Vijay Shivajirao Kokate, Nashik V. Assistant Commissioner of Income tax, Nashik

ITA 1008/PUN/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8623 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 8 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 21-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK MALVIYA
• Keywords: Depreciation; Initiation of penalty proceedings; Set aside
• Section: 271(1)(c); 143(3); 274

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, J UDICIAL MEMBER . / ITA NO. 1008 / P U N/201 7 / ASSESSMENT YEAR : 20 09 - 10 VIJAY SHIVAJIRAO KOKATE 1, VEERA PARK, TIRUPATI TOWN, NEAR AAKASHWANI TOWER, GANGAPUR ROAD, NASHIK 4 22013 PAN : A GDPK8058P . / APPELLANT V/S THE ASST. COMMISSIONER OF INCOME TAX, CIRCLE 1, NASHIK . . / RESPONDENT ASSESSEE BY : WRITTEN SUBMISSIONS REVENUE BY : SHRI ALOK MALVIYA / ORDER PER ANIL CHATURVEDI, AM : THIS APPEAL PREFERRED BY THE ASSESSEE EMANATES FROM THE ORDER OF THE LD. CIT(A) - 1, NASHIK, DATED 01.02.2017, FOR THE ASSESSMENT YEAR 2009 - 10. / DATE OF HEARING : 1 3 .0 1 .20 20 / DATE OF PRONOUNCEMENT: 20 . 0 1 .20 20 2 ITA NO.1008/PUN/2017 SHRI VIJAY S. KOKATE 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER : - ASSESSEE IS A N INDIVIDUAL AND RUNNING A PROPRIETARY BUSINESS OF CONSTRUCTION CONTRACTS FOR VARIOUS GOVERNMENT AND SEMI - GOVERNMENT AUTHORITIES. IN THE INSTANT CASE, ASSESSMENT ORDER U/S 143(3) R.W.S. 147 OF THE INCOME - TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS PASSED ON 27.02.2015 ASSESSING TOTAL INCOME AT RS.55,36,106/ - . THE ASSESSING OFFICER MADE AN ADDITION OF RS.2,89,166/ - ON AC COUNT OF EXCESS CLAIM OF DEPRECIATION. THE ASSESSING OFFICER HAS ALSO INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT FOR CONCEALMENT AND FURNISHING INACCURATE PARTICULARS OF INCOME. IN RESPONSE TO INITIATION OF PENALTY PROCEEDINGS, THE ASSESSEE S UBMITTED REPLY, WHICH WAS NOT FOUND ACCEPTABLE TO THE ASSESSING OFFICER AND LEVIED PENALTY VIDE ORDER DATED 27.08.2015 BY OBSERVING THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME AND HAS CONCEALED THE INCOME TO EVADE THE TAX ON INCOME OF RS.2,89,166/ - . AGGRIEVED BY THE PENALTY ORDER OF ASSESSING OFFICER , ASSESSEE CARRIED THE MATTER BEFORE LD.CIT(A), WHO VIDE ORDER DT. 01 .0 2 .201 7 (IN APPEAL NO. NSK /CIT(A) - 1/449/2015 - 16 ) DISMISSED THE APPEAL OF THE ASSESSEE . AGGRIEVED BY THE ORDER OF LD.CI T(A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS: - 1 . THE APPELLANT IS AN INDIVIDUAL ASSESSEE. HE IS RUNNING A PROPRIETARY BUSINESS OF CONSTRUCTION CONTRACTS FOR VARIOUS GOVERNMENT & SEMI - GOVERNMENT AUTHORITIES. 3 ITA NO.1008/PUN/2017 SHRI VIJAY S. KOKATE 2 . IN THE FACTS & CIRCUMSTANCES OF THE CASE, IT IS FAULT OF ACCOUNTANT TO PROVIDE EXCESS DEPRECIATION IN ACCOUNTS AND THERE WAS NOT ANY MALAFIDE INTENTION ON THE PART OF APPELLANT TO CONCEAL THE INCOME. 3 . THE APPELLANT HAS ACCEPTED THE ADDITION MADE BY THE A.O. 4 . THE SAID PEN ALTY IS AN INJUSTICE ON THE PART OF THE APPELLANT. 5 . THE APPELLANT BEING AGGRIEVED BY LEVY OF SUCH PENALTY BY A.O. AND CONFIRMED BY HON'BLE COMMISSIONER OF INCOME TAX (APPEALS) - I NASHIK, HAS PREFERRED AN APPEAL FOR DELETION OF THE SAID PENALTY. 6 . THE APPELLA NT MAY PLEASE BE PERMITTED TO SUBMIT THE SUPPORTING INFORMATION/CONFIRMATION AND EVIDENCE, IF ANY REQUIRES, DURING THE COURSE OF APPEAL PROCEEDINGS. 3. ON THE DATE OF HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE NOR ANY ADJOURNMENT APPLICATION WAS FIL ED. HOWEVER, THE ASSESSEE HAS FILED WRITTEN SUBMISSIONS. WE THEREFORE, PROCEED TO DISPOSE OF THE APPEAL EX - PARTE QUA THE ASSESSEE BASING ON THE MATERIAL AVAILABLE ON RECORD AND AFTER HEARING THE LD. DR. 4. BEFORE US LD. DR. SUPPORTED THE ORDERS OF ASSESSING OFFICER AND CIT(A). 5. WE HAVE HEARD THE LD. DR AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESPECT TO LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. IN THE PRESENT CASE, PENA LTY OF RS.98,290/ - HAS BEEN LEVIED ON ADDITION OF RS.2,89,166/ - WHILE FINALIZING THE ASSESSMENT. THE PERUSAL OF ASSESSMENT ORDER PASSED U/S 143(3) R.W.S. 147 OF THE ACT REVEALS THAT IN THE ASSESSMENT ORDER ASSESSING OFFICER HAD RECORDED SATISFACTION NAM ELY FOR CONCEALMENT AND FURNISHING OF INACCURATE PARTICULARS OF INCOME I.E. HE HAS RECORDED SATISFACTION FOR BOTH THE LIMBS FOR LEVY OF PENALTY. THEREAFTER, IN THE 4 ITA NO.1008/PUN/2017 SHRI VIJAY S. KOKATE PENALTY ORDER PASSED U/S 271(1)(C) OF THE ACT, ASSESSING OFFICER HELD THAT ASSESSEE HAD FUR NISHED INACCURATE PARTICULARS OF INCOME AND HAS CONCEALED THE INCOME AND ACCORDINGLY LEVIED THE PENALTY. IT IS A SETTLED LAW THAT WHILE LEVYING PENALTY FOR CONCEALMENT, THE ASSESSING OFFICER HAS TO RECORD SATISFACTION AND THEREAFTER COME TO A FINDING IN R ESPECT OF ONE OF THE LIMBS, WHICH IS SPECIFIED UNDER SECTION 271(1)(C) OF THE ACT. THE FIRST STEP IS TO RECORD SATISFACTION WHILE COMPLETING THE ASSESSMENT AS TO WHETHER THE ASSESSEE HAD CONCEALED HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME. THEREAFTER, NOTICE U/S 274 READ WITH SECTION 271(1)(C) OF THE ACT IS TO BE ISSUED TO THE ASSESSEE. THE ASSESSING OFFICER THEREAFTER HAS TO LEVY PENALTY UNDER SECTION 271(1)(C) OF THE ACT FOR NON - SATISFACTION OF EITHER OF THE LIMBS. WHILE COMPLETING THE ASSESSMENT, THE ASSESSING OFFICER HAS TO COME TO A FINDING AS TO WHETHER THE ASSESSEE HAS CONCEALED H IS INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. SAMSON PERINCHERY REPORTED IN (2017) 392 ITR 4 (BOM) HELD THAT WHERE INITIATION OF PENALTY IS ONE LIMB AND THE LEVY OF PENALTY IS ON OTHER LIMB, THEN IN THE ABSENCE OF PROPER SHOW CAUSE NOTICE TO THE ASSESSEE, THERE IS NO MERIT IN LEVY OF PENALTY. 6. CONSIDERING THE FACTS OF THE PRESENT CASE IN TH E LIGHT OF THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. SAMSON PERINCHERY (SUPRA), WE ARE OF THE VIEW THAT IN THE PRESENT CASE, THE BASIC CONDITION FOR LEVY OF PENALTY HAS NOT BEEN FULFILLED AND THAT THE PENALTY ORDER SUFFERS FROM NON - E XERCISING OF JURISDICTION POWER OF 5 ITA NO.1008/PUN/2017 SHRI VIJAY S. KOKATE ASSESSING OFFICER AND THEREFORE PENALTY ORDER CANNOT BE UPHELD. WE ACCORDINGLY SET ASIDE THE PENALTY ORDER PASSED BY ASSESSING OFFICER . THUS, THE GROUND S OF ASSESSEE ARE ALLOWED. 7 . IN THE RESULT, THE APPEAL OF THE ASS ESSEE IS ALLOWED. ORDER PRONOUNCED ON 20 TH DAY OF JANUARY , 20 20 . SD/ - SD/ - ( S.S. VISWANETHRA RAVI ) ( ANIL CHATURVEDI ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER PUNE ; DATED : 20 TH JANUARY , 20 20 . GCVSR / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 1, NASHIK 4. / THE PR.CIT - 1, NASHIK 5. , , , / DR, ITAT, B BENCH, PUNE. 6. / GUARD FILE. / BY ORDER // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE .