G Shivakumar , Bangalore V. Income Tax Officer Ward-8(2), Bangalore

ITA 1075/BANG/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7323 (ITAT-BANGALORE)
• Duration Of Justice: 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-11-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 15-05-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PADMA MEENAKSHI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCHES B, BANGALORE BEFORE SHRI A.K.GARODIA, AM & SHRI GEORGE GEORGE K, JM ITA NO.1075/BANG/2017 : ASST.YEAR 2009-2010 SHRI G SHIVAKUMAR C/O.BALU & ANAND CHARTERED ACCOUNTANTS NO.46/2, 1 ST FLOOR, 4 TH CROSS MALLESWARAM BANGALORE 560 003. PAN : BBKPS5780H THE INCOME TAX OFFICER WARD 8(2) BENGALURU. (APPELLANT) VS. (RESPONDENT) APPELLANT BY : --- NONE --- RESPONDENT BY : SMT.PADMAMEENAKSHI, JCIT DATE OF HEARING : 30.10.2017 DATE OF PRONOUNCEMENT : 03.11.2017 O R D E R PER GEORGE GEORGE K, JM THIS APPEAL AT THE INSTANCE OF THE ASSESSEE IS DIR ECTED AGAINST THE CIT(A)S ORDER DATED 31.01.2017 UPHOLDI NG PENALTY IMPOSED BY THE ASSESSING OFFICER U/S 271(1)(C) OF T HE ACT. THE RELEVANT ASSESSMENT YEAR IS 2009-2010. 2. THE GROUNDS RAISED READ AS FOLLOWS:- THE APPELLANT OBJECTS TO THE ORDER OF THE COMMISS IONER OF INCOME TAX (A) -6,BANGALORE, ON THE FOLLOWING GROUN DS: 1. THAT THE IMPUGNED ORDER IS OPPOSED TO THE FACTS AND LAW INSOFAR AS IT IS PRE-JUDICIAL TO THE INTEREST O F THE APPELLANT. ITA NO.1075/BANG/2017. SHRI G SHIVAKUMAR. 2 2. THE IMPUGNED PENALTY ORDER IS PASSED IN PURSUANC E OF PROCEEDINGS WHICH IS NULL AND VOID IN THE EYES O F LAW FOR THE FOLLOWING REASONS: (A) THAT THERE IS NO RECORDING OF SATISFACTION OF CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS BY THE ASSESSING OFFICER IN THE ASSESSM ENT ORDER. (B) THE NOTICE U/S 274 ISSUED BY THE LD. AO IS INCONSISTENT WITH THE LAW LAID DOWN BY THE HONOURAB LE JURISDICTIONAL HIGH COURT AND THUS RENDERING THE PROCEEDINGS INVALID. (C) THE IMPUGNED PENALTY ORDER FIRST PASSED BY THE ASSESSING OFFICER WITHOUT GIVING NOTICE IN CHANGE O F INCUMBENT IN OFFICE AS REQUIRED UNDER SEC 129 OF TH E INCOME TAX ACT, 1961. WITHOUT PREJUDICE TO THE ABOVE GROUNDS, THE APPELLA NT SUBMITS AS FOLLOWS: 3. THAT THE LD CIT(A) ERRED IN CONFIRMING THE PENAL TY UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT,1961 AND IN DOING SO FAILED TO APPRECIATE THE FOLLOWING: (A) THAT THE DIFFERENCE IN THE AMOUNT SHOWN IN FORM 26AS WAS NOT THE ACTUAL AMOUNT RECEIVED BY THE APPEL LANT IN THE COURSE OF HIS BUSINESS AND THE AMOUNT UPLOAD ED BY THE DEDUCTOR WAS BEYOND THE CONTROL OF APPELLANT. (B) THAT THE APPELLANT CHOSE NOT TO FILE AN APPEAL AGAINST THE ADDITION MADE TO THE INCOME ONLY IN ORDER TO AV OID PROLONGED LITIGATION AND THIS BY ITSELF DOES NOT TA NTAMOUNT TO ADMISSION OF CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS SO AS TO ATTRACT PENALTY. 4. WITHOUT PREJUDICE TO AND IN ADDITION TO 1 TO 3 A BOVE IT IS SUBMITTED THAT THE ORDER OF PENALTY PASSED BY THE L D. AO IS BAD IN LAW AND SUFFERS FROM LEGAL INFIRMITY INAS MUCH AS THE APPROVAL FOR THE SAME WAS GRANTED BY THE LD. ADDITIONAL COMMISSIONER OF INCOME TAX WITHOUT AFFORD ING ITA NO.1075/BANG/2017. SHRI G SHIVAKUMAR. 3 AN OPPORTUNITY TO THE ASSESSEE TO PRESENT HIS CASE BEFORE HIM WHICH IS VIOLATION OF PRINCIPLES OF NATURAL JUS TICE. 5. THE APPELLANT PRAYS FOR LEAVE TO ADD, MODIFY, DE LETE OR INTRODUCE ADDITIONAL GROUNDS OF APPEAL AT ANY TIME BEFORE THE APPEAL IS DISPOSED OFF. BASED ON THESE AND SUCH OTHER GROUNDS THAT MAY BE ADDUCED FROM TIME TO TIME, THE APPELLANT REQUESTS T HE HONOURABLE INCOME TAX APPELLATE TRIBUNAL TO CONSIDE R THE PETITION IN THE LIGHT OF PRINCIPLES OF JUSTICE AND CANCEL THE PENALTY ORDER CONFIRMED BY THE COMMISSIONER OF INCO ME TAX. 3. THE BRIEF FACTS OF THE CASE ARE AS FOLLOWS:- 3.1 DURING THE COURSE OF ASSESSMENT PROCEEDINGS, TH E ASSESSING OFFICER OBSERVED THAT THE ASSESSEE IN HIS PROFIT AND LOSS ACCOUNT HAS SHOWN INCOME FROM COMMISSION OF RS.13,65,973. HOWEVER, AS PER THE INFORMATION AVAIL ABLE WITH THE DEPARTMENT, THE ASSESSEE HAD EARNED COMMISSION OF RS.17,19,121 DURING THE YEAR UNDER CONSIDERATION. W HEN THE ASSESSEE WAS ASKED TO CLARIFY THE DIFFERENCE, HE AG REED FOR THE ADDITION OF THE DIFFERENTIAL AMOUNT OF RS.3,53,148. HENCE, THIS AMOUNT WAS BROUGHT TO TAX. IT WAS ALSO NOTICED BY T HE ASSESSING OFFICER THAT THE ASSESSEE HAS NOT DECLARE D CONTRACT RECEIPT OF RS.92,758. THE ASSESSEE, DURING THE COUR SE OF HEARING, AGREED FOR THIS AMOUNT ALSO FOR ADDITION. CONSEQUENTLY, THE ASSESSING OFFICER LEVIED PENALTY @ 100% OF THE TAX SOUGHT TO BE EVADED, AT RS.1,33,771. 3.2 THE CIT(A) CONFIRMED THE PENALTY LEVIED BY THE ASSESSING OFFICER. ITA NO.1075/BANG/2017. SHRI G SHIVAKUMAR. 4 4. NONE WAS PRESENT ON BEHALF OF THE ASSESSEE. HOWE VER, WE PROCEED TO DISPOSE OF THE SAME AFTER HEARING THE LE ARNED DEPARTMENTAL REPRESENTATIVE. 5. AFTER HEARING THE LEARNED DR AND PERUSING THE RE LEVANT MATERIAL ON RECORD, WE FIND THAT BOTH THE AUTHORITI ES BELOW HAVE RIGHTLY LEVIED AND CONFIRMED THE PENALTY. THUS , WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A) UPHOL DING THE PENALTY LEVIED BY THE ASSESSING OFFICER. THE SAME I S UPHELD. IT IS ORDERED ACCORDINGLY. 6. IN THE RESULT, THE APPEAL BY THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED ON THIS 03 RD DAY OF NOVEMBER , 2017. SD/- SD/- (A.K.GARODIA) (GEORGE GEORGE K.) ACCOUNTANT MEMBER JUDICIAL MEMBER BANGALORE ; DATED : 03 RD NOVEMBER, 2017. DEVDAS* COPY OF THE ORDER FORWARDED TO : TRUE COPY BY ORDER, (ASSTT. REGISTRAR) ITAT, BANGALORE 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT, BENGALURU. 4. CIT(A)-6, BENGALURU 5. DR, ITAT, BANGALORE 6. GUARD FILE.