ACIT, CIR-29, KOLKATA, Kolkata V. Shree Gopal Choudhary, Kolkata

ITA 1072/KOL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1354 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 06-09-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 04-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KALYAN NATH
• Assessee Lawyers: AKKAL DUDHEWEWALA ACA

Judgement Text

1 ITA NO.1072/KOL/2015 SHREE GOPAL CHOUDHARY, AY 2007-08 , D , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: KOL KATA () BEFORE .., /AND . ' # $% % , ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] I.T.A. NO. 1072/KOL/2015 ASSESSMENT YEAR: 2008-08 ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-29, KOLKATA. VS. SHREE GOPAL CHOUDHARY (PAN: ACRPC8786G) APPELLANT RESPONDENT DATE OF HEARING 06.09.2017 DATE OF PRONOUNCEMENT 04.10.2017 FOR THE APPELLANT SHRI KALYAN NATH, ADDL. CIT, DR FOR THE RESPONDENT SHRI AKKAL DUDHEWEWALA, ACA ORDER PER SHRI A.T.VARKEY, JM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A)-8, KOLKATA DATED 11.05.2015 FOR AY 2007-08 DELETING THE PENALT Y IMPOSED BY THE AO U/S. 271(1)(C) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO A S THE ACT). 2. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE AS SESSEE DREW OUR ATTENTION TO THE NOTICE U/S. 274 OF THE ACT R.W.S. 271 OF THE ACT DATED 30. 04.2014 SERVED ON THE ASSESSEE WHEREIN WE NOTE THAT THE AO HAS NOT STRUCK DOWN THE LIMB OF CH ARGE/DEFAULT FOR WHICH 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 PARTICULARS OF SUCH INCOME. WE NOTE THAT IN A SIMILAR CASE, THE HONBLE HIGH CO URT OF KARNATAKA IN THE CASE OF CIT VS MANJUNATHA COTTON AND GINNING FACTORY REPORTED IN ( 2013) 359 ITR 565 (KAR) HAS CANCELLED THE PENALTY TAKING NOTE OF THE FACT THAT THE PENALTY NOTICE DID NOT SPELL OUT CLEARLY AS TO WHETHER THE ASSESSEE HAS CONCEALED THE PARTIC ULARS OF INCOME OR HAS FURNISHED INACCURATE PARTICULARS OF INCOME. WE ALSO FIND THAT HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. SSAS EMERALD MEADOWS, REPORTED IN (2016) 73 TAXMANN.COM 241 (KAR) 2 ITA NO.1072/KOL/2015 SHREE GOPAL CHOUDHARY, AY 2007-08 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 T HE 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 B EEN 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 ASSESSEE , HAS RELIED ON THE DECISION OF THE DIVISION BENCH OF THIS COURT RENDERED IN THE CASE O F CIT VS. MANJUNATHA COTTON & GINNING FACTORY (2013) 359 ITR 565/218 TAXMAN 423/35 TAXMAN N.COM 250(KAR). 4. IN OUR VIEW, SINCE THE MATTER IS COVERED BY JUD GMENT OF THE DIVISION BENCH OF THIS COURT, WE ARE OF THE OPINION, NO SUBSTANTIAL QUESTION OF L AW ARISES IN THIS APPEAL FOR DETERMINATION BY THIS COURT. THE APPEAL IS ACCORDINGLY 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 PREF ERRING AN SLP WHICH HAS BEEN DISMISSED WHICH FACT HAS BEEN REPORTED IN CIT VS. S SAS EMERALD MEADOWS (2016) 73 TAXMANN.COM 248 (SC). 3. WE NOTE THAT SINCE THE PENALTY NOTICE ISSUED TO THE ASSESSEE DATED 30.04.2014 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, RESPECTFULLY FOLLOWING THE HONBLE KARNATAKA HIGH COURTS ORDER IN MANJUNATHA COTTON & GINNING FACTOR Y (SUPRA) AND SSAS EMERALD MEADOWS (SUPRA), WE CANCEL THE PENALTY IMPOSED BY T HE AO. WE ALSO FIND THAT THE LD. CIT(A) HAS RIGHTLY DELETED THE PENALTY BY OBSERVING THAT PROVISIONS OF SEC. 271(1)(C) OF THE ACT IS ATTRACTED IF THE ASSESSEE CONCEALS INCOME OR FURNISHES INACCURATE PARTICULARS OF INCOME. ACCORDING TO HIM, NO SUCH INSTANCE HAS BEE N FOUND IN THIS CASE. HE THEREFORE DELETED THE PENALTY BY FOLLOWING THE VARIOUS JUDICI AL DECISIONS CITED IN HIS ORDER. THEREFORE, WE AFFIRM THE VIEW OF THE LD. CIT(A) ON THE AFORESA ID VIEW OF THE HONBLE HIGH COURTS CITED SUPRA ALSO AND, THEREFORE, APPEAL OF THE REVE NUE IS DISMISSED. 4. IN THE RESULT, APPEAL OF REVENUE IS DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 04.10.2 017 SD/- SD/- (DR. A. L. SAINI) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 4 TH OCTOBER, 2017 JD.(SR.P.S.) 3 ITA NO.1072/KOL/2015 SHREE GOPAL CHOUDHARY, AY 2007-08 COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT ACIT, CIRCLE-29, KOLKATA 2 RESPONDENT SHREE GOPAL CHOUDHARY, 16F, JUDGES COU RT ROAD, KOLKATA- 700 027. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, SR. PVT. SECRETARY