Smt. Mamta Bajpai, Mandla V. Income Tax Officer, Ward 1(3) , Jabalpur

ITA 10/JAB/2018

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2252 (ITAT-JABALPUR)
• Duration Of Justice: 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 24-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V B SARGAR
• Assessee Lawyers: L L SHARMA
• Section: 143(3); 263; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JABALPUR BENCH, JABALPUR BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ./ ITA NO. 09 & 10/JAB/2018 / ASSESSMENT YEAR : 2005-06 SMT. MAMTA BAJPAI, C/O. SHRI ASHWINI BAJPAI, 42, AZAD WARD, MANDLA PAN : ADOPB 1186 F VS INCOME TAX OFFICER, WARD 1(3), JABALPUR / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI L.L. SHARMA, ADV. REVENUE BY : SHRI VB SARGAR, DR / DATE OF HEARING : 14/03/2018 / DATE OF PRONOUNCEMENT: 16/03/2018 / O R D E R PER KUL BHARAT, JUDICIAL MEMBER:- THESE TWO APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST S EPARATE ORDERS OF THE LEARNED COMMISSIONER OF INCOME-TAX (APP EALS)-I, JABALPUR, BOTH DATED 23 RD NOVEMBER 2017, ARISING OUT OF ORDER UNDER SECTION 271(1)(C) & 271(1)(B) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FRAMED BY THE INCOME TAX OFFICER, WARD 1(3), JABALPUR ON 11.12. 2009 FOR ASSESSMENT YEAR 2005-06 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL:- ITA NO. 09/JAB/2018 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARN ED ASSESSING OFFICER WAS NOT JUSTIFIED IN LEVYING THE PENALTY UNDER SECTION 271(1 )(C) OF THE INCOME TAX ACT, 1961 AND THE HON'BLE CIT(A) WAS NOT JUSTIFIED IN LA W IN CONFIRMING THE SAID PENALTY U/S 271(1)(C) OF THE ACT. 2. WITHOUT PREJUDICE TO THE FORE-GOING GROUND OF APPEAL, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEVYING OF PENALTY UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 AMOUNTING TO RS. 13,000- IS TOTA LLY UNJUSTIFIED AND HIGHLY EXORBITANT AND, ACCORDINGLY DESERVES TO BE DELETED. ITA NOS. 09 & 10/JAB/2018 SMT. MAMTA BAJPAI VS. ITO AY : 2005-06 2 ITA NO. 10/JAB/2018 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARN ED ASSESSING OFFICER WAS NOT JUSTIFIED IN LEVYING THE PENALTY UNDER SECTION 271(1 )(B) OF THE INCOME TAX ACT, 1961 AND THE HON'BLE CIT(A) WAS NOT JUSTIF IED IN LAW IN CONFIRMING THE SAID PENALTY U/S 271(1)(B) OF THE ACT. . 2. WITHOUT PREJUDICE TO THE FORE-GOING GROUND OF APPEAL, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEVYING OF PENALTY UNDER SECTION 271(1)(B) OF THE INCOME TAX ACT, 1961 AMOUNTING TO RS. 10,000/- IS TOTA LLY UNJUSTIFIED AND HIGHLY EXORBITANT AND, ACCORDINGLY DESERVES TO BE DELETED. 3. FIRST WE TAKE UP ITA NO. 09/JAB/2018. WE FIND THAT THE ONL Y EFFECTIVE GROUND RAISED IN THIS APPEAL IS AGAINST THE CONFIRMATION OF PENALTY OF RS.13,000/- LEVIED BY THE ASSESSING OFFICER UNDER SECTIO N 271(1)(C) OF THE ACT. 4. AT THE OUTSET, LEARNED COUNSEL FOR THE ASSESSEE SUB MITTED THAT IN THE NOTICE ISSUED FOR INITIATING PROCEEDINGS UNDER SECTI ON 271(1)(C) OF THE ACT, LEARNED ASSESSING OFFICER HAS NOT CLASSIFIED THAT THE P ROCEEDINGS HAVE BEEN INITIATED FOR CONCEALING PARTICULARS OF INCOME OR FOR FURNISHING INACCURATE PARTICULARS OF INCOME. TO THESE FACTS, LEARNED COUNSEL FOR THE ASSESSEE REFERRED AND RELIED UPON THE JUDGMENT OF THE HONBL E KARNATAKA HIGH COURT IN THE CASE OF CIT VS. MANJUNATHA COTTON AND GINNI NG FACTORY, REPORTED IN (2013) 359 ITR 565 (KAR). LEARNED DEPARTMENTAL R EPRESENTATIVE, ON THE OTHER HAND, SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RE CORD PLACED BEFORE US. THE ASSESSEE IS AGGRIEVED WITH THE PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE ACT AT RS.13,000/-, WHICH HAS BEEN LEVIED BY THE ASSESSING OFFICER ON THE ASSESSEE AS THE ASSESSEE WAS FAILED TO PRODUCE ANY EVIDENCE TO SUBSTANTIATE HIS CLAIM OF AGRICULTURAL INCOM E OF RS.1,06,780/- LEARNED COUNSEL HAS REFERRED AND RELIED UPON THE JUDGM ENT OF THE ITA NOS. 09 & 10/JAB/2018 SMT. MAMTA BAJPAI VS. ITO AY : 2005-06 3 KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON AND GI NNING FACTORY (SUPRA), WHEREIN IT HAS BEEN HELD THAT IF THE P ENALTY NOTICE IS ISSUED WITHOUT SPECIFYING THAT IT IS FOR FURNISHING OF INACC URATE PARTICULARS OF INCOME OR FOR CONCEALMENT OF PARTICULARS OF INCOME, SU CH PENALTY NOTICE IS NOT VALID. IN THE INSTANT APPEAL ALSO, FROM PERUSAL OF T HE PENALTY NOTICE PLACED ON RECORD, WE OBSERVE THAT THE ASSESSING OFFIC ER IS NOT CLEAR AS TO WHICH OF THE TWO LIMBS, UNDER WHICH PENALTY IS IMPOS ABLE, HAS BEEN CONTRABAND OR INDICATE THAT BOTH HAVE BEEN CONTRABAND WH ILE INITIATING PENALTY PROCEEDINGS. WE, THEREFORE, RESPECTFULLY FOL LOWING THE JUDGMENT OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF MANJUN ATHA COTTON AND GINNING FACTORY (SUPRA), AND, IN THE GIVEN FACTS AND C IRCUMSTANCES OF THE CASE, DELETE THE IMPUGNED PENALTY OF RS.13,000/- IMPOSED B Y THE ASSESSING OFFICER U/S 271(1)(C) OF THE ACT. THE APPEAL FILED BY TH E ASSESSEE IS THUS ALLOWED. 6. IN ITA NO.10/JAB/2018, THE SOLE ISSUE RAISED BY THE ASSESS EE IS AGAINST THE CONFIRMATION OF LEVY OF PENALTY AMOUNTING TO RS.10,000/ - IMPOSED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(B) OF THE A CT AS THE ASSESSEE WAS FAILED TO COMPLY WITH THE NOTICES ISSUED BY THE ASSE SSING OFFICER U/S 142(1)/143(2) OF THE ACT. LEARNED COUNSEL FOR THE ASSESSEE S UBMITTED THAT THE ORIGINAL ASSESSMENT WAS COMPLETED UNDER SECTION 144 O F THE ACT ON 12.12.2007 WHICH WAS SET ASIDE BY THE BY THE LEARNED CIT UNDER SECTION 263 OF THE ACT VIDE ORDER DATED 16.03.2009 DIRECTING THE ASSESSI NG OFFICER TO MAKE A FRESH ASSESSMENT. THE SET ASIDE ASSESSMENT WAS SU BSEQUENTLY COMPLETED ON 11.12.2009 UNDER SECTION 143(3) OF THE ACT AS THE AS SESSEE COMPLIED WITH ALL THE NOTICES ISSUED BY THE ASSESSIN G OFFICER. LEARNED COUNSEL FURTHER SUBMITTED THAT APPEAL AGAINST THE ORDER PASSED BY THE ASSESSING OFFICER ON 11.12.2009 BEFORE THE LEARNED CIT(A) I S STILL PENDING ITA NOS. 09 & 10/JAB/2018 SMT. MAMTA BAJPAI VS. ITO AY : 2005-06 4 BEFORE LEARNED CIT(A). HE THUS CONTENDED THAT UNDER THESE CIRCUMSTANCES LEARNED ASSESSING OFFICER WAS NOT JUSTIFIED IN IMPOSI NG THE IMPUGNED PENALTY. WE FIND FORCE IN THE SUBMISSION OF THE ASSESS EE. THEREFORE, KEEPING IN VIEW OF THE ENTIRE FACTS AND CIRCUMSTANCES OF THE C ASE, WE FIND THAT THIS IS NOT A FIT CASE TO LEVY PENALTY OF RS.10,000/- UNDER SECTION 271(1)(B) OF THE ACT. WE, THEREFORE, DELETE THE SAME AND ALLOW THE APPEAL FILED BY THE ASSESSEE. 7. IN THE RESULT, BOTH APPEALS FILED BY THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE COURT ON 16 TH MARCH, 2018 AT JABALPUR. SD/- SD/- (MANISH BORAD) ACCOUNTANT MEMBER (KUL BHARAT) JUDICIAL MEMBER JABALPUR; DATED 16/03/ 2018 *BIT / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, JABALPUR 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, JABALPUR