ITO, WD-8(1), KOLKATA, Kolkata V. M/s Bagri Impex Pvt. Ltd., Kolkata

ITA 1060/KOL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1770 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 30-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA [BEFORE HONBLE SHRI ABY. T. VARKEY, JM & SHRI M. BALAGANESH, AM ] I.T.A NO. 1060/KOL/20 15 ASSESSMENT YEAR : 2006-0 7 I.T.O. WARD-8(1), KOLKATA -VS- M/S BAGRI IMPEX LTD. [PAN: AABCB 9912 A ] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : NONE FOR THE RESPONDENT : SH. G. BANERJEE, FCA DATE OF HEARING : 08.08.2017 DATE OF PRONOUNCEMENT : 11.08.2017 ORDER PER M.BALAGANESH, AM 1. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST T HE ORDER OF LD CIT(A)- 11, KOLKATA IN APPEAL NO. 493/CIT(A)-11/9(2)/14-15/KOL. DATED 21.5 .2015 FOR ASST YEAR 2006-07 DELETING THE PENALTY OF RS 17,09,497/- U/S 271(1)(C ) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS BEF ORE US :- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A)-11, KOLKATA HAS ERRED IN DELETING THE PENALTY OF RS. 17,09,497/- WHEREAS THE ORIGINAL ASSESSMENT ORDER WAS CONFIRMED BY HONBLE ITAT, KOLKATA AND SAME WAS UPH ELD BY HONBLE HIGH COURT, CALCUTTA. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A)-11, KOLKATA HAS ERRED IN RELYING UPON THE JUDGMENT OF JURISDICTIONAL HIGH COURT, CALCUTTA IN THE CASE OF CIT VS. MADAN THEATERS LTD. (2013) 260 CTR 75 (CALCUTTA ), THOUGH THE FACTS OF THE AFORESAID CASE IS NOT SQUARELY APPLICABLE TO THE PR ESENT CASE. 3. THE APPELLANT CRAVES LEAVE TO ADDUCE ADDITION AN D/OR SUPPLEMENTARY GROUND/GROUNDS AND TO AMEND AND/OR ALTER THE GROUND/GROUNDS ANY TI ME BEFORE OR THE TIME OF HEARING OF THE APPEAL. 2 ITA NO.1060/KOL/2015 M/S BAGRI IMPEX LTD. A.YR.2006-07 2 3. NONE APPEARED ON BEHALF OF THE REVENUE AND NO A DJOURNMENT PETITION WAS EVEN PREFERRED BY THE REVENUE ON THE SCHEDULED DATE OF H EARING. ACCORDINGLY WE PROCEED TO HEAR THE LD AR AND DISPOSE THE CASE BASED ON THE MA TERIAL AVAILABLE ON RECORD. AT THE OUTSET , WE FIND THAT THE LD AR STATED THAT THE SHO W CAUSE NOTICE ISSUED BY THE LD AO FOR INITIATION OF PENALTY U/S 271(1)(C ) OF THE ACT WAS DEFECTIVE IN NATURE AS THE LD AO HAD NOT STRUCK DOWN THE LIMB OF CHARGE / DEFAULT FOR WH ICH THE PENALTY IS BEING INITIATED AGAINST THE ASSESSEE. WE FIND THAT THE NOTICE HAS BEEN ISSUED FOR HAVING CONCEALED THE PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTI CULARS OF SUCH INCOME . WE NOTE THAT IN A SIMILAR CASE, THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS MANJUNATHA COTTON AND GINNING FACTORY REPORTED IN (2013) 359 I TR 565 (KAR) HAS CANCELLED THE PENALTY TAKING NOTE OF THE FACT THAT THE PENALTY NO TICE DID NOT SPELL OUT CLEARLY AS TO WHETHER THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME OR HAS FURNISHED INACCURATE PARTICULARS OF INCOME. WE ALSO FIND THAT HONBLE KARNATAKA HIGH COURT IN THE CAE OF CIT VS SSAS EMERALD MEADOWS, REPORTED IN (2016) 73 TAXMANN.COM 241 (KAR) ENDORSED THE SAME VIEW IN MANJUNATHA COTTON AND GIN NING FACTORY (SUPRA) AND HELD AS UNDER:- 3. THE TRIBUNAL HAS ALLOWED THE APPEAL FILED BY TH E ASSESSEE HOLDING THE NOTICE ISSUED BY THE ASSESSING OFFICER UNDER SECTION 274 READ WIT H SECTION 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 PROCEEDI NGS 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 CA SE OF CIT VS MANJUNATHA COTTON AND GINNING FACTORY REPORTED IN (2013) 359 ITR 565 / 21 8 TAXMAN 423 / 35 TAXMANN.COM 250 (KAR). 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 ACCORDIN GLY DISMISSED. WE ALSO FIND THAT THE AFORESAID ORDER OF THE HONBL E HIGH COURT WAS CHALLENGED BY THE DEPARTMENT BEFORE THE HONBLE SUPREME COURT BY PREFERRING A SPECIAL LEAVE PETITION 3 ITA NO.1060/KOL/2015 M/S BAGRI IMPEX LTD. A.YR.2006-07 3 (SLP) WHICH HAS BEEN DISMISSED WHICH FACT HAS BEEN REPORTED IN (2016) 73 TAXMANN.COM 248 (SC) . 4. WE NOTE THAT SINCE THE PENALTY NOTICE ISSUED TO THE ASSESSEE DATED 31.12.2009 DID NOT SPELL OUT AS TO WHICH DEFAULT THE ASSESSEE HAS COMM ITTED FOR WHICH PENALTY U/S 271(1)(C ) OF THE ACT HAS BEEN INITIATED, THEREFORE, RESPECTFU LLY FOLLOWING THE HONBLE KARNATAKA HIGH COURTS ORDER IN MANJUNATHA COTTON AND GINNING FACTORY (SUPRA) AND SSAS EMERALD MEADOWS (SUPRA) , WE CANCEL THE PENALTY IMP OSED BY THE LD AO WHICH HAS BEEN RIGHTLY DELETED BY THE LD CITA, THOUGH THE PEN ALTY HAS BEEN DELETED BY THE LD CITA ON A DIFFERENT GROUND. HOWEVER WE PROCEED TO DISMI SS THE GROUNDS OF THE REVENUE ON THE PRELIMINARY ASPECT OF ISSUANCE OF DEFECTIVE NOT ICE FOR LEVY OF PENALTY AND REFRAIN TO EXPRESS ANY OPINION ON THE MERITS OF THE CASE. AC CORDINGLY, THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE COURT ON 11.08.2017 SD/- S D/- [A.T. VARKEY] [ M.BALAGANESH ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 11.08.2017 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. I.T.O., WARD8(1), KOLKATA, P-7, CHOWRINGHEE SQUA RE, 5 TH FLOOR, KOL-700069 2. M/S BAGRI IMPEX PVT. LTD., 207, MAHARSI DEBENDRA ROAD, 3 RD FLOOR, ROOM NO.-66, KOL- 700007 3..C.I.T.(A)-11, KOLKATA 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVAT E SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHE S