ITO, JODHPUR v. Shri Jawahar Lal Choudhary, JODHPUR

ITA 480/JODH/2013 | 2005-2006
Pronouncement Date: 24-10-2013 | Result: Dismissed

Appeal Details

RSA Number 48023314 RSA 2013
Assessee PAN ACSPC4682Q
Bench Jodhpur
Appeal Number ITA 480/JODH/2013
Duration Of Justice 13 day(s)
Appellant ITO, JODHPUR
Respondent Shri Jawahar Lal Choudhary, JODHPUR
Appeal Type Income Tax Appeal
Pronouncement Date 24-10-2013
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 24-10-2013
Assessment Year 2005-2006
Appeal Filed On 11-10-2013
Judgment Text
IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENC H : JODHPUR BEFORE SHRI HARI OM MARATHA JUDICIAL MEMBER AND SHRI N.K. SAINI ACCOUNTANT MEMBER. ITA NO.479 & 480/JODH/2013 (A.YS. 2003-04 & 2005-06) ITO VS. SHRI JAWAHAR LAL CHOUDHARY WARD-1(4) 62 LAXMI NAGAR VIHAR JODHPUR. JODHPUR. PAN NO. ACSPC 4682 Q (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI AMIT KOTHARI DEPARTMENT BY : SHRI N.A. JOSHI- D.R. DATE OF HEARING : 24/10/2013. DATE OF PRONOUNCEMENT : 24/10/2013. O R D E R PER N.K.SAINI A.M THESE TWO APPEALS BY THE DEPARTMENT ARE DIRECTED A GAINST THE SEPARATE ORDERS EACH DATED 14/08/2013 OF LD. CIT (A ) JODHPUR. THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. TH E COMMON GROUNDS HAVE BEEN RAISED IN THESE APPEALS ARE AS UNDER: 2 1. THE CIT(A) HAS ERRED IN HOLDING THAT THE PENALT Y ORDER HAS BECOME INFRUCTUOUS IGNORING THE FACT THAT THE MATTER HAS N OT BEEN FINALIZED AND APPEAL U/S 260A OF THE DEPARTMENT AGAINST THE O RDER OF THE ITAT IS PENDING BEFORE THE HIGH COURT. 2. THE APPELLANT CRAVES LEAVE TO ADD AMEND OR ALT ER ANY OR ALL THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF APPEAL I S FINALLY HEARD FOR DISPOSAL. 2. DURING THE COURSE OF HEARING LEARNED COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET STATED THAT THE ASSESSMENT ORDER O N THE BASIS OF WHICH THESE PENALTIES WERE LEVIED BY THE ASSESSING OFFICE R HAS BEEN QUASHED BY THIS BENCH OF THE ITAT IN ITA NO. 94 & 95/JU/2010 F OR THE A.Y. 2003-04 & 2005-06 RESPECTIVELY VIDE ORDER DATED 30/11/2012 IN ASSESSEES OWN CASE THEREFORE THE LEARNED CIT(A) WAS JUSTIFIED IN DELE TING THE PENALTY. 3. LEARNED D.R. ALTHOUGH SUPPORTED THE ORDER OF THE ASSESSING OFFICER BUT COULD NOT CONTROVERT THE AFORESAID CONTENTION O F THE LEARNED COUNSEL FOR THE ASSESSEE. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PAR TIES. IN THE PRESENT CASE IT IS AN ADMITTED FACT THAT THE ASSES SMENT COMPLETED UNDER SECTION 147/148/143(3) OF THE I.T. ACT 1961 (HEREI NAFTER REFERRED TO AS ACT IN SHORT) BY THE ASSESSING OFFICER ON 11/12/ 2009 WHEREIN PENALTY PROCEEDINGS WERE INITIATED AND ULTIMATELY PENALTIES UNDER SECTION 271(1)(C) OF THE ACT WERE LEVIED BY THE ASSESSING O FFICER VIDE SEPARATE PENALTY ORDERS UNDER SECTION 271(1)(C) AND 274 OF T HE ACT PASSED ON 3 27/03/2012. WHEN THE MATTER WAS TAKEN UP BY THE LE ARNED CIT(A) THE ASSESSEE INFORMED VIDE LETTER DATED 08/08/2013 THAT THE QUANTUM APPEALS HAD BEEN DECIDED BY THE ITAT AND THE ASSESS MENT ORDERS WERE QUASHED VIDE ORDER DATED 30/11/2012. LEARNED CIT(A ) AFTER CONSIDERING THE SAID ORDER ANNULLED THE PENALTY ORDERS. NOW THE DEPARTMENT IS N APPEAL. 5. IN THE PRESENT CASE IT IS AN ADMITTED FACT THAT T HIS BENCH OF THE ITAT VIDE ORDER DATED 30/11/2012 IN ASSESSEES OWN CASE IN ITA NO. 94 & 95/JU/2010 QUASHED THE ASSESSMENT ORDERS PASSED BY THE ASSESSING OFFICER. THE SAID ORDERS WERE THE BASIS FOR LEVYIN G THE IMPUGNED PENALTIES. PRESENTLY NO ADDITION REMAINS AFTER QU ASHING THE ASSESSMENT ORDERS PASSED BY THE ASSESSING OFFICER. THEREFORE PENALTY WAS NOT LEVIABLE IN VIEW OF THE RATIO LAID DOWN BY THE HON' BLE SUPREME COURT IN THE CASE OF K.C. BUILDERS AND ANOTHER VS. ACIT REPORTED IN (200 4) 265 ITR 562 WHEREIN IT HAS BEEN HELD AS UNDER:- WHERE THE ADDITIONS MADE IN THE ASSESSMENT ORDER O N THE BASIS OF WHICH PENALTY FOR CONCEALMENT IS LEVIED ARE DELETE D THERE REMAINS NO BASIS AT ALL FOR LEVYING PENALTY FOR CONCEALMENT AN D THEREFORE IN SUCH A CASE NO PENALTY CAN SURVIVE AND THE PENALTY IS LI ABLE TO BE CANCELLED. ORDINARILY PENALTY CANNOT STAND IF THE ASSESSMENT ITSELF IS SET ASIDE. 6 . WE THEREFORE CONSIDERING THE TOTALITY OF THE FA CTS AS DISCUSSED HEREINABOVE DO NOT SEE ANY MERIT IN THESE APPEALS BY THE DEPARTMENT. 4 7. IN THE RESULT APPEALS ARE DISMISSED. (ORDER PRONOUNCED IN THE COURT ON 24 TH OCTOBER 2013). SD/- SD/- (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 24 TH OCTOBER 2013. VR/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD.CIT 4. THE CIT(A) 5. THE D.R ASSISTANT REGISTRAR ITAT JODHPUR.