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TMI Blog2023 (7) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... erials available on record. 3. Both the appeals being ITA Nos. 215 & 216/Rjt/2022 are time barred by 6901 days. 4. The appeals have been preferred by the assessee, a non-resident Indian, one of the partners in the partnership firm, namely, M/s. Kuldeep Ginning & Pressing Factory in the capacity of Karta of his Hindu undivided family and currently staying at USA. These appeals are having a chequered history. Initially, a search and seizure action under Section 132 of the Act was conducted at the premises of the appellant on 08.06.1999. Consequent to such search, the jurisdiction of the appellant was transferred to the Deputy Commissioner of Income Tax, Jamnagar and the assessment proceeding whereof was finalized under Section 158BC of the Act on 29.06.2001 for the block period ended on 08.06.1999 determining the undisclosed income of appellant at Rs. 71,74,590/- on the alleged violation of the provision of Section 269SS and 269T of the Act by the appellant. Penalty proceedings under Section 271D & 271E of the Act was initiated separately culminating into levy of penalties of Rs. 26,97,460/- & Rs. 23,45,415/- respectively on 25.07.2002. 5. During the pendency of the assessment pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iberty to the appellant to file appeals before the Ld. CIT(A) latest by 31.08.2016 with an observation that the facts of the case were quite complicated and the statutory provisions even more so. 10. In terms of the liberty granted by the Hon'ble High Court at Gujarat, the appellant on 18.08.2016 duly filed appeal against the order passed under Section 158BC of the Act dated 16.07.2003. During the pendency of the said appeal before the Ld. CIT(A), on 12.02.2021 the appellant further opted for the Vivad se Vishwas Scheme (VSVS) for settling the tax issue in regard to the pending appeal under the said Scheme introduced by and under the Finance Bill, 2020 under Vivad se Vishwas Act, 2020, final order whereof was received on 19.04.2021 under the VSV, 2020 Scheme in Form No.5. 11. Before us, the appellant filed appeal being ITA No. 215/Rjt/2022 for the block period challenging the ex parte order of dismissal by the Ld. CIT(A)-3, Rajkot under Section 271D of the Act to the tune of Rs. 26,97,460/- for the alleged contravention of provision of Section 269SS of the Act on the ground that the Settlement Commission was in seisin of the matter and had exclusive jurisdiction on every aspect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is pertinent to note that these two penalty appeals before us are actually arising out of the quantum appeal order dated 29.06.2001 and the liberty granted by the Hon'ble Jurisdictional High Court was also in respect of dismissal of appeal by the Ld. CIT(A)-4, Rajkot dated 16.07.2003 arising out of the said quantum order dated 29.06.2001 under Section 158BC of the Act. Further that, though these two appeals are against the penalty orders but the status of both these two penalty appeals and the quantum appeal in which liberty was granted by the Hon'ble Jurisdictional High Court on 26.07.2016 remained same as on 16.07.2003 i.e. the date of dismissal order of CIT(A)-4, Rajkot and also on the date of order on 26.07.2016 passed by the Hon'ble Jurisdictional High Court. In that event, the delay in respect to these two penalty appeals filed before us by the appellant, therefore, to be reckoned on and from the date of passing of such order granting liberty to the appellant by the Hon'ble Jurisdictional High Court on 26.07.2016. Further, relevant fact is this that the assessee further opted for benefit provided under the VSV Scheme, 2020 introduced by the Finance Bill, 2020 on 12.02.2021 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant u/s 27ID and u/s 271E of the Act. The AO issued show-cause notice dated 15.01.2002, requiring the appellant to show-cause as to why the penalty of Rs 26,97,460/- should not be levied on alleged ground of contravening provisions of section 269SS. In response to the same, appellant stated that it had not contravened provisions of section 269SS of the Act. Furthermore, the appellant requested to keep the penalty proceedings in abeyance in order to avoid multiple proceedings as the settlement application filed before the Hon'ble Settlement Commission was still pending. However, the jurisdictional AO did not consider the submission of appellant and passed order u/s 271D dated 25.07.2002, levying penalty of Rs 26,97,460/-. 4.0 Being aggrieved, the appellant had filed an appeal against the penalty order before CIT (A) - IV, Rajkot on 27.08.2002. In the meantime, Hon'ble Settlement Commission had admitted the settlement application of appellant on 01.04.2003. Thereafter, on 16.07.2003, Hon'ble Commissioner of Income-Tax (Appeals)-IV, Rajkot had dismissed the appeal of appellant by stating that settlement commission has exclusive jurisdiction on every aspect of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant along with his wife Smt. Kaushalya J. Vikani permanently shifted to USA in the year 2003. He has further drawn our attention to the affidavit affirmed by the appellant appearing at Page Nos. 115 & 116 of the paper book filed before us. The relevant portion whereof is as follows: 17. The Ld. Counsel, therefore, vehemently argued on the two aspects of the matter, mainly, health issue of the appellant's wife who shifted to USA in 2003 and visiting India for medical treatment; the supporting documents whereof have also been filed before us on 28.03.2023 by the Ld. Counsel appearing for the appellant annexed to the paper book filed. Page Nos. 1 to 5 of the said paper book consist of the medical papers of appellant's wife for F.Y. 2008-09 and Page Nos. 6 to 8 consist of the medical documents for F.Y. 2016-17. The said documents are reproduced hereinbelow: 18. The above documents are sufficient enough to suggest poor health condition of the appellant's wife having multiple surgery, suffering from various illness, old age ailments too including thyroid disorder and were under constant medical treatment. We note that the Ld. DR has not been able to controvert such factual as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nderstood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. iii. Substantial justice being paramount and pivotal, the technical considerations should not be given undue and uncalled for emphasis. iv. No presumption can be attached to deliberate position of delay but, gross negligence on the part of the either Counsel or litigant is to be taken note which is not found in the case in hand before us. v. Apart from that we have to consider the prejudice theory; the appellant in this particular case would be seriously prejudiced in the event these applications in respect of penalty appeals are not allowed, keeping in view of the particular fact that the assessee was all along and all through vigilant about his case, executed power of attorney and kept constant vigil and it is also required for the courts to be vigilant so that in the ultimate eventuate there is no real failure of justice. vi. The conduct, behaviour and attitude of a party in relation to its inaction or negligence are relevant factors to be taken into consideration. It is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial to the order of quantum proceeding, the assessee filed appeals challenging the order of dismissal dated 16.07.2003 passed by the Ld. CIT(A)-4, Rajkot on the ground of pendency of the matter before the Settlement Commission. The assessee, has a right to approach the Court seeking remedy against the said orders and we cannot keep the assessee aside remediless, keeping in view of this fact of having no deliberate or willful violation or malafide intention on the part of the assessee in filing the appeal before us though the same is apparently after a long delay. viii. While going through the entire records of the case, we do not find any fraud or misinterpretation by the assessee by taking recourse to the technicalities of law of limitation. 21. On this aspect, we are also enlightened by the ratio laid down by the Hon'ble Apex Court in the case of Sardar Amarjit Singh Kalra & Ors. vs. Pramod Gupta & Ors. in Appeal (civil) 1027-1028 of 1992 where this particular maxim of 'Ubi Jus Ibi Remedium' has been recognized as fundamental principle of law and held that the duty of the Court is to protect the rights of the people and grant relief to the aggrieved party rather than denying i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were not found to be maintainable. These two appeals filed by the appellant on 13.11.2021 practically were for recalling of confirmation of penalty order passed by the Ld. CIT(A)-IV, Rajkot in view of the rejection of application by the Settlement Commission on 28.05.2013 and disposing of the Special Civil Application by the Hon'ble Gujarat High Court on 26.07.2016 restoring the right of the appellant to file the quantum appeal before the Commissioner stating that the facts of the case was quite complicated and the statutory provisions even more so. In fact, on this premise, the assessee preferred appeal before the Ld. CIT(A)-13, Ahmedabad on 13.11.2021 with the prayer for recalling of the orders passed by the Ld. CIT(A) dated 16.07.2003, whereby and whereunder the appeals were dismissed due to lack of jurisdiction as the Hon'ble Income Tax Settlement Commission was in session of the matter and having exclusive jurisdiction on every aspect of this case in terms of Section 245F(2) of the Act. Therefore, the appeals preferred by the assessee before the Ld. CIT(A)-IV, Rajkot stood dismissed on 16.07.2003 only on maintainability ground and not on merit. Practically, the imposition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the order passed by the Ld. AO dated 29.06.2001 under Section 158BC of the Act in respect of the Block Period ended on 08.06.1999. During the course of assessment proceeding, the Ld. AO recorded its finding at para 6 of assessment order that from the rough cash book being Annexure A-16, A-41 & A-75, it was found that the assessee has credited large amount in the name of Patel Cotton Company and the said account is operated as current account but no transaction has been recorded in the regular books of accounts. The said account was also reproduced in the assessment order; the assessee did not produce any evidence or confirmation in support of the said credits in the account. In fact, it is found from the records that the assessee has credited total of Rs. 6,10,000/- and payment of Rs 6,05,000/- which was made in piecemeal. The peak credit has been considered as appellant's unexplained cash credit introduced during the block period and addition to the tune of Rs. 4,30,000/- was made. Paragraph 10 of the assessment order speaks of credit amount of Rs. 11,87,460/- of the assessee and payment of Rs. 8.52,415/- in the name of M/s Patel Ginning Co. against which the peak of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peak of the transaction in the hands of the appellant the question of holding the same as loan or deposit for the purpose of section 271D is ab initio void" 31. We further note that the finding of the Ld.AO to the effect that the peak of receipts recorded in the name of third parties is nothing but appellant's own undisclosed income has already reached finality as soon as the matter got settled under the Vivad Se Vishwas Act, 2020 on 19.04.2021 in respect of the appeal pending before the appellate forum arising out of the same assessment order dated 29.06.2001. Thus, there is no scope for illustration of the mechanism already adopted by the Ld. AO in imposing penalty as we find that the peak of appellant has been held to be the undisclosed income of the appellant and added to the income of the appellant. On this aspect, we have considered the judgment relied upon by the Ld. AR passed by the Jurisdictional High Court in the case of CIT vs. Shyam Corporation, reported in [2013] 7 TMI 772, wherein receipt for which revenue intends to invoke the provision of Section 269SS or 269T of the Act as the case may be for imposing penalty under Section 271D or 271E of the Act as the case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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