Jiwan Kumar Agarwal, Kanpur v. Astt. Commissioner of Income Tax, Kanpur

ITA 148/LKW/2015 | 2002-2003
Pronouncement Date: 30-04-2015 | Result: Allowed

Appeal Details

RSA Number 14823714 RSA 2015
Assessee PAN AALPA4280H
Bench Lucknow
Appeal Number ITA 148/LKW/2015
Duration Of Justice 1 month(s) 13 day(s)
Appellant Jiwan Kumar Agarwal, Kanpur
Respondent Astt. Commissioner of Income Tax, Kanpur
Appeal Type Income Tax Appeal
Pronouncement Date 30-04-2015
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 30-04-2015
Assessment Year 2002-2003
Appeal Filed On 17-03-2015
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV JUDICIAL MEMBER AND SHRI. A. K. GARODIA ACCOUNTANT MEMBER ITA NO.148/LKW/2015 ASSESSMENT YEAR:2002-03 JIWAN KUMAR AGARWAL 7/130 SWAROOP NAGAR KANPUR V. ACIT CENTRAL CIRCLE 2 KANPUR TAN/PAN:AALPA4280H (APPELLANT) (RESPONDENT) ITA NO.149/LKW/2015 ASSESSMENT YEAR:2002-03 SMT. SHAILA AGARWAL 7/130 SWAROOP NAGAR KANPUR V. ACIT CENTRAL CIRCLE 2 KANPUR TAN/PAN:AANPA8364Q (APPELLANT) (RESPONDENT) ITA NO.150/LKW/2015 ASSESSMENT YEAR:2002-03 RAJEEV AGARWAL 7/130 SWAROOP NAGAR KANPUR V. ACIT CENTRAL CIRCLE 2 KANPUR TAN/PAN:ABKPA4140L (APPELLANT) (RESPONDENT) ITA NO.151/LKW/2015 ASSESSMENT YEAR:2002-03 SANJEEV AGARWAL 7/130 SWAROOP NAGAR KANPUR V. ACIT CENTRAL CIRCLE 2 KANPUR TAN/PAN:AANPA8363K (APPELLANT) (RESPONDENT) ITA NO.152/LKW/2015 ASSESSMENT YEAR:2007-08 :- 2 -: M/S BANARSI MISTHAN BHANDAR PVT. LTD. 26/72 BIRHANA ROAD KANPUR V. ACIT CENTRAL CIRCLE 2 KANPUR TAN/PAN:AAACB5675 (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. P. K. KAPOOR C.A. RESPONDENT BY: SHRI. HARISH GIDWANI D.R. DATE OF HEARING: 23 04 2015 DATE OF PRONOUNCEMENT: 30 04 2015 O R D E R PER SUNIL KUMAR YADAV: THESE APPEALS ARE PREFERRED BY THE DIFFERENT ASSESSEES AGAINST THE RESPECTIVE ORDERS OF THE LD. CIT(A) ON COMMON GROUNDS THAT THE LD. CIT(A) HAS LEVIED PENALTY UNDER SECTION 272A(1)(C) OF THE INCOME-TAX ACT 1961 (HEREINAFTER CALLED IN SHORT THE ACT') WITHOUT HAVING JURISDICTION TO DO THE SAME. IN SUPPORT OF HIS CONTENTION THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT AS PER PROVISIONS OF SECTION 272A OF THE ACT PENALTY FOR NON-COMPLIANCE CAN ONLY BE LEVIED BY THE JOINT DIRECTOR OR THE JOINT COMMISSIONER OF INCOME-TAX AND NOT BY THE ASSTT. COMMISSIONER OF INCOME-TAX. THEREFORE PENALTY LEVIED UNDER SECTION 272A(1)(C) OF THE ACT IS NOT SUSTAINABLE IN THE EYES OF LAW. 2. THE LD. D.R. ON THE OTHER HAND HAS PLACED RELIANCE UPON THE PENALTY ORDER WITH THE SUBMISSION THAT IT CAN BE LEVIED BY THE ASSTT. COMMISSIONER OF INCOME-TAX ALSO. 3. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS WE FIND THAT AS PER PROVISIONS OF SECTION 272A OF THE ACT PENALTY UNDER SECTION 272A(1)(C) OF THE ACT CAN ONLY BE LEVIED BY THE INCOME-TAX AUTHORITY NOT LOWER IN RANK THAN THE JOINT DIRECTOR OF :- 3 -: JOINT COMMISSIONER. IN THE INSTANT CASE PENALTY WAS LEVIED BY THE ASSTT. COMMISSIONER OF INCOME-TAX. FOR THE SAKE OF REFERENCE WE EXTRACT THE RELEVANT PROVISIONS OF SECTION 272A OF THE ACT AS UNDER:- PENALTY FOR FAILURE TO ANSWER QUESTIONS SIGN STATEMENTS FURNISH INFORMATION RETURNS OR STATEMENTS ALLOW INSPECTIONS ETC. (1) IF ANY PERSON (A) BEING LEGALLY BOUND TO STATE THE TRUTH OF ANY MATTER TOUCHING THE SUBJECT OF HIS ASSESSMENT REFUSES TO ANSWER ANY QUESTION PUT TO HIM BY AN INCOME-TAX AUTHORITY IN THE EXERCISE OF ITS POWERS UNDER THIS ACT; OR (B) REFUSES TO SIGN ANY STATEMENT MADE BY HIM IN THE COURSE OF ANY PROCEEDINGS UNDER THIS ACT WHICH AN INCOME-TAX AUTHORITY MAY LEGALLY REQUIRE HIM TO SIGN; OR (C) TO WHOM A SUMMONS IS ISSUED UNDER SUB-SECTION (1) OF SECTION 131 EITHER TO ATTEND TO GIVE EVIDENCE OR PRODUCE BOOKS OF ACCOUNT OR OTHER DOCUMENTS AT A CERTAIN PLACE AND TIME OMITS TO ATTEND OR PRODUCE BOOKS OF ACCOUNT OR DOCUMENTS AT THE PLACE OR TIME HE SHALL PAY BY WAY OF PENALTY 4A SUM OF TEN THOUSAND RUPEES FOR EACH SUCH DEFAULT OR FAILURE. (2) IF ANY PERSON FAILS (A) TO COMPLY WITH A NOTICE ISSUED UNDER SUB-SECTION (6) OF SECTION 94; OR (B) TO GIVE THE NOTICE OF DISCONTINUANCE OF HIS BUSINESS OR PROFESSION AS REQUIRED BY SUB-SECTION (3) OF SECTION 176; OR (C) TO FURNISH IN DUE TIME ANY OF THE RETURNS STATEMENTS OR PARTICULARS MENTIONED IN SECTION 133 OR SECTION 206 OR SECTION 206C OR SECTION 285B; OR (D) TO ALLOW INSPECTION OF ANY REGISTER REFERRED TO IN SECTION 134 OR OF ANY ENTRY IN SUCH REGISTER OR TO ALLOW COPIES OF SUCH REGISTER OR OF ANY ENTRY THEREIN TO BE TAKEN; OR (E) TO FURNISH THE RETURN OF INCOME WHICH HE IS REQUIRED TO FURNISH UNDER SUB-SECTION (4A) OR SUB-SECTION (4C) OF SECTION 139 OR TO FURNISH IT WITHIN THE TIME ALLOWED AND IN THE MANNER REQUIRED UNDER THOSE SUB-SECTIONS; OR (F) TO DELIVER OR CAUSE TO BE DELIVERED IN DUE TIME A COPY OF THE DECLARATION MENTIONED IN SECTION 197A; OR (G) TO FURNISH A CERTIFICATE AS REQUIRED BY SECTION 203 OR SECTION 206C; OR :- 4 -: (H) TO DEDUCT AND PAY TAX AS REQUIRED BY SUB-SECTION (2) OF SECTION 226; (I) TO FURNISH A STATEMENT AS REQUIRED BY SUB-SECTION (2C) OF SECTION 192; (J) TO DELIVER OR CAUSE TO BE DELIVERED IN DUE TIME A COPY OF THE DECLARATION REFERRED TO IN SUB-SECTION (1A) OF SECTION 206C; (K) TO DELIVER OR CAUSE TO BE DELIVERED A COPY OF THE STATEMENT WITHIN THE TIME SPECIFIED IN SUB-SECTION (3) OF SECTION 200 OR THE PROVISO TO SUB- SECTION (3) OF SECTION 206C; (L) TO DELIVER OR CAUSE TO BE DELIVERED THE 10STATEMENTS WITHIN THE TIME SPECIFIED IN SUB-SECTION (1) OF SECTION 206A HE SHALL PAY BY WAY OF PENALTY A SUM OF 3ONE HUNDRED RUPEES FOR EVERY DAY DURING WHICH THE FAILURE CONTINUES: PROVIDED THAT THE AMOUNT OF PENALTY FOR FAILURES IN RELATION TO 2A DECLARATION MENTIONED IN SECTION 197A A CERTIFICATE AS REQUIRED BY SECTION 203 AND RETURNS UNDER SECTIONS 206 AND 206C 9AND STATEMENTS UNDER SUB- SECTION (3) OF SECTION 200 OR THE PROVISO TO SUB-SECTION (3) OF SECTION 206C SHALL NOT EXCEED THE AMOUNT OF TAX DEDUCTIBLE OR COLLECTIBLE15 AS THE CASE MAY BE. (3) ANY PENALTY IMPOSABLE UNDER SUB-SECTION (1) OR SUB-SECTION (2) SHALL BE IMPOSED (A) IN A CASE WHERE THE CONTRAVENTION FAILURE OR DEFAULT IN RESPECT OF WHICH SUCH PENALTY IS IMPOSABLE OCCURS IN THE COURSE OF ANY PROCEEDING BEFORE AN INCOME-TAX AUTHORITY NOT LOWER IN RANK THAN A 1JOINT DIRECTOR OR A 1JOINT COMMISSIONER BY SUCH INCOME-TAX AUTHORITY; (B) IN A CASE FALLING UNDER CLAUSE (F) OF SUB-SECTION (2) BY THE CHIEF COMMISSIONER OR COMMISSIONER; AND (C) IN ANY OTHER CASE BY THE 1JOINT DIRECTOR OR THE 1JOINT COMMISSIONER. (4) NO ORDER UNDER THIS SECTION SHALL BE PASSED BY ANY INCOME-TAX AUTHORITY REFERRED TO IN SUB-SECTION (3) UNLESS THE PERSON ON WHOM THE PENALTY IS PROPOSED TO BE IMPOSED IS GIVEN AN OPPORTUNITY OF BEING HEARD IN THE MATTER BY SUCH AUTHORITY. IN THIS SECTION INCOME-TAX AUTHORITY INCLUDES A DIRECTOR GENERAL DIRECTOR JOINT DIRECTOR AND AN ASSISTANT DIRECTOR OR DEPUTY DIRECTOR WHILE EXERCISING THE POWERS VESTED IN A COURT UNDER THE CODE OF CIVIL PROCEDURE 1908 (5 OF 1908) WHEN TRYING A SUIT IN RESPECT OF THE MATTERS SPECIFIED IN SUB-SECTION (1) OF SECTION. :- 5 -: 4. SINCE PENALTY WAS LEVIED BY THE ASSTT. COMMISSIONER OF INCOME-TAX UNDER SECTION 272A(1)(C) OF THE ACT WHO IS NOT COMPETENT TO LEVY THE PENALTY THE PENALTY ORDERS PASSED BY HIM DESERVE TO BE QUASHED. WE THEREFORE QUASH THE PENALTY ORDERS. ACCORDINGLY WE SET ASIDE THE ORDERS OF THE LD. CIT(A) AND THE APPEALS OF THE ASSESSEES ARE ALLOWED. 5. IN THE RESULT APPEALS OF THE ASSESSEES ARE ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 30 TH APRIL 2015 JJ:2404 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR