUS IN LAW 2. THE LEARNED CIT(A) AGREED IN PRINCIPLE WITH TH E ASSESSEE'S VERSION AND DIRECTED TO CANCEL THE PENALTY U/S. 271 D WITHOUT REMANDING THE MATTER AS REQUIRED UNDER RULE 46A OF INCOME TAX RULES WHEN FRESH EVIDENCE WAS PRODUCE D. ' 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE RELYI NG ON THE PENALTY ORDER PASSED BY THE ASSESSING OFFICER SUBMITTED TH AT THE CIT(A) WAS NOT JUSTIFIED IN ENTERTAINING THE FRESH EVIDENCE FI LED BY THE ASSESSEE BEFORE HIM IN THE COURSE OF APPELLATE PROCEEDINGS WITH OUT GIVING DUE OPPORTUNITY TO THE ASSESSING OFFICER TO OFFER HIS COMMENTS IN RELATION TO THE SAME AND DIRECTING THE ASSESSING OFFICER ON THE BASIS O F SUCH EVIDENCE FILED BY THE ASSESSEE TO CANCEL THE PENALTY IMPOSE D BY THE ASSESSING OFFICER. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL ON RECORD. THE ONLY GRIEVANCE OF THE REVENUE IS AGAINST THE CANCELLATIO N OF PENALTIES ITANO.1334/HYD/10 SHRI K.ANIL KUMAR HYDERABAD 3 LEVIED UNDER S.271D OF THE INCOME-TAX TAX ACT BY THE CIT(A) BASED ON THE FRESH EVIDENCE ADDUCED BY THE ASSESSEE DURING THE COURSE OF APPELLATE PROCEEDINGS WITHOUT CALLING ANY REMAND REPO RT FROM THE ASSESSING OFFICER IN THE LIGHT OF SUCH FRESH EVIDENCE. ON A CONSIDERATION OF THE SPECIFIC ARGUMENTS OF THE ASSESSEE BEFORE HIM DULY EXTRACTING THE SAME ON PAGES 2 AND 3 OF HIS ORDER THE CIT(A) OBSERVE D THAT THE INFORMATION PUT FORTH BY THE ASSESSEE IN THOSE ARGUMENTS WAS NOT AVAILABLE BEFORE THE ASSESSING OFFICER. HE ACCORDINGLY ACCEP TED THE CONTENTION OF THE ASSESSEE IN PRINCIPLE THAT DRAWINGS AND DEPOSITS FROM AN INDIVIDUAL'S PROPRIETARY CONCERN PERTAINING TO DAY -TO-DAY BUSINESS DO NOT COME WITHIN THE PURVIEW OF LOANS AND DEPOSITS. HE A CCORDINGLY DIRECTED THE ASSESSING OFFICER TO VERIFY THE CONTENTION OF THE ASSESSEE WITH RESPECT TO HIS ACCOUNT AND TO THE EXTENT THAT THESE TRANSACTIONS REFLECT THE BUSINESS TRANSACTIONS OF HIS PROPRIETARY CONCER N THEY WOULD NOT ATTRACT S.269SS AND 269T OF THE ACT. HE ACCORDINGLY DIRECTED THE ASSESSING OFFICER TO CANCEL THE PENALTIES UNDER S.271D AND 271E OF THE ACT TO THE EXTENT INDICATED ABOVE AFTER DUE VERIFICA TION OF THE MATTER AS DISCUSSED IN HIS ORDER. THERE WAS CLEAR VIOLATION OF RUL E 46A OF THE INCOME-TAX RULES INSOFAR AS THE CIT(A) HAS PROCEEDED TO DECIDE THE APPEAL BEFORE HIM BASED ON THE FRESH EVIDENCE/INFORMAT ION BROUGHT TO HIS NOTICE BY THE ASSESSEE WITHOUT GIVING OPPORTUNITY TO TH E ASSESSING OFFICER TO EXAMINE THE SAME AND OFFER HIS COMMENTS THER EON. WE ACCORDINGLY SET ASIDE THE IMPUGNED ORDER OF THE CIT(A) INSOFAR AS IT RELATES TO PENALTY UNDER S.271D IS CONCERNED AND RESTO RE THE MATTER TO THE FILE OF THE CIT(A) WITH A DIRECTION TO CALL FOR A REMAND REPORT FROM THE ASSESSING OFFICER IN THE LIGHT OF THE FRESH EVIDENCE/INFOR MATION BROUGHT TO HIS NOTICE BY THE ASSESSEE DURING THE COURSE OF APPELLATE P ROCEEDINGS AND THEN DECIDE THE APPEAL AFRESH IN ACCORDANCE WITH LA W AND AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. ITANO.1334/HYD/10 SHRI K.ANIL KUMAR HYDERABAD 4 5. IN THE RESULT APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 6.1.2011 SD/- SD/- (G.C.GUPTA) (CHANDRA POOJARI) VICE PRESIDENT ACCOUNTANT MEMBER DT/- 6TH JANUARY 2011 COPY FORWARDED TO: 1. SHRI K.ANIL KUMAR DIRECTOR M/S. MINOPHARM LABOR ATORIES (P) LTD. 105 B-BLOCK USHA ENCLAVE NAVODAYA NAGAR SRINAGAR C OLONY HYDERABAD 2. ASST. COMMISSIONER OF INCOME-TAX CIRCLE-16(2) HYDE RABAD 3. COMMISSIONER OF INCOME-TAX(APPEALS)-V HYDERABAD. 4. COMMISSIONER OF INCOME-TAX IV HYDERABAD 5. THE DEPARTMENTAL REPRESENTATIVE ITAT HYDERABAD. B.V.S