The DCIT, Circle-1, Kakinada v. Sri Kancherla Laxminaryana (Individual), Yanam

MA NO.192&193/VIZAG/2010 K. LAXMINARAYANA (INDV) YA NAM PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV JUDICIAL MEMBER AND SHRI BR BASKARAN ACCOUNTANT MEMBER MA NOS.192/VIZAG/2010 (ARISING OUT OF IT(SS)A NO.89/VIZ/2002) BLOCK PERIOD 1989-90 TO 1999-2000 DCIT CIRCLE-1 KAKINADA VS. SRI KANCHERLA LAXMINARAYANA (INDIVIDUAL) YANAM (APPELLANT) (RESPONDENT) GIR NO.L-229 MA NOS.193/VIZAG/2010 (ARISING OUT OF IT(SS)A NOS.90/VIZ/2002) BLOCK PERIOD 1989-90 TO 1999-2000 DCIT CIRCLE-1 KAKINADA VS. SRI KANCHERLA LAXMINARAYANA (HUF) YANAM (APPELLANT) (RESPONDENT) GIR NO.L-748 APPELLANT BY: SHRI TH. L. PETER CIT(DR) RESPONDENT BY: SHRI G.V.N. HARI CA ORDER PER SHRI B. R. BASKARAN ACCOUNTANT MEMBER: BY THESE PETITIONS THE REVENUE SEEKS RECALL OF COM MON ORDER DATED 19-05-2010 PASSED BY THIS BENCH ON THE GROUND THAT THE TRIBUNAL HAS ERRED IN OBSERVING THAT THE ASSESSING OFFICER DID NOT DIS POSE OF THE STAY APPLICATION FILED BY THE ASSESSEE. 2. THE FACTS WHICH LEAD TO THE FILING OF THESE TWO PETITIONS ARE STATED IN BRIEF. THE ASSESSING OFFICER LEVIED PENALTY UNDER SECTION 221(1) OF THE ACT IN THE HANDS OF BOTH THE ASSESSEES CITED ABOVE VID E HIS ORDER DATED 21-09- 2001. SINCE THE LEARNED CIT(A) DELETED THE PENALTY LEVIED IN BOTH THE CASES THE REVENUE PREFERRED APPEALS BEFORE ITAT AN D THE TRIBUNAL ALSO MA NO.192&193/VIZAG/2010 K. LAXMINARAYANA (INDV) YA NAM PAGE 2 OF 3 CONFIRMED THE ORDER OF LEARNED CIT(A). WHILE CONFI RMING THE ORDER OF LEARNED CIT(A) THE TRIBUNAL INTER ALIA NOTICED T HAT BOTH THE ASSESSEES HAD FILED LETTERS SEEKING STAY OF COLLECTION OF TAX AND THE ASSESSING OFFICER HAS PASSED PENALTY ORDERS WITHOUT CONSIDERING THE S AID STAY APPLICATIONS. THE TRIBUNAL ALSO OBSERVED THAT THE ASSESSEES SHOUL D HAVE BEEN GIVEN ONE MORE OPPORTUNITY. NOW THE CONTENTION OF THE REVENU E IS THAT THE ASSESSING OFFICER HAS DULY CONSIDERED THE LETTERS OF THE ASSE SSEE BEFORE PASSING THE PENALTY ORDER AND FURTHER THE ASSESSEE DID NOT REQU EST FOR ANY FURTHER OPPORTUNITY. ACCORDINGLY IT IS STATED THAT IT IS IMPROPER TO OBSERVE THAT THE PRINCIPLES OF NATURAL JUSTICE HAVE NOT BEEN MET. 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND CARE FULLY PERUSED THE ORDER OF THE TRIBUNAL. THE TRIBUNAL HAS NOTICED THAT THE SHOW CAUSE NOTICES WERE SERVED ON THE ASSESSEES ONLY ON THE DATE OF HEARING I.E. ON 14.9.2001 AND ACCORDINGLY OBSERVED THAT ONE MORE OPPORTUNITY SHOU LD HAVE BEEN GIVEN TO THE ASSESSEES. THESE ASSESSEES HAVE FILED LETTERS SEEKING STAY OF COLLECTION OF TAX PRIOR TO THE DATE OF PENALTY ORDERS. IT IS S TATED BY THE ASSESSING OFFICER IN THE PENALTY ORDER OF KACHERLA LAXMINARAY ANA THAT THE ASSESSEE HAS FILED A LETTER SIGNED BY HIS AUTHORISED REPRESENTATIVE S RI J.S.SUNDARAM CHARTERED ACCOUNTANT ON 20-09-2001 STATING THAT THE SHOW CAUSE NOTICE UNDER SECTION 221(1) WAS SERVED ON 14.9.2001 AND IT WAS ALSO REQUESTED FOR GRANT OF TIME FOR PAYMENT OF DEMAND TILL THE DI SPOSAL OF THE APPEAL FILED BY THE ASSESSEE AGAINST THE BLOCK ASSESSMENT ORDER. IT IS FURTHER STATED BY THE ASSESSING OFFICER THAT THE STAY OF COLLECTION O F TAX IS SEPARATELY REFUSED. IT IS TO BE NOTICED THAT THERE IS NO SUCH OBSERVATIO N IN THE CASE OF KACHERLA LAXMINARAYANA (HUF). 4. THUS IT CAN BE SEEN THAT NO WHERE THE ASSES SING OFFICER HAS STATED THAT HE HAS GIVEN ANY FURTHER OPPORTUNITY TO THE AS SESSEE. FURTHER IN ONLY ONE OF THE CASES IT HAS BEEN STATED BY THE ASSESSI NG OFFICER THAT THE STAY OF COLLECTION OF TAX WAS REFUSED. HOWEVER NO REASO N WAS CITED BY THE MA NO.192&193/VIZAG/2010 K. LAXMINARAYANA (INDV) YA NAM PAGE 3 OF 3 ASSESSING OFFICER FOR REFUSAL OF STAY AND THE ASSES SEE WAS ALSO NOT GIVEN ANY OPPORTUNITY OF HEARING. HOWEVER IT MAY BE NO TICED THAT THE TRIBUNAL HAS DECIDED THE ISSUE BY TAKING INTO ACCOUNT THE OR DER OF LEARNED CIT(A) THE LACK OF OPPORTUNITY THE STAY APPLICATIONS OF T HE ASSESSEE AND ALSO THE PROVISIONS OF THE ACT. IN ANY CASE WE HAVE ALREAD Y NOTICED THAT NO OPPORTUNITY OF HEARING WAS GIVEN TO THE ASSESSEES A ND FURTHER THE DECISION HAS BEEN RENDERED ON CUMULATIVE FACTORS. IN VIEW O F THE ABOVE WE ARE UNABLE TO ACCEPT THE CONTENTIONS RAISED BY THE REVE NUE IN THE MISCELLANEOUS PETITIONS AND FURTHER WE DO NOT FIND ANY ERROR IN THE ORDER OF THE TRIBUNAL FOR THE REASONS STATED ABOVE. 4. IN THE RESULT THE MISCELLANEOUS PETITIONS ARE AC CORDINGLY DISMISSED. PRONOUNCED ACCORDINGLY ON 15 TH FEBRUARY 2011. SD/- SD/- (SUNIL KUMAR YADAV) (B R BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PVV/SPS VISAKHAPATNAM DATE:15-02- 2011 COPY TO 1 DCIT CIRCLE-1 KAKINADA 2 SRI KANCHERLA LAXMINARAYANA (INDIVIDUAL) S/O VEE RAIAH D.NO.3-276 PYDIKONDALAVARI STREET YANAM 3 SRI KANCHERLA LAXMINARAYANA (HUF) S/O VEERAIAH D.NO.3-276 PYDIKONDALAVARI STREET YANAM 4 5 THE CIT RAJAHMUNDRY THE CIT(A) RAJAHMUNDRY 6 THE DR ITAT VISAKHAPATNAM. 7 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM