2018 (7) TMI 738

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....e bench, told the AR of the assesse to go back to the AO to get the fact of the deposit of the subjected amount of TDS, verified. Thereupon, the then Hon'ble A.M. also pointed out the copies of the computation of total income for AY 2012-13 placed at assesse's paper book Pg no. 1-3 showing the claim of the deduction made on account of the deposit of the TDS in AY 2012-13. The Hon'ble bench thereafter, concluded the matter and declared the same as heard without whispering a single word or without even asking the parties on any of the issues, thereafter. The AR thus, remained under the impression that the matter stood heard and since being remanded back to the AO for verification hence it was not required to explain further on the various issues involved and on the various other contentions raised. However, when the order was received the AR was shocked to find that the all the issues have been dealt with and ultimately decided the appeal against the assessee but without hearing the assessee and without seeking clarifications which, appears to be required. This has resulted in a great injustice with the appellant and has prejudiced its valuable rights of being heard to it....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... of being heard and to be given a full opportunity as held in the case of Manjunatha. The said another show-cause notice was nothing but a mere reminder letter no. 142 dated 18.06.2012 (copy enclosed) and a bare perusal shows that the said letter nowhere states or talks about both concealing --- and furnishing inaccurate particulars--. The letter merely refers to the penalty proceedings earlier initiated against the assessee. It was a wrong fact stated in the penalty order at pg. 1. In fact, it is only the first notice dated 28.12.2011 was issued along with the passing of the assessment order dated 28.12.2011, which was relevant and contemplated under law for the purpose and was referred in Manjunatha (supra).The Hon'ble ITAT, on the one hand, while proceeding almost ex-parte neither looked upon the said letter dated 18.06.2012 on its own nor the parties were ever directed to place a copy thereof on record. It is humbly submitted that therefore, the Hon'ble ITAT incorrectly stated that the assessee was issued two show cause notices. It also incorrectly stated that in the second show cause notice both the limbs were mentioned. Hence, the Hon'ble ITAT committed a grave ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....or furnishing inaccurate particulars. He cannot have both the conditions and if it is so he has to say so in the notice and record a finding in the penalty order." It was submitted by the ld AR that in the present case also in the assessment order and also, in the SCN, the AO did not make clear which of the two limbs, he choose to ask the assessee but in the impugned penalty order he imposed the penalty w.r.t one aspect only. Thus, on these facts also, the impugned penalty was illegal and unjustified in view of the above decision of the Hon'ble High Court which directly applies on the present case. This being a decision of the Hon'ble Jurisdictional High Court, non-consideration thereof, amounts to a mistake apparent from record. 3. The ld DR is heard who has opposed the misc. application and submitted that the order passed by the Coordinate Bench is well speaking order and there is no mistake apparent from the record as claimed by the ld AR. 4. We have heard the rival contentions and purused the order passed by the Coordinate Bench and other material available on record. Firstly, it is incorrect on part of the ld AR to plead that proper opportunity to be heard was not given to....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....nbsp;                                              Dated 18.06.2012 To, M/s Airen Metals Pvt. Ltd. 32, Sangram Colony, C-Scheme, Jaipur Sir/Madam Sub:- Penalty Proceeding u/s 271(1)(c) of the Income-tax Act, 1961 in your case for the AY 2009-10 regarding. Penalty proceedings u/s 271(1)(c) were initiated against you for the AY 2009-10. You are hereby required to attend the office of the undersigned either personally or through your A/R duly authorized by you, along with your submission in favour of your case on 25.06.2012 at 11:00 AM if you fail to attend this office on the date given above it will be assumed that you have nothing to say in this case, and penalty shall be levied against you, presenting that you had no objection against the penalty levied. Further it may be noted that penalty proceedings are being barred by limitation on 30.06.2012." 7. However, we find that even if the said communication is taken as a reminder letter instead of....