TMI Blog2013 (12) TMI 1674X X X X Extracts X X X X X X X X Extracts X X X X ..... n facts in assuming jurisdiction u/s 263 is not sustainable on various legal and factual grounds. 4. That the appellant craves the leave to add, amend, modify, delete any of the grounds of appeal before or at the time of hearing and all the above grounds are without prejudice to each other. 2.1 Before we proceed with the adjudication of appeal, it is very crucial to dwell upon the unbecoming conduct of the 'D' Bench in-charge CIT (DR) Shri D.K. Mishra. When the Bench set for hearing at 10.30AM on 20-11-2013, to our surprise, none of the DR was present in the courtroom. It may be worthwhile to mention that about 33 appeals were fixed for hearing. With the current pendency an adjournment takes about 4 to 5 months' period for fixation of any appeal for next hearing in normal course. 2.2 Thus the situation before us as it stood, neither any DR was present in the courtroom nor any application for adjournment from the revenue's side. We could not have allowed to crash the Bench, therefore, in public interest and interest of justice, Bench continued first with the adjournment applications filed by the assessees and thereafter to proceed with further hearing of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee's counsel will counter the case laws which are not being given, nor properly represented and cited. It will not be possible to allow him time to file list, gist and citations of case laws subsequent to hearing which are neither heard by us nor put up to assessee for reply thereon. 2.9 At this juncture Shri Mishra in a malicious and contemptuous manner alleged that the Bench is hurrying the justice and burying the justice . Such type of unprovoked utterances from a Commissioner of Income Tax, who is the D Bench incharge officer from the Revenue's side came as a shock to the Bench and cannot be taken lightly. It appears that Mr. Mishra is not aware of his responsibilities, court discipline, procedure and proper court mannerism. His accusation on the Bench that it was hurrying justice and burying the justice is totally irresponsible, contemptuous and malicious allegation and totally against the glaring facts and proceedings which happened in the open court. 2.10 Out of 33 appeals that were listed, the Bench had granted adjournments in 31 cases mainly at the request of the ld. D.R., though the half heartedly written adjournments were filed by the department at a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto the Chamber of Sr. Member without asking permission and threatened that the Bench has insulted him and that he is going to lodge complaint. 2.15 In order to pacify, he was offered to sit and have a cup of tea which the Members of the Bench were sharing. He did not show any response to this kind gesture being extended by the Members of the Bench. Looking at his hostile demeanour he was told that it was not permitted to enter in the Chamber of the Judges without intimation and hurl such threats of complaint to intimidate the bench. In our view his over all actions, behaviour and utterances amount to contempt of court. Any party to the litigation has no authority to enter the Judge's room without permissions and endeavour to intimidate and put up such threats. 2.16 In view of the entirety of facts and circumstances we have no hesitation but to impose costs of Rs. One thousand on the delinquent CIT (DR) Shri D.K. Mishra which should be deducted from his salary. The Registry is directed to forward the copies of this order to CIT(DR)-I, CCIT In-charge; Chairman CBDT for record purpose and take appropriate action including placing the observations in his service record at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iation in A.Y. 2006-07 also, assessee claimed the same rate which was disallowed by assessing officer. The assessing officer disallowed the same following A.Y. 2005-06 and initiated the penalty proceedings in AY 2006-07 also. The assessee filed reply to the penalty proceedings in response to show cause notice dated 11-5-2009, pleading that depreciation @ 40% was claimed under bona fide belief that C.T. scan machine amounted to magnetic imagining system. The bona fide belief was based on its interpretation of the equipment and its professional use which were purely medico technical terms. The assessee's reply was supported by various case laws which are mentioned therein. Copy of the reply is placed at pages 7-9 of the paper book. Assessing officer in AY 2006-07 dropped the penalty proceeding by a short order which is as under: Penalty proceedings initiated u/s 271(1)(c) are hereby dropped. 3.2 CIT invoked power u/s 263 of the Act and was of the view that order was erroneous and prejudicial to the interests of revenue. Assessee filed detailed reply to 263 notice, rejecting the same and relying on Delhi High Court judgment in the case of CIT v. Toyota Motor Corpn. [2008] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was imposed in preceding year will not suggest that automatically the penalty will be levied in succeeding year as the penalty is not automatic and depends upon the facts and satisfaction of the assessing officer in that year. (vi) Reliance is placed on following judgment for the proposition that merely because the order was not elaborate it cannot be held that the same was erroneous or was passed without application of mind: - CIT v. Design Automation Engineers (Bombay) (P.) Ltd. [2010] 323 ITR 632/[2009] 177 Taxman 9 (Bom.) - Manish Kumar v. CIT [2012] 134 ITD 27/[2011] 16 taxmann.com 212 (Indore) (vii) It is evident that assessing officer passed the penalty order after perusing the assessee's explanation and completing the statutory process in this behalf. Therefore, it cannot be held that there was lack of inquiry. Consequently, the order passed by the assessing officer cannot be held to be erroneous and prejudicial to the interest of revenue resorting to sec. 263 as held by CIT v. Sunbeam Auto Ltd. [2011] 332 ITR 167/[2010] 189 Taxman 436 (Delhi) and Vodafone Essar South Ltd. v. CIT [2012] 51 SOT 57 (URO)/[2011] 12 taxmann.com 233 (Delhi). (viii) It cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dropping the penalty proceedings is a possible, plausible and reasonable view, merely because CIT holds another view on the same facts, cannot make Assessing officer's order as erroneous and prejudicial as held by Hon'ble Supreme Court in Malabar Industrial Co. Ltd. v. CIT [2000] 243 ITR 83/109 Taxman 66. 5. Ld. CIT (DR) supported the order of the CIT and contends that: (i) The cryptic order passed by the assessing officer is unsustainable (ii) Having held the excess claim of depreciation in preceding year as liable for penalty u/s 271(1)(c) itself shows lack of application of mind by assessing officer in dropping the penalty proceedings in this year. Reliance is placed on Toyota Motor Corpn. (supra) and Allahabad High Court judgment in the case of CIT v. Braj Bhushan Cold Storage [2005] 275 ITR 360/145 Taxman 585. (iii) Necessary inquiries were not carried out by assessing officer. 6. As already mentioned, ld. CIT (DR) did not give further case laws and the Bench gave a ruling that any case law filed by the CIT(DR) after the hearing is over, will not be considered. The case laws filed on 21-11-2013 in defiance of Bench order, we are unable to consider them i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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