ACIT, Berhampur V. Sri Satyaban Pattnaik, Berhampur

ITA 1/CTK/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 4255 (ITAT-CUTTACK)
• Duration Of Justice: 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-07-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2003-2004
• Appeal Filed On: 01-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C DAS
• Assessee Lawyers: A S MANDAL
• Keywords: Unexplained investment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE HONBLE SHRI D.K.TYAGI, JUDICIAL MEMBER. /AND HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER . / I.TA.NO . 01/CTK/2010 / ASSESSMENT YEAR 2003 - 04 ASST.COMMISSIONER OF INCOME - TAX, BERHAMPUR CIRCLE, BERHAMPUR. - - - VERSUS - . SRI SATYABAN PATTNAIK, GOILUNDI ROAD, BERHAMPUR. ADIPP 987 7 B / A PPELLANT RESPONDENT FOR THE APPELLANT : SHRI K.C.DAS, AR FOR THE RESPONDENT : SHRI A.S.MANDAL, DR / ORDER SHRI K.K.GUPTA, ACCOUNTANT M EMBER . THE REVENUE IS IN APPEAL DISPUTING THE ORDER DT.19.10.2009 OF THE COMMISSIONER OF INCOME - TAX (APPEALS), BERHAMPUR IN DELETING THE PENALTY OF RS.5,53,000 LEVIED U/S.271(1)(C) OF THE INCOME - TAX ACT,1961 FOR THE ASSESSMENT YEAR 2003 - 04. 2 . THE FACTS AS CULLED OUT FROM RECORD REVEALS THAT ON THE BASIS OF SUSTENANCE OF ADDITIONS IN QUANTUM APPEAL TOTALING TO RS.17,55,354 I.E., RS.5,74,560 ON ACCOUNT OF BOGUS EXPENDITURE, RS.7,80,794 ON ACCOUNT OF UNEXPLAINED INVESTMENT RS.4,00,000 AS INCOME FROM OTHER SOURCE, THE ASSESSING OFFICER HAD LEVIED PENALTY OF RS.5,53,000 U/S.271(1)(C), BEING 100% OF TAX SOUGHT TO BE EVADED. AGAINST THE QUANTUM APPEAL, ASSESSEE FILED APPEAL BEFORE THE TRIBUNAL AND THE TRIBUNAL VIDE ORDER DT.27.2.2009 IN ITA NO.293/CTK/2006 DELE TED THE ENTIRE ADDITIONS AS SUSTAINED BY THE LEARNED CIT(A). CONSIDERING THE ABOVE AND RELYING ON THE DECISION OF HONBLE PATNA HIGH COURT IN THE CASE OF CIT V. S.P. VIZ CONSTRUCTION COMPANY [176 ITR 47 (PAT)], IN THE IMPUGNED ORDER, THE LEARNED CIT(A) DEL ETED THE PENALTY LEVIED U/S.271(1)(C). 3. DURING THE COURSE OF HEARING BEFORE US, THE LEARNED DR DID NOT DISPUTE THE FACTS NARRATED IN THE FOREGOING PARAGRAPHS SAVE AND EXCEPT RELYING ON THE ORDER OF THE I.TA.NO .01/CTK/2010 2 ASSESSING OFFICER. THE LEARNED AR OF THE ASSESSEE, ON THE OTHER HAND, WHILE SUPPORTING THE IMPUGNED ORDER OF THE LEARNED CIT(A) FURTHER RELIED ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF K.C.BUILDERS V. ACIT [265 ITR 562 (SC)]. 4. HEARD BOTH THE PARTIES AND PERUSED THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW. CONSIDERING THE UNDISPUTED FACT S THAT THE ADDITIONS IN QUESTION FORMING BASIS FOR LEVY OF PENALTY U/S.271(1)(C) HAVE BEEN DELETED BY THE TRIBUNAL, THE IMPUGNED ORDER OF THE LEARNED CIT(A) DELETING THE LEVY OF PENALTY U/S.271(1)(C) CANNOT BE FAULTED WITH WHICH FINDS AMPLE SUPPORT FROM CATENA OF JUDICIAL PRONOUNCEMENT S INCLUDING THAT IN DECISION OF HONBLE SUPREME COURT IN THE CASE OF K.C.BUILDERS AND ANOTHER V. ACIT[265 ITR 562 (SC)], WHEREIN THEIR LORDSHIPS HAVE OBSERVED THAT WHILE THE A DDIT I ONS MADE IN THE ASSESSMENT ORDER ON THE BASIS OF WHICH PENALTY FOR CONCEALMENT IS LEVIED, ARE DELETED, THERE REMAINS NO BASIS AT ALL FOR LEVYING PENALTY FOR CONCEALMENT AND THEREFORE, IN SUCH A CASE NO PENALTY CAN SURVIVE AND THE PENALTY IS LIABLE TO CANCELLED . IN VIEW OF THE ABOVE, WE DISMISS THE APPEAL OF THE REVENUE BY UPHOLDING THE IMPUGNED ORDER OF THE LEARNED CIT(A) DELETING THE PENALTY OF RS.5,53,000 LEVIED U/S.271(1)(C) OF THE ACT FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 23.07.2010 SD/ - SD/ - ( ), D.K.TYAGI JUDICIAL MEMBER (K.K.GUPTA), ACCOUNTANT MEMBER. DATE: 23.07.2010 ( /) H.K.PADHEE SENIOR.PRIVATE SECRETARY. I.TA.NO .01/CTK/2010 3 - COPY OF THE ORDER FORWARDED TO : / THE APP ELLANT : ASST.COMMISSIONER OF INCOME - TAX, BERHAMPUR CIRCLE, BERHAMPUR. / THE RESPONDENT : SRI SATYABAN PATTNAIK, GOILUNDI ROAD, BERHAMPUR. THE CIT, THE CIT(A), DR, CUTTACK BENCH GUARD FILE TRUE COPY , BY ORDER , [ ] SENIOR PRIVATE SECRETARY