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05-11-2019, Radha Mohan Purshottam, Section 154, 249(4), 132, Tribunal Lucknow

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6 days 5 hours ago #11327 by amit
Section - 154, 249(4), 132, 234B, 234C
Order Date - 05-11.2019
Favouring - Assessee Partly
Court - Tribunal Lucknow
Appellant - Radha Mohan Purshottam Das Jewels Pvt. Ltd.
Respondent - ACIT
Justice - A. D. JAIN VP & T. S. KAPOOR AM
Citation - 1119Taxpundit63
Appeal No. - ITA No.127/LKW/2017
Asstt. Year - 2011-12

Order

PER : A. D. JAIN, V.P.

This is assessee’s appeal against the order of the ld. CIT(A)- IV, Kanpur, dated 7/12/2016 for assessment year 2011-12, taking the following grounds

1. Because the CIT(A), has erred on facts and in law in dismissing the appeal ex parte without giving adequate opportunity, which order is bad in law and be quashed.

2. Because the CIT(A) has erred on facts and in law in summarily dismissing the appeal ex-parte being dismissed in default stating that on the date fixed, none attended, which dismissal of appeal is contrary to facts and set-a-side.

3. Because the assessee being prevented by sufficient and reasonable cause in not attending before the CIT(A) in response to the notices issued, the order passed by the CIT(A) be setaside. Without Prejudice:

4. Because the CIT(A) has erred on facts and in law in dismissing the appeal filed against the order passed under section 154 of the Act, 1961 in limine holding that the "admitted tax" in terms of section 249(4) has not been deposited, the appeal being not maintainable, the order passed by CIT (A) is contrary to facts, bad in law and be quashed.

5. Because the entire "admitted tax" having been deposited as per the provisions of law in terms of section 249 and the details, having been furnished, the CIT(A) has, misinterpreted the provisions and has arbitrarily held, that the "admitted tax" has not been deposited the order passed by the CIT(A) be quashed.

6. Because the CIT(A) has failed to appreciate that the present appeal is against the orders passed u/s 154 of the Act, 1961 and not against 143(3), the provisions of the section 249 as such would prima fade not be applicable the dismissal of appeal in limine is totally unwarranted.

7. Because had the "admitted tax not been deposited or deemed to have deposited, the AO would not have dropped the penalty proceedings initiated u/s 140A/221 of the Act, 1961, this itself proves that the "admitted tax" stood deposited, the order passed is bad in law and be quashed.

8. Because the CIT(A) has failed to appreciate that it is a case of search u/s 132 dated 31.03.2011 wherein the assessee had surrendered Rs.8 crores at the time of search and cash amounting to Rs 4,70,80,000/- was seized; three postdated cheques aggregating to Rs.2.25 crores were procured from the assessee towards payment/adjustment of tax on the amount surrendered at the time of search itself, there was no reason for the CIT(A) to infer, that the "admitted tax" had not been deposited, the order passed by the CIT(A) is bad in law and be quashed.

9. Because the CIT(A) has failed to appreciate that the assessee had moved three letters of three different dates i.e., 07.04.2011, 07.11.2012 and 17.04.2013 requesting for adjustment of the amount seized towards payment of tax liability in terms of section 132, the amount seized was bought to be adjusted against the tax liability, arising at, the time of filing of return on the income surrendered, the CIT(A) has erred in holding otherwise, the 'appeal order passed' by the CITA) be quashed.

10. Because the authorities below have erred on facts and in law in charging interest under section 2348 and 234C of the Act without adjusting the amount of cash seized at the time of search, from the date when the request was made which if done, there would be no liability to pay interest, the interest charged be deleted.

11. Because without being prejudice to the above, the CIT(A) has erred in law in not giving any finding, on the merits of the case, which is contrary to the principles of judicial discipline.

2. This is a recalled matter. The appeal in ITA No.127/LKW/2017, first time, was disposed of by the Lucknow Bench of the Tribunal, vide order dated 4/5/2018, setting aside the order of the ld. CIT(A) and restoring the matter back to his file with a direction to adjudicate the issue afresh after providing opportunity of hearing to the assessee and also looking into the order of the Tribunal as referred to by the assessee before the Tribunal. Against this order, the assessee moved an application, vide M.A. No.31/LKW/2018, with the submission that the issue involved in the appeal of the assessee is identical to the issue raised by the ‘Radha Mohan Purshottam Das Agarwal’ Group, consisting of ten appeals, being ITA Nos.679 to 687/LKW/2017, whose appeals were disposed of by the Lucknow Bench of the Tribunal, vide order dated 8/8/2017, deciding the issue in favour of the assessees, therefore, the same view be taken in the case of the assessee also. Relying on the submissions made by the assessee, the order of the Tribunal dated 4/5/2017 in ITA No.127/LKW/2017 was recalled and accordingly the appeal is fixed for hearing on 22/10/2019.

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