SHRI BHUPENDRA R. PATEL,BHARUCH vs. THE INCOME TAX OFFICER, WARD-1, BHARUCH

IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT Before Shri C.M.GARG, Judicial Member, and Shri O.P. MEENA, Accountant Member ITA No.2839/AHD/2016/SRT Assessment Year: 2010-11 Smt Urmilaben Bhupendra Patel, Nyalkaran Villa; Behind Vrundavan Society, Zadeshwar Road, Bharuch 392001 (Appellant) P.A: No. AEUPP687OK ITO, Ward 5 1, Bharuch T Vs. Respondent ITA No.2840 /AHD/ 2016/SRT Assessment Year: 2010-11 Ns, Shri Bhupendra R Patel, Nyalkaran Villa, Behind Vrundavan Society, Zadeshwar Road, Bharuch 392001 (Appellant) P.A: No. AEUPP6881L ITO , Ward = 1 , Bharuch TI Vs. (Respondent Assessee by Shri Mukund Bakshi CA Revenue by Shri B P K Panda Sr . DR Final Date of Hearing: 10/01/2018 Date of Order: L/01/2018 HC9 LO RD ER Per Shri C M_Garg_JM: These appeals are filed by the assessee against the order of the learned CIT (Appeals)-3, Vadodara, dated 04.08.2016 Smt Urmilaben B Patel & Shri Bhupendra R Patel ITA No.2839 2840/4/2016 passed under section 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as 'the Act ) for the assessment year 2010-11. 2 In the ITA No 2839LAHDL2O16 appeal the assessee has raised the following grounds of appeal:- "(i) The Ld. CIT(A) 3, Vadodara has erred in law and in facts in holding that during the pendency of disposal of petition for waiver of penalty u/ s 271(1)(c) filed u/ s 273A of IT: Act as filed with the Ld. Pr. CIT 3, Vadodara, there is no jurisdiction of appeal with him and holding SO , the appeal is dismissed. The Ld. CIT(A) 3, Vadodara ought to have adjudicated the appeal (ii) The Ld. CIT(A) 3, Vadodara ought to have held that the appellant was not liable to any penalty u/ s 271(1)(c) in respect of the income of Rs. 67,38,818/- offered as capital gain voluntarily and sUo moto, prior to any deduction by the Ld. Assessing Officer (iii) The Ld. CIT(A) 3, Vadodara, ought to have held that the appellant was not liable to any penalty u/ s 271(1)(c) in respect of the addition made of an amount of Rs 3,60,000/ being made on withdrawal of deduction u/ s 54EC and that making claim of such deduction/ exemption being bonafide did not amount to furnishing of inaccurate particulars. (iv) The Ld. CIT(A) 3 ought to have cancelled the penalty of Rs. 14,62,357/ levied u/ s 271(1)(c) of the IT: Act. 3 In the ITA No 2840LAHDL2C16 appeal the assessee has raised the following grounds of appeal: - "(i) The Ld. CIT(A) 3, Vadodara has erred in law and in facts in holding that during the pendency of disposal of petition for waiver of penalty u/ s 271(1)(c) filed u/ s 273A 3 Smt Urmilaben B Patel & Shri Bhupendra R Patel ITA No.2839, 2840/4/2016 of IT Act as filed with the Ld. Pr. CIT 3, Vadodara, there is no jurisdiction of appeal with him and holding SO , the appeal is dismissed The Ld CITIA) 3, Vadodara ought to have adjudicated the appeal (ii) The Ld. CIT(A) 3, Vadodara ought to have held that the appellant was not liable to any penalty u/ s 271(1)(c) in respect of the income of Rs. 1,40,03,378/ offered as capital gain voluntarily and sUo moto, prior to any deduction by the Ld. Assessing Officer (iii) The Ld. CIT(A) 3, Vadodara, ought to have held that the appellant was not liable to any penalty u/ s 271(1)c) in respect of the addition made of an amount of Rs 15,30,000/- being made on withdrawal of deduction u/ s 54EC and that making claim of such deduction/ exemption being bonafide did not amount to furnishing of inaccurate particulars: (iv) The Ld. CIT(A) 3 ought to have cancelled the penalty of Rs. 32,00,126/- levied u/ s 271(1)(c) of the IT: Act. 4 As agreed by both the parties that the facts and circumstance of both the case are quite identical and similar therefore the case of Smt Urmilaben Bhupendra Patel may kindly be considered as lead case. First of all we may point out that from para 5 of the impugned order of Ld. CIT (A) it is clear that the appeal was dismissed by him observing that petition u/s 273A(1) dated 04/07/2011 has been filed by the assessee to the CIT-III, Baroda and as per clause (ii) of said section not withstanding anything contained in the Act, the Commissioner may, in his discussion, whether on his own motion or otherwise reduce or waive the amount of penalty imposed or imposable under clause (iii) of sub-section (1) of section 271 of Smt Urmilaben B Patel & Shri Bhupendra R Patel ITA No.2839, 2840/4/2016 the Act and said petition is still pending before CIT III , Baroda. On being asked by the Bench both the parties, in concurrence, submitted that the said petition of the assessee could not be disposed of within prescribed time limit hence, the same has become in-fructuous and appeal of the assessee filed before Ld_ CIT (A) may kindly be directed to be re- adjudicated. 5 From the relevant operative part of the first appellate order para 5 it is clear that the Ld_ CIT (A) has dismissed the appeal on account of pendency of petition u/s 2734(1) of the Act which has become time barred and the CIT III, Baroda i.e Competent Authority cannot pass any order on the said petition_ The appeal of the assessee has not been adjudicated on merits therefore , in our considered opinion the case deserves to be restored to the file of Ld_ CIT (A) to the first appellate stage and we restore the same to the file of first appellate authority for adjudication on merits. We also direct that the Ld, CIT (A) shall provide opportunity of being heard to the assessee and decide the appeal as per provisions of the Act. Accordingly grounds of the assessee are allowed for statistical purposes. 6_ Since facts and circumstance of both the cases are identical and similar hence, our conclusion drawn in ITA No 2839/AHD/2016/SRT, in the earlier part of this order, would apply mutatis mutandis to the another appeal ITA No 5 Smt Urmilaben B Patel & Shri Bhupendra R Patel ITA No.2839 2840/4/2016 2840/AHD/ 2016 /SRT and consequently the same is also restored to the file of Ld. CIT (A) for adjudication on merits In the result, both appeal of the assessee are allowed for statistical purposes. Order pronounced in the open court on 1) /01/2018 S7/ (O.P. Meena) (C.M?Garg) JUDICIAL MEMBER ACCOUNTANT MEMBER f7iv /Dated : [) MJanuary, 2018 Nhanu/LDC Copy to: Assessee/AO/ Pr . CIT / CIT (A)/ITAT (DR) / Guard file. By order orlihk Sr. Private Secretary ITAT, Surat Bench, Surat TFFFWR arr <7" ~^ 73o1ng TTT 67