M/s. Shree Sai Associates, Bhubaneswar V. ITO, Ward-4(1), Bhubaneswar

ITA 112/CTK/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 4361 (ITAT-CUTTACK)
• Duration Of Justice: 10 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 15-02-2018
• Assessment Year: 2012-2013
• Appeal Filed On: 20-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K PRADHAN
• Assessee Lawyers: P R MOHANTYC R JENA

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI N.S.SAINI, AM & SHRI PAV AN KUMAR GADALE, JM ./ ITA NO. 112 / CTK /20 1 7 ( / ASSESSMENT YEAR : 2012 - 2013 ) M/S SHREE SAI ASSOCIA TES, PLOT NO.137C, ASHOK NAGAR BHUBANESWAR - 751009 VS. ITO, WARD - 4(1), BHUBANESWAR ./ PAN NO. : A BQFS 9715 F ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI P.R.MOHANTY/C.R.JENA , AR /REVENUE BY : SHRI D.K.PRADHAN , CITDR / DATE OF HEARING : 1 5 / 0 2 /201 8 / DATE OF PRONOUNCEMENT 15 / 0 2 /201 8 / O R D E R PER SHRI N.S.SAINI , A M : TH IS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT( A ) - 2 , BHUBANESWAR DATED 22.12.2016 FOR THE ASSESSMENT YEAR 2012 - 2013. 2 . THE SOLE ISSUE INVOLVED IN THIS APPEAL IS THAT THE CIT(A) ERRED IN CONFIRMING THE LEVY OF PENALTY OF RS. 1,76,269/ - U/S.271(1)(C) OF THE ACT. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL ENGAGED IN THE BUSINESS OF MOBILES AND ACCESSORIES. THE RETURN OF INCOME WAS FILED ON 02.03.2013 AT AN INCOME OF RS.1,05,460/ - . THE ASSESSMENT WAS COMPLETED U/S.143(3) OF THE ACT ON 23.03.2015 AT AN INCOME OF RS.6,74,940 / - BY MAKING ADDITION ON ACCOUNT OF SUNDRY CREDITORS FOR RS.5,69,48 1/ - . THERE AFTER THE AO LEVIED PENALTY FOR CONCEALMENT OF INCOME U/S.271(1)(C) OF THE ACT OF RS.1,76,269/ - . ITA NO. 112 /2017 2 4. ON APPEAL, THE CIT(A) CONFIRMED THE ACTION OF ASSESSING OFFICER. 5. THE AR OF T HE ASSESSEE FILED BEFORE US A COPY OF DIRECT TAX DISPUTE RESOLUTION SCHEME, 2016 , WHERE IT WAS PROVIDED THAT IN CASE OF A PENALTY APPEAL, THE SAME CAN BE RESOLVED ON PAYMENT OF 25% PROVIDED THE TAX AND ALL INTEREST DUE HAVE BEEN PAID. HE SUBMITTED THAT PUR SUANCE TO THIS DIRECT TAX DISPUTE RESOLUTION SCHEME, 2016, THE ASSESSEE DEPOSITED 25% OF THE PENALTY AMOUNTING TO RS.44,070/ - ON 7 TH JANUARY, 201 7 AND HAS FILED A COPY OF CHALLAN OF STATE BANK OF INDIA, CHANDAKA BRANCH, BHUBANESWAR IN SUPPORT OF THE SAME. HE ALSO FURNISHED EVIDENCE OF PAYING THE TAX AND INTEREST OF RS.2,51,640/ - IN THE FORM OF SBI CHALLAN DATED 04.06.2015 & 19.08.2015 FOR R S.70,000/ - AND RS. 1,81,640/ - , AGGREGATING TO RS.2,51,640/ - , WHICH IS TOTAL DEMAND DETERMINED BY THE AO VIDE ORDER DATED 23.03.2015 PASSED U/S.143(3) OF THE ACT. HENCE, IT WAS HIS SUBMISSION THAT NO PENALTY U/S.271(1)(C) OF THE ACT WAS FURTHER LEVIABLE ON THE ASSESSEE AND THE SAME SHOULD BE DELETED. 6. THE DR, ON THE OTHER HAND, COULD NOT CONTROVERT THE SUBMISSIONS MADE BY THE AR OF THE ASSESSEE. 7. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. THE UNDISPUTED FACTS OF THE CASE ARE THAT IN THE ASSESSMENT MADE IN THE ASSESSMENT YEAR 2012 - 2013 THE AO MADE ADDITION OF RS.5,69,481/ - UNDER THE HEAD SUNDRY CREDITORS. THERE AFTER , HE LEVIED PENALTY U/S.271(1)(C) OF THE ACT FOR CONCEALMENT OF INCOME OF RS.1,76,269/ - , WHICH WAS CONFIRMED IN APPEAL BY THE CIT(A) VIDE ORDER DATED 22.12.2016. THE AR OF THE ASSESSEE HAS FILED A COPY OF ITA NO. 112 /2017 3 DIRECT TAX DISPUTE RESOLUTION SCHEME, 2016, WHEREIN IN PARA 2 , IT HAS BEEN PROVIDED THAT THE SCHEME PROVIDES FOR RELIEF IN THE FOLLOWING WAYS : - (I) XXXXXXX (II) XXXXXXX (III) XXXXXXX (IV) I N CASE OF A PENALTY APPEAL, THE SAME CAN BE RESOLVED ON P AYMENT OF 25% PROVIDED THE TAX AND ALL INTEREST DUE HAVE BEEN PAID. THE ASSESSEE HAS PRODUCED THE EVIDENCE IN THE FORM OF ASSESSMENT ORDER PASSED U/S.143(3) OF THE ACT, WHEREIN THE AO HAS DETERMINED TAX AND INTEREST OF RS.2,51,640/ - . THE ASSESSEE HAS ALSO FILED A COPY OF CHALLAN OF SBI FOR PAYMENT OF THE SAID AMOUNT. THE ASSESSEE HAS FURTHER FILED A COPY OF BANK CHALLAN OF STATE BANK OF INDIA DATED 07.01.2017 DEPOSITED 25% OF THE PENALTY LEVIED OF RS.1,76,269/ - AMOUNTING TO RS.44,070/ - UNDER THE DIRECT TAX DISPUTE RESOLUTION SCHEME, 2016. HENCE, NO FURTHER PENALTY OF RS.1,76,269/ - UNDER SECTION 271(1) (C) OF THE ACT IS LEVIABLE ON THE ASSESSEE. THE DR HAS NOT CONTROVERTED THE SUBMISSION OF THE AR B Y BRINING ANY COGENT AND POSITIVE MATERIAL ON RECORD. HENCE, WE SET ASIDE THE ORDER S OF LOWER AUTHORITIES AND DELETE THE PENALTY OF RS.1, 76 , 269 / - AND ALLOW THE GROUND OF APPEAL OF ASSESSEE. 8 . IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED. ORDER PRONOUNCED IN THE COURT ON THURSDAY THE 15 TH DAY OF FEBRUARY, 2018 AT CUTTACK. SD/ - ( PAVAN KUMAR GADALE ) SD/ - (N. S. SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER C UTTACK ; DATED 15 / 02 /201 8 . . / PKM , SENIOR PRIVATE SECRETARY ITA NO. 112 /2017 4 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. / THE APPELLANT - M/S SHREE SAI ASSOCIATES, PLOT NO.137C, ASHOK NAGAR BHUBANESWAR - 751009 2. / THE RESPONDENT - ITO, WARD - 4(1), BHUBANESWAR 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//