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2015 (12) TMI 27 - ITAT AHMEDABAD

Penalty u/s.271(1)(c) - whether barred by limitation - whether the issue of limitation was not dealt by the ld. CIT(A) - recalling the order - Held that:- From the order of the CIT(A), it transpires that the ld.CIT(A) stated that the assessee was unable to substantiate this ground of facts without mentioning the relevant facts of the case. Hence, there is merit into the contention of assessee that order of ld. CIT(A) is nonspeaking on this issue. Further, it was observed by ld. CIT(A) that in su .....

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llate authority is required to give its finding on the judgments as relied by counsel merely stating that the decisions relied are distinguishable on facts would not be sufficient. Under these facts, we do not find any merit into the application moved by the Revenue. Moreover, the revenue has not pointed out any mistake apparent from the record. The ground taken for recalling the order is that the order of the Tribunal is perverse and contrary to the facts on record. The grounds as taken in the .....

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. 3462/Ahd/2010, for Assessment Years 2003-04. 2. Ld. Sr. D.R. reiterated the submissions as are made in the application. On the contrary, ld. Counsel for the assessee, Shri Tushar Hemani opposed the submissions and submitted that the entire application is ill founded and is against the settled position of law. Ld. Counsel submitted that application deserves to be dismissed with exemplary cost. Before the ld. CIT(A), it was submitted that various judicial pronouncements were relied, which were n .....

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tions and perused the material on record. We find that ld. Sr. D.R. has reiterated the submissions as are made in the Miscellaneous Application. For the sake of clarity, the relevant contents in para 2 & 3 of the application of Revenue are reproduced as under: "2. In this respect, there is a need to file a miscellaneous Application before the Hon'ble ITAT with respect to the factual mistake in the order of the Hon'ble ITAT as pointed out in above referred report. On going throug .....

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the ld. CIT (A) has referred to the decision of the Hon'ble Delhi High court in the case of smt. Santosh Sharma 311 ITR 353, in that decision of the Apex Court in the case of Dilip N Shroff 291 ITR 519 has already been discussed. Thus, the finding of the Hon'ble ITAT that the decision of the Apex Court was not considered is not correct. As regards the decision of Navjivan Oil mills 252 TIR 417, the Ld. CIT (A) has in page -10 clearly stated that it is not a case of pure estimate but an e .....

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d that before the Ld. CIT(A) the assessee has raised one of the grounds, ie. Penalty being barred by limitation. This ground has not been decided by the Ld. CIT(A) in his order" Thus contrary to the finding of the Ld. CIT(A) in page-8 of his order where he has stated as follows:- "As far as limitation is concerned, the assessee has not been able to substantiate his ground of appeal by facts, and therefore the ground of appeal is dismissed'. Thus, the order of the ITAT is perverse a .....

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lty being without jurisdiction and totally uncalled for, deserves to be quashed. 2 The Ld. AO has erred in law and on facts in levying penalty on addition which were made in original assessment order which was subsequently cancelled u/s 263 of the Act and more so over the proceedings u/s 263 was also quashed by the Hon'ble ITAT. Accordingly, the ld. AO has erred in law and on facts in levying of penalty on such quantum which at all are not survived at appellate authority. 3 In any case, the .....

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xplanations and information submitted by the appellant from time to time which ought to have been considered before passing the impugned order." From the ground no.3, it is evident that the assessee had raised specific grounds with regard to penalty being barred by limitation. While disposing of the appeal, ld. CIT(A) in para 3 stated as under: "3. All grounds in appeal are against levy of penalty of ₹ 20,01,538/- u/s.271(1)(c) of the Act." This Tribunal vide order dated 28. .....

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