Shri Ashoke Das, Kolkata V. I.T.O Wd - 53(3),kolkata, Kolkata

ITA 1073/KOL/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4782 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 2 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 06-05-2013
• Court: TRIBUNAL
• Department Lawyers: SHRISELL ONGYADEN CIT L
• Assessee Lawyers: S M SURANA
• Keywords: Question of law; Initiation of penalty proceedings
• Section: 143(3)

Judgement Text

1 ITA NO. 1073/KOL /2013 SHRI ASHOKE DAS IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, K OLKATA BEFORE : SHRIP.M.JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, J UDICIAL MEMBER I.T.A NO. 1073/KOL/2013 A.Y. 2005-06 SHRI ASHOK DAS VS. I.T.O, WD-53(3), KOLKATA PAN: AEXPDO724M (APPELLANT) (RES PONDENT) FOR THE APPELLANT/ASSESSEE :SHRI S.M.SURANA, ADVOCATE FOR THE RESPONDENT/DEPARTMENT:SHRISELL ONGYADEN, ADDL CIT, LD.DR DATE OF HEARING: 11-07-2016 DATE OF PRONOUNCEMENT: 03-08-201 6 ORDER SHRI S.S. VISWANETHRA RAVI, JM THIS APPEAL OF THE ASESSEE ARISES OUT OF THE ORDER OF THE CIT(A)-XXXIII, KOLKATA IN APPEAL NO. 430/CIT-XXXIII/ITO. WD-53(2), KOL/09- 10 DATED 26-02-2013 FOR THE ASSESSMENT YEAR 2005-06 CONFIRMING THE ORDER OF PEN ALTY LEVIED U/S. 271(1) ( C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS TH E ACT). 2. THE GROUNDS RAISED THEREIN CAN BE READ TOGETHER AND THE ONLY GROUND IN THIS APPEAL REMAINS FOR OUR CONSIDERATION IS AS TO WHETH ER CIT-A JUSTIFIED IN CONFIRMING THE PENALTY LEVIED BY THE AO U/S 271(1)(C) IN THE CIRCU MSTANCES OF THE CASE. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL. THE ASSESSEE FILED HIS RETURN OF INCOME ON 31-10-2005 DECLARING TOTAL INCOME OF RS.7,69,390/-. UNDER 2 ITA NO. 1073/KOL /2013 SHRI ASHOKE DAS SCRUTINYPROCEEDINGS, THE AO FOUND THAT THE ASSESSEE EARNED INCOME UNDER THE HEAD COMMISSION FROM NET WORKING BUSINESS, CAPITAL GAIN IN SHARES, INCOME OTHER SOURCES AND LOSS FROM HOUSE PROPERTY AND DETERMINED INCOME OF AT RS.80,96,110/- AND AN ASSESSMENT ORDER DT:26-12-07 WAS PASSED U/SEC 143(3 ) ADDING SUCH AMOUNT TO THE TOTAL INCOME OF THE ASSESSEE.. THE ASSESSING OFFICER HAS INITIATED THE PENALTY PROCEEDINGS U/S. 271(1) (C) FOR NOT DISCLOSING THE INCOME OF TH E ASSESSE AND LEVIED PENALTY OF RS.25,08,485/- U/SEC 271(1)(C) OF THE ACT. AGGRIEVE D, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A). THE CIT(A) CONFIRMED THE ORDER O F THE ASSESSING OFFICER IN IMPOSING PENALTY U/S. 271(1)( C) OF THE ACT. AGGRIE VED, THE ASSESSEE IS IN APPEAL BEFORE US. 4. DURING THE COURSE OF ARGUMENTS THE LD. AR FOR TH E ASSESSEE SUBMITTED THAT NO SATISFACTION WAS RECORDED BY THE AO IN ASSESSMENT O RDER DT. 24-12-2007 FRAMED U/S. 143(3) OF THE ACT IS AS TO WHETHER THE ASSESSEE FOU ND GUILTY IN CONCEALMENT OF INCOME OR FOR FURNISHING OF INACCURATE PARTICULARS OF INCO ME IN RESPECT OF LONG TERM CAPITAL GAIN OR SHORT TERM CAPITAL GAIN. FUTHER, LD.A/R ARG UED THAT WHISPER OR WHATSOEVER MADE BY THE AO THAT ABOUT THE INITIATION OF PENALTY PROCEEDINGS IN THE SAID ASSESSMENT ORDER. THE LD.A/R ARGUED THAT THE ASSESSEE PREFERRE D AN APPEAL BEFORE THE HONBLE HIGH COURT OF CALCUTTA AGAINST THE ORDER DATED 1-5-2009 PASSED BY B BENCH OF KOLKATA TRIBUNAL, WHEREIN THE TRIBUNAL CONFIRMED THE QUANTU M OF ADDITIONS MADE BY THE AO AND FURTHER SUBMITTED THAT THE HONBLE HIGH COURT W AS PLEASED TO ADMIT THE SAID APPEAL BEING IN ITAT NO.9 OF 2012 AND PLACED A COPY OF SU CH ORDER BEFORE US. THE LD. A/R ARGUED THAT THE ADDITIONS MADE BY THE AO IS DEBATAB LE IN VIEW OF THE ADMISSION OF ASSESSEES OWN APPEAL BY THE HONBLE CALCUTTA HIGH COURT. 3 ITA NO. 1073/KOL /2013 SHRI ASHOKE DAS 5. COMING TO THE DECISION PLACED ON RELIANCE BY THE LD.A/R IN SUPPORT OF HIS CONTENTIONS, WE FIND THAT A SIMILAR ISSUE HAS COME BEFORE ITAT MUMBAI BENCH, WHEREIN THE TRIBUNAL OBSERVED THAT THE PENALTY CANN OT BE LEVIED U/S. 271(1) ( C) FOR THE REASONS ADMISSION OF APPEAL OF ASSESSEE BY THE HON BLE HIGH COURT OF BOMBAY. THE RELEVANT PORTION OF HONBLE HIGH COURT SUPRA WHICH IS REPRODUCED AS UNDER:- HAVING HEARD MR AHUJA, LEARNED COUNSEL APPEARING O N BEHALF OF THE APPELLANT, WE FIND THAT THIS APPEAL CANNOT BE ENTER TAINED AS IT DOES NOT RAISE ANY SUBSTANTIAL QUESTION OF LAW. THE IMPO SITION OF PENALTY WAS FOUND NOT TO BE JUSTIFIED AND THE APPEAL WAS AL LOWED. AS A PROOF THAT THE PENALTY WAS DEBATABLE AND ARGUABLE ISSUE, THE TRIBUNAL REFERRED TO THE ORDER ON ASSESSEE'S APPEAL IN QUANT UM PROCEEDINGS AND THE SUBSTANTIAL QUESTIONS OF LAW WHICH HAVE BEE N FRAMED THEREIN. WE HAVE ALSO PERUSED THAT ORDER DATED 27TH SEPTEMBE R 2010 ADMITTING INCOME TAX APPEAL NO.2368 OF 2009. IN OUR VIEW, THERE WAS NO CASE MADE OUT FOR IMPOSITION OF PENALTY AND THE SAME WAS RIGHTLY SET ASIDE. THE APPEAL RAISES NO SUBSTANTIAL QUESTIO N OF LAW, IT IS DISMISSED. NO COSTS 6. WE FIND THAT FROM THE AFOREMENTIONED CASE WHEN HIGH COURT ADMITS SUBSTANTIAL QUESTION OF LAW ON AN ADDITION, IT BECO MES APPARENT THAT THE ADDITION IS CERTAINLY DEBATABLE AND IN SUCH CIRCUMSTANCES THE H ONBLE HIGH COURT SUPRA HELD PENALTY CANNOT BE LEVIED U/S 271(1)(C) OF THE ACT. WE FIND THAT IN THE PRESENT CASE AS RIGHTLY POINTED OUT BY THE LD.AR THAT THE APPEAL PREFERRED BY THE ASSESSEE HAS BEEN ADMITTED BY THE HONBLE HIGH COURT OF CALCUTTA , WHICH IS EVIDENT FROM THE COPY OF SUCH ORDER PLACED BEFORE US. THEREFORE, THE IMPOSITION OF PENALTY HAS BECOME DEBATABLE AND ARGUABLE. IN OUR VIEW, IN TH E LIGHT OF THE DECISION OF HONBLE BOMBAY HIGH COURT SUPRA RELIED ON BY THE LD.AR THE RATIO LAID DOWN THEREIN IS CLEARLY APPLICABLE TO THE FACTS OF THE PRESENT CASE. RESPECTFULLY FOLLOWING THE SAME, THE GROUNDS RAISED BY THE ASSESSEE ARE AL LOWED. 4 ITA NO. 1073/KOL /2013 SHRI ASHOKE DAS 7. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOW ED. ORDER PRONOUNCED IN OPEN COURT ON 03 /08/2016 COPY OF THE ORDER FORWARDED TO: 1.. THE APPELLANT/ASSESSEE :SRI.ASHOKE DAS ,NABAGRAM, PANCHPOTA, KOLKATA -700152 2 THE RESPONDENT/DEPARTMENT- I.T.O,WARD-53(2) -XII I , KOLKATA 3 /THE CIT(A) 4. CIT 5. DR, KOLKATA BENCH 6. GUARD FILE. TRUE COPY, BY ORDER,ASSTT REGISTRAR ** PRADIP SPS SD/- P.M.JAGTAP ACCOUNTANT MEMBER SD/- S S.S.VISWANETHRA RAVI J JUDICIAL MEMBER DATE 03 /08/2016