Shri Bhagwan Singh Palaria, Jones Ganj, Ajmer v. The Commissioner Of Income Tax, Income Taxdepartment, Ajmer

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Income Tax Appeal No.95/2018 Shri Bhagwan Singh Palaria, Jones Ganj, Ajmer. ----Appellant Versus 1. The Commissioner Of Income Tax, Income TaxDepartment, Ajmer. 2. The Income Tax Officer, Ward-2(2), Ajmer. ----Respondents For Appellant(s) : Mr. P.K. KasliwalFor Respondent(s): Ms. Parinitoo Jain withMs. Shiva Goyal HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE GOVERDHAN BARDHAR Order 20/12/2018 Learned counsel for the appellant submits that the presentappeal is directed against the order dated 26.06.2009 of theIncome Tax Appellate Tribunal, Jaipur Bench, Jaipur, whereby thepenalty under Section 158 BFA (2) of the Income Tax Act, 1961amounting to Rs.98,19,531/- arising out of the assessment orderfor the block period 1988-89 to 1997-98 upto 20.01.1998 hasbeen upheld. Learned counsel has referred to the judgment of thiscourt in D.B. Income Tax Appeal No.54/2006, filed by theappellant himself, which was decided on 25.04.2017. Earlier theappeal filed against the main assessment order was allowedrelying on earlier judgment of this court dated 21.03.2017 in D.B.Income Tax Appeal No.2/2008 – M/s. Mool Chand Kumawat &Sons Vs. CIT, Ajmer. The department filed Special Leave Petition against the aforesaid judgment dated 25.04.2017, which, aftergrant of leave, has been dismissed vide order dated 05.03.2018.When the main assessment order has been set aside, there can beno question of the penalty being imposed. The ITAT has passedthe order of penalty by order dated 26.06.2009 (Annexure-3). Theappellant filed the application for rectification. The Tribunalrejected the same by order dated 11.10.2017 (Annexure-5) asbarred by limitation, however, observed that the appellant cantake his remedy only in appeal against the main order. Having regard to the facts aforementioned and consideringthat the main assessment order itself has ceased to exist, theappellant cannot be saddled with penalty, we allow the appeal andset aside the impugned order dated 26.06.2009 (Annexure-3). Learned counsel for the respondent submits that theappellant has also filed writ petition against the order dated11.10.2017 of the ITAT rejecting the application for rectification.Learned counsel for the appellant submits that he shall withdrawthe said writ petition in the light of the order now passed by thiscourt. (GOVERDHAN BARDHAR),J(MOHAMMAD RAFIQ),J//Jaiman//24