Sh. Babu Lal Motawat S/o Sh. Bhanwarlal Motawat, UDAIPUR v. DCIT, UDAIPUR

ITA 33/JODH/2013 | 2008-2009
Pronouncement Date: 07-10-2013 | Result: Allowed

Appeal Details

RSA Number 3323314 RSA 2013
Assessee PAN AFGPM0658R
Bench Jodhpur
Appeal Number ITA 33/JODH/2013
Duration Of Justice 8 month(s) 15 day(s)
Appellant Sh. Babu Lal Motawat S/o Sh. Bhanwarlal Motawat, UDAIPUR
Respondent DCIT, UDAIPUR
Appeal Type Income Tax Appeal
Pronouncement Date 07-10-2013
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 07-10-2013
Date Of Final Hearing 04-10-2013
Next Hearing Date 04-10-2013
Assessment Year 2008-2009
Appeal Filed On 22-01-2013
Judgment Text
IN THE INCOME TAX APPELALTE TRIBUNAL: JODHPUR BENCH : JODHPUR BEFORE SHRI HARI OM MARATHA JUDICIAL MEMBER AND SHRI N.K. SAINI ACCOUNTANT MEMBER. ITA NO. 33/JODH/2013 (A.Y. 2008-09) SH. BABU LAL MOTAWAT VS DCIT CENTRAL CIRCLE-1 S/O. SH. BHANWAR LAL MOTAWAT UDAIPUR. 5-SHANTIVAN BEDLA ROAD UDAIPUR. PAN NO. AFGPM0658R (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. AMIT KOTHARI. DEPARTMENT BY : SH. DEEPAK SEHGAL-CIT- DR. DATE OF HEARING : 04/10/2013. DATE OF PRONOUNCEMENT : 07/10/2013. O R D E R PER HARI OM MARATHA J.M. : THIS APPEAL OF THE ASSESSEE FOR A.Y. 2008-09 IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) CENTRAL JAIPUR DATED 06/1 2/2012 AND HAS EMANATED FROM THE ORDER OF LD. DCIT CENTRAL CIRCLE -1 UDAIPUR DATED 2 13/06/2011 PASSED U/S 271(1)(C) OF THE INCOME TAX A CT 1961 (THE ACT FOR SHORT). 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT CO NSEQUENT UPON A SEARCH AND SEIZURE OPERATION CARRIED OUT AT ASSESSE ES RESIDENCE AND BUSINESS PREMISES U/S 132 OF THE ACT ON 03/09/200 8 THE ASSESSEE FILED HIS (RETURN OF INCOME [ROI]) U/S 153A AND DEC LARED INCOME OF RS. 1.40 CRORES ON THE BASIS OF SEIZED DOCUMENTS ETC. T HE RETURNED INCOME HAS BEEN ASSESSED AS SUCH AND NO ADDITION HAS BEEN MADE IN THE ORDER DATED 16/12/2010 MADE U/S 153A R.W.S. 143(3) OF THE ACT. THE A.O. HAS INITIATED PENALTY PROCEEDING U/S 271(1)(C) BECA USE THE ASSESSEE HAS NOT VOLUNTARILY DISCLOSED INCOME. A PENALTY OF RS. 47 58 600/- HAS BEEN IMPOSED VIDE ORDER DATED 13/06/2011. 2.1 AGGRIEVED THE ASSESSEE PREFERRED FIRST APPEAL AND LD. CIT(A) HAS NOT FOUND IT A FIT CASE FOR IMPOSITION OF PENALTY U /S 271(1)(C) OF THE ACT. HOWEVER HE HAS GIVEN A FINDING THAT INSTEAD IN THE GIVEN FACTS AND THE CIRCUMSTANCES OF THE CASE A PENALTY U/S 27 1 AAA OF THE ACT IS LEVIABLE AND NOT U/S 271(1)(C) FOR CONCEALMENT OF I NCOME OR FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. ACC ORDINGLY HE HAS CONFIRMED A PENALTY OF RS. 14 00 000/- U/S 271 AAA OF THE ACT. 3 AGGRIEVED AGAINST THIS ORDER DATED 06/12/2012 THE ASSESSEE HAS CAME IN SECOND APPEAL. 2.2 WE HAVE HEARD RIVAL SUBMISSIONS AND HAVE CAREFU LLY PERUSED THE ENTIRE RECORD. IT HAS BEEN ARGUED BY LD. AR THAT WI THOUT INITIATION OF A PENALTY U/S 271 AAA OF THE ACT EITHER BY THE A.O. OR THE LD. CIT(A) WHO HAVE ADMITTEDLY NOT DONE SO A PENALTY IS BAD I N LAW. THE LD. DR HAS SUPPORTED THE APPELLATE ORDER. 2.3 WE HAVE FOUND IT FOR A FACT THAT NEITHER THE A. O. NOR THE LD. CIT(A) HAS GIVEN NOTICE TO THE ASSESSEE ABOUT IMPOS ITION OF A PENALTY U/S 271 AAA OF THE ACT. THE PARAMETERS FOR IMPOSIT ION OF A PENALTY U/S 271(1)(C) AND 271 AAA OF THE ACT ARE ENTIRELY D IFFERENT AND DISTINCT. NO PENALTY CAN BE IMPOSED UPON ASSESSEE EXPARTE AND WITHOUT GIVING AN NOTICE OF SUCH A PROPOSED PENALTY . THE LAW ON THIS SUBJECT BEING ORDAIN BEING A PRINCIPLE OF AUDI ALTE RAM PERTAM (NATURAL JUSTICE) ANY VIOLATION THEREOF IS NOT SUSTAINABLE IN THE EYES OF THE LAW. THEREFORE WE HAVE TO DELETE THE IMPUGNED PENALTY O F RS. 14 LACS IMPOSED U/S 271 AAA BY LD. CIT(A). 4 3. IN THE RESULT WE ALLOW ASSESSEES APPEAL. ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH OCTOBER 2013. SD/- SD/- [N.K. SAINI] [HARI OM MARATHA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 7 TH OCTOBER 2013. VL/ COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR