Commissioner of Income Tax vs Gama Investment

While quashing the penalty orders, the ITAT inter alia observed as under:

On considering the entire material we do not find much force in the arguments- of the Ld. Sr. DR. On perusal of the penalty order itself it is clear

that in assessment year 1992-1993 the assessee had returned loss at Rs. 4,22,498 and the return was processed u/s 143(1)(a) on 2-3-1993. The

assessment was, thereafter completed u/s 143(3) on 21-3-1995 at a total income of Rs. 7,373. The contention of the learned counsel for the

assessee Shri Pradeep Dhnodia before us was that the assessment orders were not received by the assessee before filing the return for assessment

year 1995-1996. So far as the Assessment Year 1994-1995 is concerned, the assessee had returned loss of Rs. 4,53,111. The return was filed

on 30-11-1994. The case was processed u/s 143(1)(a) on the returned loss shown by the assessee and subsequently the case was selected for

scrutiny and income was assessed at pending before the Commissioner (Appeal) at the time when penalty proceedings were being concluded)

These facts are clearly brought out form para 2.1 and 4 of the penalty order. Thus, it is the return for Assessment Year 1995-1996 and therefore it

could not be said that the assessee had knowledge that its claim for loss was rejected before filing the return.

Submission of the learned counsel for the revenue is that it is on the part of the assessee to allege that the assessee had not received the orders in

respect of Assessment Year 1992-93. In order to substantiate this plea, the revenue has produced on record the copy of the postal receipt vide

which assessment order for the year 1992-93 was sent by post to the assessee on 29-3-1995 and tax was paid on 18-4-1995. The revenue has

also placed on record Challan for payment of tax pursuant to the said assessment year. To negate the contention of the assessee insofar as

Assessment Year 1994-95 is concerned, the appellant placed on record the return filed by the assessee for the assessment year 1994-95 showing

the business income as per profit and loss at Rs. 8,38,711.

Learned counsel for the respondent submit that since these documents were not produced by the appellant earlier, the Tribunal did not have the

benefit of examining these document. Therefore, the matter be remitted back to the Tribunal for fresh consideration. This course of action is

acceptable to revenue as well. Accordingly, we set aside the impugned orders dated 30-8-2004 and remit the case back to the ITAT for decision

of the appeal afresh. It will also be open to the assessee to argue the issue for satisfaction in the light of this Court''s Division Bench judgment in die

case of Ms. Madhushree Gupta v. Union of India [2009] 183 Tax 100.