M/S Tirupati Mercantile Limited, ... vs Assessee

M/sTirupati Mercantile Limited v. The Asstt. CIT City Centre, 4th Floor Kanpur 63/2, The Mall, Kanpur TAN/PAN:AAACT5431B (Appellant) (Respondent)

Appellant by: None (Written submission) Respondent by: Shri. C. P. Singh, D.R. Date of hearing: 16 12 2014 Date of pronouncement: 08 01 2015

ORDER

PER SUNIL KUMAR YADAV:

These appeals are preferred by the assessee against the respective order of the ld. CIT(A) on the following grounds:-

GROUNDS IN I.T.A. No. 792/LKW/2013:

1. Ld. Commissioner of Income Tax (Appeals) has failed to appreciate the material fact put on record that certified copy of the order of the penalty u/s 271(1)(c) came to be received by appellant on 4.6.2008 and not before the said date.

2. Reliance upon the speed post received is totally unjustified since the said receipt did not bear the complete address of the appellant in as much as there is no proof of service of the penalty order dated 28.12.2001.

3. Ld. Commissioner of Income Tax (Appeals) has misdirected himself :-2-:

while not confronting the appellant with his proposal to dismiss the appeal as being out of time specified u/s 249(2) of the Act.

4. In any case and without prejudice Ld. Commissioner of Income Tax (Appeals) has failed to appreciate that penalty as levied by Ld. Assessing Officer was not sustainable under law in the facts and circumstances of the case.

GROUNDS IN I.T.A. No. 793/LKW/2013:

1. Ld. Commissioner of Income Tax (Appeals) has failed to appreciate the material fact put on record that certified copy of the order of the penalty u/s 271(1)(c) came to be received by appellant on 4.6.2008 and not before the said date.

2. Reliance upon the speed post received is totally unjustified since the said receipt did not bear the complete address of the appellant in as much as there is no proof of service of the penalty order dated 28.12.2001.

3. Ld. Commissioner of Income Tax (Appeals) .has misdirected himself while not confronting the appellant with his proposal to dismiss the appeal as being' out of time specified u/s 249(2) of the Act.

4. In any case and without prejudice Ld. Commissioner of Income Tax (Appeals) has failed to appreciate that penalty as levied by Ld. Assessing Officer was not sustainable under law in the facts and circumstances of the case.

2. These appeals were came up for hearing on 16.12.2014, but none appeared one bahalf of the assessee. The assessee, however, has filed written submissions stating therein that in quantum appeal, the Tribunal vide its order dated 28.9.2003 quashed the entire assessment after holding it to be void ab initio. When the entire assessment was quashed, penalty under section 271(1)(c) of the Act and 271(1)(b) of the Act cannot be :-3-:

levied. These facts were confronted to the ld. D.R. and the factual aspects were not disputed. In the light of these facts, where the entire assessment is quashed after holding it to be void ab initio, penalty under section 271(1)(c) and 271(1)(b) of the Act are not leviable and deserve to be deleted. We accordingly delete the penalty levied under section 271(1)(c) and 271(1)(b) of the Act after setting aside the respective order of the ld. CIT(A).

3. In the result, both the appeals of the assessee are allowed.

Order was pronounced in the open court on the date mentioned on the captioned page.

Sd/- Sd/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER

DATED:8th January, 2015 JJ:1712

Copy forwarded to: 1. Appellant 2. Respondent 3. CIT(A) 4. CIT 5. DR Assistant Registrar