Sahida Khatun C/o-V.N. Purohit & Co.,C.A, Kolkata V. ITO, Ward-49(1), Kolkata, Kolkata

ITA 1077/KOL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99800 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 1 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2015
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 28-08-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 20-07-2012
• Court: TRIBUNAL
• Department Lawyers: A MITABH CHOUDHURIADD
• Assessee Lawyers: V N PUROHIT FCA LD

Judgement Text

ITA NO.1077/KOL/2012 - B - AM SAHIDA KHATUN 1 IN THE INCME TAX APPELLATE TRIBUNAL, B BENCH, KOLKATA BEFORE : SHRI MAHAVIR SINGH ,JUDICIAL MEMBER, AND SHRI M. BALAGANESH , ACCOUNTANT MEMBER I.T.A NO. 1077 /KOL/201 2 A.Y 200 5 - 06 SAHIDA KHATUN VS. I.T.O W ARD 49(1), KOLKATA L/R O F LATE ASHARAF H U SSAIN BISWAS PAN: AEWPB3031L ( APPELLANT ) ( RESPONDENT ) FOR THE APPELLANT/ASSESSEE: SHRI V.N. PUROHIT, FCA , LD.AR FOR THE RESPONDENT/DEPARTMENT : SHRI A MITABH CHOUDHURI,ADDL.CIT DATE OF HEARING: 25 - 08 - 2015 DATE OF PRONOUNCEMENT: 16.9 - 2015 ORDER SHRI M.BAL A GANESH, AM THIS APPEAL OF THE ASSESSEE ARISES OUT OF THE ORDER OF LD. CIT(A), KOLKATA IN APPEAL NO. 43 / CIT(A) - XX XII / 11 - 12/49(1)/KOL DATED 21 - 05 - 2012 ARISING OUT OF THE L D. AO ORDER OF PENALTY FRAMED U/S 271(1)( C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) VIDE HIS ORDER DATED 31 - 05 - 2011 FOR THE ASSESSMENT YEAR 200 5 - 06 . 2. BRIEF FACTS OF TH IS ISSUE ARE THAT SMT. SAHIDA KHATUN( THE ASSESSEE HEREIN) IS ASSESS ED IN THE CAPACITY U/S. 159 OF THE ACT AS LEGAL HEIR OF LATE ASHARAF H U SSAIN BISWAS AND ASSESSMENT WAS COMPLETED U/S. 143(3)/159 OF THE ACT ON 28 - 12 - 2007. ONE SUCH ADDITION MADE IN THE ASSESSMENT WAS TOWARDS UNEXPLAINED INVE STMENT IN FDR MADE ON 7 - 8 - 04 TO THE TUNE OF RS. 1 LAKH WHICH GOT SUSTAINED , F INALLY IN THE SET ASIDE ASSESSMENT PROCEEDINGS OF ITAT AND ACCORDINGLY, LD. AO PROCEEDED TO LEVY THE PENALTY U/S. 271( 1) (C) OF THE ACT IN THE SUM OF RS.30,600/ - BEING 100% OF T AX SOUGHT TO BE EVADED. ON 1 ST APPEAL, THE LD. CIT(A) UPHELD THE LEVY OF PENALTY U/S. 271(1)(C ) OF THE ACT. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUND : - ITA NO.1077/KOL/2012 - B - AM SAHIDA KHATUN 2 1. THAT FOR THE FACTS AND CIRCUMSTANCES OF THE CASE THE COMMISSION ER OF INCOME TAX (APPEAL) - XXXII HAS ERRED THAT IN HIS VIEW APPELLANT CONCEALED THE INCOME TO THE TUNE OF RS. 1 LAKH AND THEREBY UPHOLDING THE PENALTY ORDER PASSED BY ITO IMPOSING PENALTY OF RS.30,600/ - 3 . SHRI V.N. PUROHIT, FCA, LD. LD.AR ARGUED ON BEHALF OF THE ASSESSEE AND SHRI A MITABH CHOUDHURI , LD. ADDL. CIT/DR ARGUED ON BEHALF OF THE REVENUE. 4 . THE LD.AR ARGUED THAT THE ASSESSEE IS ONLY ASSESSED AS LEGAL HEIR OF LATE ASHARAF H U SSAIN BISWAS. HE ARGUED THAT HER HUSBAND DIED IN A ROAD ACCIDENT IN BANGLADESH ON 2 1 - 04 - 20 06 AND THE ASSESSEE HEREIN IS SEMI LITERATE AND PURELY A HOUSEWIFE AND COMPLETELY IS NOT AWARE OF THE BOOKS , BANK ACCOUNTS OF HER HUSBAND , BUSINESS OF ASSESSEE AND INCOME - TAX COMPLIANCE THEREON , AS THEY WERE MAINTAINED EXCLU SIVELY BY HER LATE HUSBAND, WHO DIED SUDDENLY DUE TO UNFORESEEN CIRCUMSTANCES . H E FURTHER ARGUED THAT FDR WAS INVESTED ON 7 - 8 - 04 . THE SOURCE FOR THE S AME IS EXPLAINED AS WITHDRAWAL MADE BY THE ASSESSEE FROM THE BANK ON 6 - 8 - 04 TO THE TUNE OF RS. 4 LAKHS AN D OUT OF THE SAME , A SUM OF RS. 1 LAKH WAS INVESTED AS FD ON 7 - 8 - 20 04. HE FURTHER ARGUED THAT THIS ASPECT WAS NOT PROPERLY CONSIDER ED IN THE ORIGINAL ASSESSMENT PROCEEDINGS U/S. 143(3 ) OF THE ACT AND ALSO IN THE SET ASIDE ASSESSMENT PROCEEDINGS U/S. 143( 3) R.W.S 254 ON 15 - 11 - 2010. HE ALSO FAIRLY CONCEDED THAT THIS INVESTMENT IN FD TO THE TUNE OF RS. 1 LAKH WAS NOT REFLECTED IN THE BALANCE SHEET FILED BY THE ASSESSEE. HOWEVER, IMMEDIATE SOURCES FOR THE SAME ARE EXPLAINABLE FROM THE BANK WITHDRAWALS I TSELF. THE ASSESSEE HAD DULY CO - OPERATED WITH THE SET ASIDE ASSESSMENT PROCEEDINGS AND PAID FULL TAX IN RESPECT OF THE DEMAND RAISED THEREON. ACCORDINGLY, HE PRAYED BEFORE US FOR CANCELLATION OF PENALTY LEVIED OF RS.30,600/ - . IN RESPONSE TO THIS , THE L D. DR VEHEMENTLY SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. 5 . WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS SEEN THAT THE PENALTY HAS BEEN ULTIMATELY LEVIED AND SUSTAINED ONLY ON THE PREMISE THAT QUANTUM ADDITION HAS BEEN ULTIMATELY SUSTAINED. PENALTY PROCEEDINGS ARE DISTINCT AND SEPARATE FROM THE ASSESSMENT PROCEEDINGS . J UST BECAUSE AN ADDITION HAS BEEN CONFIRMED. IN APPEAL OR THE ASSESSEE DOES NOT CHALLENGE THE SAME IN APPEAL , I T DOES NOT MEAN ITA NO.1077/KOL/2012 - B - AM SAHIDA KHATUN 3 AUTOMATI CALLY THAT ASSESSEE HAD INDEED CONCEALED ANY PARTICULARS OF INCOME OR FURNISHED ANY INACCURATE PARTICULARS OF INCOME. IN THE INSTANT CASE , IT IS SEEN THAT THE ASSESSEE, SMT SAHIDA KHATUN IS A WIDOW. SHE IS TOTALLY IGNORANT OF FINANCIAL AFFAIRS OF HER HU SBAND, WHICH FACT IS ALSO STATED IN OLD ITAT S ORDER ITSELF WHILE DISPOSING OF THE QUANTUM APPEAL. THIS CRUCIAL FACT IS NOT DISPUTED BY THE LOWER AUTHORITIES. MOREOVER, IT IS SEEN THAT THE ASSESSEE BEING HOUSE WIFE IS ALSO NOT WELL CONVERSANT WITH THE PRO VISIONS OF INCOME - TAX ACT AND ALSO THE BUSINESS AFFAIRS OF HER HUSBAND . IT IS ALSO OBSERVED THAT THE ASSESSEE HAD FULLY CO - OPERATED WITH THE SET ASIDE PROCEEDINGS AND DID NOT PREFER ANY APPEAL AGAINST THE SAME AND PAID THE TAXES THEREON IN FULL. IT IS OB SERVED THAT THE ASSESSEE HAD INDEED GIVEN SOME EXPLANATION , WHICH IS CONSIDERED BONAFIDE THAT THERE IS WITHDRAWAL OF R S. 4 LAKHS ON 6 - 8 - 04 TO EXPLAIN THE SOURCE OF INVESTMENT IN FD ON 7 - 8 - 04 TO THE TUNE OF R S. 1 LAKH, WHICH FACT IS NEITHER CONSIDERED BY T HE AO NOR PROPERLY REPRESENTED BY THE ASSESSEE DURING THE SET ASIDE ASSESSMENT PROCEEDINGS. THIS DOES NOT MEAN THAT THE EXPLANATION GIVEN BY THE ASSESSEE IS NOT BONAFIDE. WE HOLD THAT THE ASSESSEE SHOULD NOT BE PENALIZED THAT THE MISTAKE , IF ANY , COMMIT TED BY HER HUSBAND. WE FIND THAT THE ASSESSEE IN THE FACTS AND CIRCUMSTANCES , DESPITE OF HER IGNORANCE OF THE FINANCIAL AFFAIRS OF HER HUSBAND AND OTHER PERSONAL GENUINE PREDICAMENTS HAD COME FORWARD BEFORE THE LD. AO WITH BONAFIDE EXPLANATION TO EXP LAIN THE SOURCE OF INVESTMENT IN FD TO THE TUNE OF RS . 1 LAKH ON 7 - 8 - 04 AND ALSO CONSIDERING THE FACTS AND CIRCUMSTANCES OF THIS CASE AND SMALLNESS OF THE AMOUNT OF PENALTY INVOLVED HEREIN , W E DIRECT THE LD. AO TO DELETE THE PENALTY LEVIED IN THE SUM O F R S.30,600/ - . 6 . IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. THIS ORDER IS PRONOUNCED IN OPEN COURT ON 16 /09/2015 SD/ - ( MAHAVIR SINGH, JUDICIAL MEMBER ) SD/ - ( M. BAL A GANESH, ACCOUNTANT MEMBER) DATE 16 /09/2015 ITA NO.1077/KOL/2012 - B - AM SAHIDA KHATUN 4 COPY OF THE ORDER FORWARDED TO: 1. . THE APPELLANT : SMT. SAHIDA KHATUN L/R OF LATE ASHARAF HOSSAIN BISWAS C/O V.N PUROHIT & CO CA DIAMOND CHAMBERS UNIT III 4 TH FL, SUIT NO.4G 4 CHOWRINGHEE LANE, KOL - 16 2 THE RESPONDENT - IT O W 49 (1) BAMBOO VILLA,KOL - 14 3 4. . / THE CIT, / THE CIT(A) 5 . DR, KOLKATA BENCH 6 . GUARD FILE . TRUE COPY, BY ORDER, ASSTT REGISTRAR ** PRADIP SPS