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TMI Blog2018 (7) TMI 738X X X X Extracts X X X X X X X X Extracts X X X X ..... 12, the Bench has considered the first show-cause dated 28.12.2011 and the second show-cause dated 18.06.2012 and in the totality of facts held that the assessee was made aware of the penalty proceedings having been initiated against him and he chooses to ignore the same. The said findings are in the context of issuance of show-cause and denial of reasonable opportunity being heard. Therefore, it is incorrect to hold that the Bench heavily relied upon only the communication dated 18.06.2012 as another show-cause notice. At the same time, we note that discussion regarding the second show-cause dated 18.06.2012 find mention in the penalty order only and there is no separate copy of the show-cause which is available on record. We, however, agree with the ld AR that the non-consideration of the decision of the Hon’ble Rajasthan High Court in case of Sheveta Construction Co. Pvt Ltd vs ITO [2016 (12) TMI 1603 - RAJASTHAN HIGH COURT] is a mistake apparent from record in the context of specific limb of section 271(1)(c) invoked by the AO and penalty finally levied by the AO - MA No.45/JP/2018 And ITA No. 820/JP/2016 - - - Dated:- 5-7-2018 - SHRI KUL BHARAT, JM AND SHRI VIKRAM SINGH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was relied upon and even adverse inference was drawn therefrom but absolutely without confronting to the assessee-applicant. Such issues have been discussed in the upcoming mistakes pointed out in this MA. 3.2 Mistake 2nd : In the written submissions (at page 9 para 6.2.2 to 6.2.6) filed during the course of hearing, the assessee applicant relied upon several decisions on the issues involved apart from CIT Anr. v. Manjunatha Cotton and Ginning Factory 359 ITR 565 (Kar.) which also included several decisions of the Hon'ble Coordinate Benches of ITAT Jaipur. The Hon'ble ITAT however has not at all whispered with regard to any other decisions. Some of the decisions were directly applicable on the facts of the present case. The law is well settled that non consideration of a decision of the Coordinate Bench and various other decisions including those binding i.e. of the Hon'ble Apex Court, is a mistake apparent. It appears that these decisions though cited in the written submission but escaped the kind attention of the Hon'ble ITAT resulting into a great injustice to the appellant. Had the above decisions been considered, the order of the Hon'ble ITAT woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has further observed that ..Even before us, no pleadings have been taken to show that there existed a reasonable cause for not attending to the penalty proceedings and offering its explanation before the AO .. However, such a fact finding is totally contrary to the record in as much as the assessee vide Pg 3 Pr 2.2 of the w/s, filed during the course of hearing, has made submission as regards the existence of reasonable cause and pertinently even the Hon ble ITAT has referred to such submission at Pg. 6 Pr. 8 of its order. However there appear no comments on the reasonable cause so pleaded by the assessee, which is a glaring mistake and has seriously prejudiced the rights of the assessee. Had the correct facts been considered, the order of the Hon ble ITAT would have been completely different. 4. Thus, the commitment of these patent mistakes have resulted in a great miscarriage of justice and seriously adversely affected and prejudiced the interest of the assessee for no fault of it. 5. All the above mistakes are apparent, glaring and patent and hence, require a suitable rectification u/s 254(2) of the Act and since these mistakes go to the root of the matter hence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Secondly, during the course of hearing, the Bench is at liberty to ask questions and solicit response from the ld AR and in the process, if the ld AR has got some unilateral impression on the outcome of the hearing and that too, without the Bench even whispering a word, such impression cannot be a basis for holding some mistake on part of the Bench when the matter is being heard and the decision has not been pronounced. Till the final decision in the matter is not finally pronounced in the Open court, any impressions which either of the parties may get cannot be a basis for moving an application under section 254(2) of the Act. 5. Regarding non-consideration of various Co-ordinate Bench decisions so relied upon by the ld AR, it is not essential that the Bench is required to gave its specific findings on each of the decisions so long as the said decisions have been duly considered before a final view has been taken. In this regard, Para 26 of the Tribunal order is explicit on the matter and it has been stated clearly that all the decisions and authority quoted by the ld AR have been duly considered. 6. Regarding the penalty show-cause dated 18.06.2012, the Bench has considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposing penalty on him as the Section 274 makes it clear that assessee has a right to contest such proceedings and should have full opportunity to meet the case of the Department and show that the conditions stipulated in Section 271(l)(c) do not exist as such he is not liable to pay penalty. The grounds for levy of penalty are thus linked to the adherence to the Principle of natural justice and it was held that such Principle of natural justice should not be offended. Now, let s examine how the same is applicable in the facts of the case. In the instant case, the assessee has been issued two show-cause notices. The first show-cause notice dated 28.12.2011 was issued along with the passing of the assessment order dated 28.12.2011 where the assessee was made aware of initiation of the penalty proceedings and thereafter, another show-cause notice was issued on 18.06.2012. Though the first show-cause notice talks about concealing the particulars of income or furnishing inaccurate particulars of income and the latter show-cause notice talks about both concealing the particulars of income and furnishing inaccurate particulars of income, the assessee however chose to ignore both the sho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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