JAYANT V. KOTAK, MUMBAI v. ITO 18(1)(3), MUMBAI

ITA 4485/MUM/2009 | 2006-2007
Pronouncement Date: 21-05-2010 | Result: Partly Allowed

Appeal Details

RSA Number 448519914 RSA 2009
Assessee PAN AADPK6101F
Bench Mumbai
Appeal Number ITA 4485/MUM/2009
Duration Of Justice 9 month(s) 23 day(s)
Appellant JAYANT V. KOTAK, MUMBAI
Respondent ITO 18(1)(3), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 21-05-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted J
Tribunal Order Date 21-05-2010
Date Of Final Hearing 14-05-2010
Next Hearing Date 14-05-2010
Assessment Year 2006-2007
Appeal Filed On 29-07-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH J : MUMBAI BEFORE SHRI D.K. AGARWAL (JM) AND SHRI B. RAMAKOT AIAH (AM) ITA NO.4485/MUM/2009 ASSESSMENT YEAR : 2006-07 SHRI JAYANT V. KOTAK 6-93 ADARSH NAGAR 2 ND FLOOR OPP. BENGAL CHEMICALS WORLI COLONY MUMBAI-400 025. ..( APPELLANT ) P.A. NO. (AADPK 6101 F) VS. INCOME TAX OFFICER-18(1)(3) MUMBAI. ..( RESPONDENT ) APPELLANT BY : SHRI GAURANG UNADKAT RESPONDENT BY : SHRI S.M . KESHKAMAT O R D E R PER D.K. AGARWAL (JM). THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER DATED 24.3.2009 PASSED BY THE LD. CIT(A) FOR TH E ASSESSMENT YEAR 2006-07. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND FILED HIS RETURN DECLARING AN INCOME OF RS.45 240/-. ON PERUSAL OF P&L A/C. IT WAS NOTICED BY THE ASSESSING OFFICE R THAT THE ASSESSEE HAD TURNOVER OF RS.71 29 576/- HOWEVER HE HAS FAILED TO FILE THE AUDIT REPORT ON OR BEFORE THE PRESCRIBED DUE DATE . A NOTICE ITA NO.4485/M/09 A.Y:06-07 2 U/S.271B WAS ISSUED TO SHOW CAUSE AS TO WHY PENALTY U/S.271 B SHOULD NOT BE IMPOSED. IN RESPONSE IT WAS INTERALIA SUBMITTED BY THE ASSESSEE THAT THROUGH OVERSIGHT DEPARTMENT HAS CALCULATE D THE TURNOVER OF RS.71 29 576/- THIS WRONG TURNOVER HAS BEE N ARRIVED AT DUE TO WRONG ADDITION OF SHORT TERM CAPITAL GAIN AND LONG TERM CAPITAL GAIN. THE ASSESSEE AFTER RELYING ON CERTAIN DECISIONS R EQUESTED TO DROP THE PENALTY PROCEEDINGS. HOWEVER THE ASSESSING OFFICE R DID NOT ACCEPT THE ASSESSEE'S EXPLANATION AND WAS OF THE VIEW THAT THE ASSESSEE IS LIABLE TO PENALTY U/S.271B AND ACCORDINGLY HE IMPOSED PENALTY OF RS.35 648/- VIDE ORDER DATED 26.2.2008 PA SSED U/S.271B OF THE ACT. ON APPEAL THE LD. CIT(A) IN THE ABSENCE OF A NY COMPLIANCE BY THE ASSESSEE PASSED EXPARTE ORDER AND FOLLOWING THE DECISION IN MULTIPLAN INDIA LTD. 38 ITD 320 AND ESTATE OF LATE T UKOJIRAO HOLKAR VS. CWT 223 ITR 480(MP) DISMISSED THE ASSESSEE'S APPEAL. 3. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A) T HE ASSESSEE'S IS IN APPEAL BEFORE US CHALLENGING IN ALL THE GROUNDS THE VALIDITY OF THE ORDER PASSED BY THE LD. CIT(A) IN SUSTAINING THE PENAL TY IMPOSED BY THE ASSESSING OFFICER U/S.271B OF THE ACT. 4. AFTER HEARING THE RIVAL PARTIES AND PERUSING THE M ATERIAL AVAILABLE ON RECORD AND KEEPING IN VIEW THE ASSESSEE'S GR OUND NO.1.2 THAT CIT(A) ERRED IN PASSING THE ORDER EXPARTE WITHOUT GIVING SUFFICIENT ITA NO.4485/M/09 A.Y:06-07 3 OPPORTUNITY TO THE APPELLANT TO MEET THE CASE AND ALSO KEEPING IN VIEW THAT THE ORDER PASSED BY THE LD. CIT(A) IS NOT A SPEAKI NG ORDER IN ACCORDANCE WITH THE PROVISIONS OF SECTION 250(6) OF THE A CT WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE THE MATTER SHO ULD GO BACK TO THE FILE OF THE LD. CIT(A) AND ACCORDINGLY WE SET ASIDE THE ORDER PASSED BY THE LD. CIT(A) AND SEND BACK THE MATTER TO HIS FILE W HO SHALL DECIDE THE SAME AFRESH AND ACCORDING TO LAW AFTER PROVIDING REASONA BLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE GROUNDS TAKEN BY THE ASSESSEE ARE THEREFORE PARTLY ALLOWED FOR STATISTICAL PU RPOSES. 5. IN THE RESULT ASSESSEE'S APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 21.5.2010. SD/- SD/- (B. RAMAKOTAIAH) ( D.K. AGARWAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DATED: 21.5.2010. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT CONCERNED MUMBAI THE CIT(A) CONCERNED MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR ITAT MUMBAI. ITA NO.4485/M/09 A.Y:06-07 4 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 14.5.10 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 17.5.10 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 21.5.10 SR.PS/PS 7. FILE SENT TO THE BENCH CLERK 24.5.10 SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER