Ehtisdah ALi,, Lucknow v. ACIT,Rg-IV,, Lucknow

ITA 200/LKW/2011 | 2003-2004
Pronouncement Date: 28-11-2014 | Result: Allowed

Appeal Details

RSA Number 20023714 RSA 2011
Assessee PAN ADZPA5826C
Bench Lucknow
Appeal Number ITA 200/LKW/2011
Duration Of Justice 3 year(s) 7 month(s) 8 day(s)
Appellant Ehtisdah ALi,, Lucknow
Respondent ACIT,Rg-IV,, Lucknow
Appeal Type Income Tax Appeal
Pronouncement Date 28-11-2014
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 28-11-2014
Date Of Final Hearing 16-09-2014
Next Hearing Date 16-09-2014
Assessment Year 2003-2004
Appeal Filed On 19-04-2011
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV JUDICIAL MEMBER AND SHRI A.K. GARODIA ACCOUNTANT MEMBER ITA NO.200/LKW/2011 ASSESSMENT YEAR:2003 - 04 A.C.I.T. RANGE - IV LUCKNOW. VS MR. EHTISHAM ALI MANGO HOUSE SYED BARA MALIHABAD LUCKNOW. PAN:ADZPA5826C (RESPONDENT) (APPELLANT) SHRI S. C. AGARWAL ADVOCATE APPELLANT BY SHRI Y. P. SRIVASTAVA D. R. RESPONDENT BY 16/09/2014 DATE OF HEARING 28 /11/2014 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA A.M. THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT(A) - II LUCKNOW DATED 13/01/2011 FOR THE ASSESSMENT YEAR 2003 - 2004. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1. THAT THE PENALTY ORDER IS UNTENABLE IN LAW AND BEYOND JURISDICTION WHICH WAS WRONGLY CONFIRMED BY THE LEARNED CIT (APPEALS). 2. THAT THE FOLLOWING TWO GROUNDS IN THE ISSUE OF NOTICE WERE NOT CONSIDERED BY THE LEARNED CIT (APPEALS): ( A ) THAT THE PENALTY ORDER IS BEYOND JURI SDICTION IN AS MUCH AS THE LEARNED ACIT DID NOT ISSUE ANY SHOW CAUSE NOTICE BEFORE LEVY OF PENALTY. ( B ) THAT THE SHOW CAUSE NOTICE DATED 28.03.2006 WAS VAGUE AND DID NOT SPECIFY ANY CHARGE AND THUS NO SHOW CAUSE 2 NOTICE COULD BE SAID TO HAVE BEEN ISSUED BEFORE LEVY OF PENALTY A MANDATORY REQUIREMENT OF LAW. 3. THAT THE SATISFACTION RECORDED BY THE LEARNED AO TO INITIATE PENALTY PROCEEDINGS FOR CONCEALMENT WAS WRONG IN AS MUCH AS IT DID NOT JUSTIFY LEVY OF PENALTY FOR CONCEALMENT AS THE AUTHORITIES HAVE FAILED TO ESTABLISH THAT THERE WAS ANY CONSCIOUS ATTEMPT BY THE ASSESSEE TO CONCEAL HIS INCOME. 4. THAT THE LEARNED ACIT PASSED THE PENALTY ORDER AND DID NOT ISSUE ANY SHOW CAUSE NOTICE BEFORE THE LEVY OF PENALTY AND THEREFORE HAD NO LEGAL AUTHORITY TO PASS ANY PENALTY ORDER. 5. THAT IT WAS WRONG ON THE PART OF THE LEARNED CIT (A) TO HOLD THAT 'IT WAS NOT MANDATORY TO ISSUE FRESH NOTICE TO THE APPELLANT' IN AS MUCH AS THE JURISDICTION WAS TRANSFERRED TO THE SAID ACIT BY THE LEARNED ADDITIONAL COMMISSIONER ON 2 0.09.2006 AND THE PENALTY ORDER WAS PASSED ON 29.09.06 WITHOUT ISSUE OF SHOW CAUSE NOTICE. 6. THAT THE ORDERS PASSED BY THE TAX AUTHORITIES ARE ARBITRARY WITHOUT GIVING REASONS AND ARRIVING ON THE FINDINGS WITHOUT CONSIDERING THE SUBMISSIONS MADE DURING THE COURSE OF THE PROCEEDINGS BY THE APPELLANT RENDERING THE ORDER LIABLE TO BE CANCELLED . 7. THAT THE APPELLANT DID NOT COMMIT ANY DEFAULT WHICH COULD JUSTIFY LEVY OF PENALTY U/S 271 (1) (C) AND THE LEARNED CIT (A) MIS - DIRECTED HIMSELF IN CONFIRMING IT. 8. THAT THE FINDINGS OF THE LEARNED CIT (A) THAT THE APPELLANT HAS CONCEALED HIS INCOME BY FURNISHING INCORRECT PARTICULARS OF INCOME IS NOT BASED ON ANY MATERIAL AND THUS IS AGAINST THE FACTS OF THE CASE. 9. THAT THE LEARNED CIT (A) ERRED IN RECORDING THE FINDINGS THAT THE CASE OF THE APPELLANT FALLS UNDER EXPLANATION 4 TO SECTION 271 (1) (C) OF THE INCOME TAX ACT 1961 WITHOUT ANY JUSTIFICATION. 10. THAT THE FINDINGS OF THE LEARNED CIT (A) ARE ERRONEOUS IN HOLDING THAT : 3 (A) THE PENALTY PROCEEDINGS HAV E CORRECTLY BEEN INITIATED BY THE APPELLANT. (B) NONE WAS ATTENDED ON BEHALF OF THE APPELLANT ON THE DATE OF HEARING NOR ANY COMPLIANCE MADE. (C) THERE IS NO REASONABLE CAUSE IN FAVOR OF THE APPELLANT FOR COMMITTING OF THE DEFAULT. 11. THAT THE LEARNED CI T (A) ERRED IN MAKING OUT THE CASE FOR ENHANCEMENT OF THE PENALTY FROM RS.25 000/ - AS LEVIED BY THE LEARNED AO TO RS.8 68 897/ - AND DID NOT PROVIDE REASONABLE OPPORTUNITY TO PUT UP THE CASE ON THIS POINT. 12. THAT THE LEARNED CIT (A) DID NOT GIVE ANY FIND INGS ON THE FOLLOWING GROUND RAISED BEFORE HIM. '(5) THAT SO - CALLED APPROVAL U/S 274(2) WAS OBTAINED WITHOUT A PRIOR SHOW CAUSE NOTICE AS PER THE REQUIREMENT OF RULES OF NATURAL JUSTICE IN AS MUCH AS THE CIVIL RIGHTS OF THE APPELLANT WERE INVOLVED THUS V IOLATING THE CODE OF CIVIL PROCEDURE. 13. THAT THE SAID SHOW CAUSE NOTICE WAS ISSUED ON 28.03.2006 BY THE LEARNED TRO RANGE - IV LUCKNOW WHEREAS THE LEARNED ACIT PASSED THE PENALTY ORDERS ON 02.11.2006 I.E. AFTER A PERIOD OF 4 MONTHS WITHOUT ISSUING ANY SHOW CAUSE NOTICE AND THE FOLLOWING GROUNDS TAKEN BEFORE THE LEARNED CIT(A) WAS NOT CONSIDERED AT ALL BY HIM. '(4) THAT THERE WAS INORDINATE DELAY BETWEEN ISSUE OF SHOW CAUSE NOTICE AND ORDER TO LEVY PENALTY RENDERING IT INVALID.' 3. LEARNED A.R. OF THE ASSESSEE HAS SUBMITTED WRITTEN SUBMISSIONS RUNNING IN FOUR PAGES BUT WE FIND THAT WHILE IMPOSING THE PENALTY IT IS NOTED BY THE ASSESSING OFFICER IN THE PENALTY ORDER THAT SHOW CAUSE NOTICE DATED 28/03/2006 FIXING THE CASE FOR HEARING ON 17/04/2006 WAS IS SUED BUT THE ASSESSEE DID NOT CARE TO COMPLY WITH THE SAID NOTICE AND NEITHER ANYBODY ATTENDED IN PERSON NOR ANY WRITTEN REPLY OR ANY APPLICATION FOR ADJOURNMENT WAS RECEIVED. THE PENALTY ORDER WAS PASSED BY THE ASSESSING OFFICER ON 29/09/2006 WITHOUT PRO VIDING ANY FURTHER OPPORTUNITY TO THE ASSESSEE. UNDER THESE FACTS IN OUR CONSIDERED OPINION SUFFICIENT OPPORTUNITY WAS NOT PROVIDED 4 BY THE ASSESSING OFFICER BEFORE IMPOSING PENALTY AND HENCE WE FEEL IT PROPER THAT THIS MATTER SHOULD GO TO THE FILE OF T HE ASSESSING OFFICER FOR DECIDING THE ISSUE AFRESH AFTER PROVIDING REASONABLE OPPORTUNITY TO THE ASSESSEE AND THEREFORE WE SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH DECISION AFTER PROVIDING RE ASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. IN THE RESULT THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 28 /11/2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R. I.T.A.T. LUCKNOW ASSTT. REGISTRAR