TMI Blog2022 (7) TMI 555X X X X Extracts X X X X X X X X Extracts X X X X ..... (AY) 2009-10 to 2011-12. The ld CIT(A) adjudicated all the appeals by his consolidated order. In all the appeals the assessee has raised common grounds of appeal except variation of amount of penalty levied under section 271(1)(c), facts in all the years are common, therefore, all the appeals were clubbed, heard together and are decided by common order to avoid the conflicting decisions. For appreciation of facts, the facts in AY 2009-10 are treated as lead case. The assessee raised the following grounds of appeal: 1. On the facts and in the circumstances of the case as well as law on the subject, the ld Commissioner of income tax (Appeals) has eared in confirming the action of penalty of assessing officer in levying penalty of Rs. 3,71,643/- under section 271(1)(c) of the I T Act. 2. It is therefore prayedthat the above penalty may please be deleted as the learned members of the Tribunal may deem it proper. 3. The appellant craves leave to add, amend, alter, delete/change or modify any or all the grounds ofappeal at the time of hearing. 2. Perusal of record shows that the order impugned in these appeals was passed on 26.07.2017, however, the appeals were filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor of Land Acquisition Vs Mst Katiji (1987) taxmann.com 1072(SC), Jayvantsing N Vaghela Vs ITO (2013 40 taxmann.com 491 (Gujarat), Satradeo Prasad Shaw Cr Rev No. 1299 of 2022 dated 02.06.2022 by Kolkata High Court, Paschim Gujarat Vij Company Ltd Vs Shantuben Sanjaybhai Mer SCA No.16984 of 2021 (Gujarat High Court), Nimesh Dilipbhai Brahmbhatt Vs Hitesh Jayantibhai Patel SCA No. 6547 of 2020 (Gujarat High Court), Indian Home Pipe Company Ltd. Vs Gujarat Industrial Development Corporation others SCA No. 10173 of 2018 (Gujarat High Court) and Nandlal Namdev Otwani Vs Vijai Jaiprakash Ahuja C.A No. 941 of 2020 (Gujarat High Court). 5. On the other hand the learned Senior departmental representative (ld Sr DR) for the revenue after going through the contents of the application for condonation of delay and the medical prescription of accountant of the assessee would submits that the Bench may take decisions as per law. 6. We have considered the rival submissions of the parties and perused the relevant medical record of the accountant of the assessee. On perusal of the copies of the medical papers filed with the application of condonation of delay in filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 8. The Hon ble Apex Court in Collector of Land Acquisition Vs Mst Katiji (supra) held that when substantial justice and technical consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated order dated 26.07.2017 for all three assessment years. Further, aggrieved, the assessee has filed present appeal before this Tribunal. 12. We have heard the submissions of the ld AR for the assessee and the ld Sr DR for the revenue. The Ld. AR of the assessee submits that the additions on the basis of which the penalty was levied by assessing officer under section 271(1)(c) has been deleted by Tribunal in appeal in the quantum assessment vide order dated 14.02.2020 in ITA (s) No. 1535, 1536 1537/Ahd/2017, copy of which is filed on record. The ld AR for the assessee submits that the Tribunal while allowing the appeal of the assessee allowed the set off of loss claimed by the assessee against the undisclosed income. The ld AR for the assessee submits that it is settled position under the law that once, the additions on the basis of which penalty is levied, is deleted, the order of penalty order will not survive. 13. On the other hand the ld. Sr. DR for the Revenue submits that the assessee that the assessing officer may be directed to verify the facts and modify the penalty order to the extent the additions/ set off of loss was not allowed by the Tribunal. 14. We hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he undisclosed income, Rs. 12,66,200/- for that AY as 'set off as provided under Chapter VI of the Act read with Sections 70 and 71 of the Act in as much as the fact that if the undisclosed income is assessed as business income then the set off to be allowed under Section 70 and if the same is considered under any other head other than 'salaries', set off to be under Section 71 of the Act. 15. We have also considered the decision in the case of Hon'ble Supreme Court in the case of CIT Vs. D.P.Sandu Bros. [2005] Taxman 713 (SC) wherein it has been held that section 14 and section 56 of the Act constitutes of complete code for the purpose of determining under which head of particular income would be taxed. 16. We have also considered the decision of Hon'ble Madras High Court in para no.10 and page 6 of the order of the ld.AO has held as under: . The income-tax is only one tax and levied on the sum total on the income classified and chargeable under various heads. Section 14 has classified different heads of income and income under each head is separately computed. Income which is computed in accordance with law is one income and it is not collec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent heads of income and income under each head is separately computed. Income which is computed in accordance with law is one income and it is not collection of distinct tax levied separately on each heads of income and it is not an aggregate of various taxes computed with reference to each of the different sources separately. There is only one assessment and the same is made after the total income has been ascertained. The assessee is subject to income-tax on his total income though his income under each head may be well below the taxable limit. Hence the loss sustained in any year under any heads of income will have to be set off against income under any other head. In this case, the Assessing Officer made addition of Rs. 28,50,000/- as undisclosed income under Section 69 of the Act. Once the loss is determined, the same should be set off against the income determined under any other head of income. The benefit provided under Section 71 of the Act cannot be denied . In our opinion, the statutory provisions contained in Section 71 was applicable in the present case. By applying the decision in the case of Fakir Mohmed Haji Hasan as explained in the case of Deputy Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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