M/s Datre Corporation Ltd., Kolkata V. THE DCIT- CIR-7, KOLKATA, Kolkata

ITA 1050/KOL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1418 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 19-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAURABH KUMAR CIT LD
• Assessee Lawyers: S K TULSIYAN LD

Judgement Text

1 ITA NO. 1050/KOL/2014 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA BEFORE: SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JU DICIAL MEMBER I.T.A NO. 1050/KOL/201 4 A.Y: 2003-0 4 M/S. DATRE CORPORATION VS. D.C.I.T., CIR-7, KOLKA TA LTD. PAN: AABCD 7943D [APPELLANT] [RESPONDEN T] FOR THE APPELLANT : SHRI S.K. TULSIYAN, ADVOCA TE, LD.AR FOR THE RESPONDENT : SHRI SAURABH KUMAR, ADDL.C IT, LD. SR.DR DATE OF HEARING : 19-09-2017 DATE OF PRONOUNCEMENT : 22-09-2017 ORDER SHRI S.S.VISWANETHRA RAVI, JM: THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER DT D. 18-09- 2013 OF THE COMMISSIONER OF INCOME TAX (APPEALS), X VI, KOLKATA FOR THE A.Y 2003-04, WHEREIN HE CONFIRMED THE PENAL TY OF RS. 4,65,311/- IMPOSED U/S. 271(1) ( C ) OF THE ACT BY THE AO. 2. THE LD.AR SUBMITS THAT THE ISSUE RAISED IN THE P RESENT APPEAL IS COVERED BY THE DECISION OF THE HONBLE SUPREME COUR T IN THE CASE OF SSAS EMERALD MEADOWS . HE SUBMITS THAT THE AO IMPOSED PENALTY ON DEFECTIVE NOTICE ISSUED U/S. 274 R.W.S 271 OF THE A CT ON 30-11-2005 FOR THE A.Y 2003-04, COPY OF THE SAME IS PLACED ON RECORD AND IN VIEW OF DECISION SUPRA THE IMPOSITION OF PENALTY IS NOT MAINTAINABLE. 3. THE LD.AR OF THE ASSESSEE FURTHER SUBMITS THAT T HE STATUTORY NOTICE DT. 30-11-2005 ISSUED BY THE AO [ ACIT, CIR- 7, KOLKATA ] U/S. 274 R.W.S 271 OF THE ACT IS DEFECTIVE. HE FURTHER A RGUED THAT THE ISSUE IN HAND IS SQUARELY COVERED IN FAVOUR OF ASSESSEE BY THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF SSAS EMER ALD MEADOWS. IN SUPPORT OF THIS CONTENTION, HE PLACED RELIANCE ON T HE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS SSAS EMERALD 2 ITA NO. 1050/KOL/2014 MEADOWS SUPRA IN ITA NO. 380 OF 2015 DATED 23.11.2015 WHICH WAS LATER APPROVED BY THE HONBLE SUPREME COURT BY DISM ISSAL OF SPECIAL LEAVE PETITION (SLP) FILED BY THE REVENUE IN CC NO. 11485/2016 DATED 5.8.2016. IN RESPONSE TO THIS, THE LD DR VEH EMENTLY RELIED ON THE ORDER OF THE LD AO. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS. WE FIND THAT THE PENALTY NOTICE DT.30-11-2005 ISSUED U/S 274 R.W.S 271 OF T HE ACT DOES NOT SPECIFY THE CHARGE OF OFFENCE COMMITTED BY THE ASSE SSEE VIZ WHETHER HAD CONCEALED THE PARTICULARS OF INCOME OR HAD FURN ISHED INACCURATE PARTICULARS OF INCOME. HENCE THE SAID NOTICE IS TO BE HELD AS DEFECTIVE. THIS ISSUE HAS BEEN DECIDED BY THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS SSAS EMERALD MEADOWS IN ITA NO. 380 OF 2015 DATED 23.11.2015 WHICH IN TURN PLACED RELIANCE ON ANOTHER JUDGMENT OF THE SAME COURT IN THE CASE OF CIT VS MANJUNATHA COTTON AND GINNING FACTORY REPORTED IN 359 ITR 565 (KAR). IN THE SAID DECISION, THEIR LORDSHIPS OF HONBLE KARNATAKA HIGH COURT HEL D THAT :- 3. THE TRIBUNAL HAS ALLOWED THE APPEAL FILED BY THE ASSESSEE HOLDING THE NOTICE ISSUED BY THE ASSESSING OFFICER UNDER SECTION 274 READ WITH S ECTION 271(1)(C ) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT) TO BE BAD IN LAW AS IT DID NOT SPECIFY WHICH LIMB OF SECTION 271(1)(C ) OF THE ACT, THE PENALTY PROCEEDINGS HAD BEEN INITIATED I.E , WHETHER FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE TRIBUNAL, WHILE ALLOWING THE APPEAL OF THE ASSE SSEE, HAS RELIED ON THE DECISION OF THE DIVISION BENCH OF THIS COURT RENDERED IN THE CASE O F COMMISSIONER OF INCOME TAX VS MANJUNATHA COTTON AND GINNING FACTORY REPORTED IN ( 2013) 359 ITR 565. 4. IN OUR VIEW, SINCE THE MATTER IS COVERED BY JUDG EMENT OF THE DIVISION BENCH OF THIS COURT, WE ARE OF THE OPINION, NO SUBSTANTIAL QUESTI ON OF LAW ARISES IN THIS APPEAL FOR DETERMINATION BY THIS COURT. THE APPEAL IS ACCORDI NGLY DISMISSED. 5. WE FIND THAT THE REVENUE HAD PREFERRED A SLP B EFORE THE HONBLE SUPREME COURT AGAINST THIS JUDGMENT WHICH WAS DISMI SSED IN CC NO. 11485/2016 DATED 5.8.2016 BY OBSERVING AS UNDER:- UPON HEARING THE COUNSEL, THE COURT MADE THE FOLLOW ING ORDER DELAY CONDONED. WE DO NOT FIND ANY MERIT IN THIS PETITION. THE SPE CIAL LEAVE PETITION IS , ACCORDINGLY DISMISSED. PENDING APPLICATION, IF ANY, STANDS DISPOSED OF. 6. RESPECTFULLY FOLLOWING THE AFORESAID JUDICIAL P RECEDENTS, WE CANCEL THE PENALTIES LEVIED OF RS. 4,65,311/- (A.Y 2003-0 4) BY THE AO U/SEC. 271(1)(C) OF THE ACT AND CONFIRMED BY THE CI T-A. ACCORDINGLY, 3 ITA NO. 1050/KOL/2014 THE GROUNDS RAISED BY THE ASSESSEE IN THE APPEAL FO R THE A.Y UNDER CONSIDERATION IS ALLOWED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22-0 9-2017 SD/- SD/- WASEEM AHMED S.S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 22-09-2017 PP(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT: M/S. DATRE CORPORATION LTD 60A, DIAMOND HARBOUR ROAD, THAKURPUKUR, KOLKATA-63. 2 RESPONDENT :THE DCIT, CIR-7, AAYKAR BHAWAN, KOLKATA -69. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, SR.PS/H.O.O ITAT KOLKATA