CIT (A) cannot pass the order without adjudicating on the plea of the Assessee

Ashima Dyecot Ltd. Vs. DCIT (ITAT Ahmedabad)- We have carefully gone through the orders of authorities below and perused the material available on record. It is pertinent to note that in para 3.1 of the impugned order, the Learned Commissioner of Income Tax (Appeals) noted the aforesaid plea of the assessee but has not adjudicated the same. In these circumstances, we find considerable force in the submission of the ld.D.R. We accordingly set aside the impugned order of Learned Commissioner of Income Tax (Appeals) and restore the same to the file of A.O. with the direction that the Learned Commissioner of Income Tax (Appeals) will re-adjudicate the appeal of the assessee afresh including the plea raised before him which is noted in para 3.1 & 3.2 of the impugned order after giving opportunity of being heard to both the sides.

INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD

I.T.A. No. 1909/Ahd/2009

Assessment Year: 2003- 04

Ashima Dye cot Ltd.

Vs.

The DCIT

Date of Pronouncement : 27/12/2011

O R D E R

PER SHRI MUKUL Kr. SHRAWAT, JUDICIAL MEMBER:

This is an appeal at the behest of the Assessee which has emanated from the order of Learned CIT(Appeals)-VI, Ahmedabad dated 26/02/2009 passed for A.Y. 2003-04. The assessee has challenged the levy of penalty u/s.271(1)(c) of the I.T.Act of Rs. 16,50,000/- which was confirmed by the Learned CIT(Appeals).

2. Facts in brief as emerged from the corresponding assessment order passed u/s.143(3) of the I.T. Act, 1961 dated 31/01/2006 and the penalty order passed u/s.271(1)(c) of the I.T.Act, 1961 dated 31/03/2008 were that the addition in respect of write off of Rs. 44,89,898/- was made pertaining to sundry parties and that was the reason for initiation of penalty proceedings. That dis allowance in quantum proceeding was challenged before the Tribunal and Respected Co-ordinate Bench “C” ITAT Ahmedabad vide ITA No. 798/Ahd/2007 for A.Y. 2003- 04 titled as “Ashima Dye cot Ltd. Ahmedabad Vs. Asst. CIT, Ahmedabad” vide order dated 06/11/2009 has restored the matter to the file of the Assessing Officer with certain directions; relevant paragraph No.4 is reproduced below:-

“4. We have carefully gone through the orders of authorities below and perused the material available on record. It is pertinent to note that in para 3.1 of the impugned order, the Learned Commissioner of Income Tax (Appeals) noted the aforesaid plea of the assessee but has not adjudicated the same. In these circumstances, we find considerable force in the submission of the ld.D.R. We accordingly set aside the impugned order of Learned Commissioner of Income Tax (Appeals) and restore the same to the file of A.O. with the direction that the Learned Commissioner of Income Tax (Appeals) will re-adjudicate the appeal of the assessee afresh including the plea raised before him which is noted in para 3.1 & 3.2 of the impugned order after giving opportunity of being heard to both the sides.”

3. We have heard the submissions of both the sides and in the light of the concession granted by them, we hereby restore the issue of penalty u/s.271(1)(c) of the I.T.Act, back to the file of the Assessing Officer to re-adjudicate de novo as per the outcome of the assessment proceedings afresh as per law. We hold accordingly. Ground raised by the assessee is therefore allowed but for statistical purposes.

4. In the result, assessee’s appeal is allowed but for statistical purposes.

This Order is pronounced in open Court on 27/12/2011