PRODYUT KUMAR SAHA, Kolkata V. ITO, Ward-41(3), Kolkata, Kolkata

ITA 1201/KOL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87628 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 5 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 16-08-2012
• Court: TRIBUNAL
• Department Lawyers: SANJAY
• Assessee Lawyers: T P KAR
• Keywords: Gift
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOLKATA [BEFORE SHRI MAHAVIR SINGH, JM & SHRI SHAMIM YAHYA AM ] I.T.A NO.1201 /KOL/2012 ASSESSMENT YEAR: 2005 - 06 PRODYUT KUMAR SAHA VS. I.T.O., WARD - 41(3) KOLKATA KOLKATA (APPELLANT) ( RESPO NDENT) (PAN: AOYPS 9226 C) FOR THE APPELLANT : SHRI T.P.KAR, FCA FOR THE RESPONDENT : SHRI SANJAY, ADDL.CIT, SR.DR DATE OF HEARING : 30 .01.2015. DATE OF PRONOUNCEMENT: 30.01.2015. ORDER PER SHRI SHAMIM YAHYA, AM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) - XII , KOLKATA DATED 16.04.2012 AND PERTAIN S TO ASSESSMENT YEAR 2005 - 06. 2. THE ISSUE RAISED IN THIS APPEAL IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ORDER OF PENALTY U/S 271(1)(C) OF THE IT ACT AMOUNTING TO RS.1,70,162/ - . 3. IN THIS CASE THE ASSESSEE FILED RETURN OF INCOME FOR A.YR.2005 - 06 DISCLOSING TOTAL INCOME OF RS.85,320/ - . THE CASE WAS SELECTED FOR SCRUTINY U/S 144 OF THE ACT AND AO MADE ADDITION OF RS. 5,23,969/ - . 3.1. UPON ASSESSEE S A PPEAL THE LD. CIT(A) SUSTAINED AN AMOUNT OF RS.3,04,714/ - . PENALTY PROCEEDINGS U/S 271(1)(C) OF THE I.T.ACT WAS ALSO INITIATED AND IN THE PENALTY PROCEEDINGS AO PROCEEDED TO LEVY PENALTY OF 200% OF RS.85,081/ - TAX ON THE INCOME SOUGHT TO BE EVADED AT RS.1, 70 ,162/ - . UPON ASSESSEE S APPEAL THE LD. CIT(A) AFFIRMED THE ACTION OF AO. ITA NO. 1201 /KOL/2012 PRODYUT KUMAR SAHA A.Y.2005 - 06 2 AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD BOTH THE COUNSEL AND CAREFULLY PERUSED THE RECORDS. THE ADDITION IN THIS CASE AS MADE BY THE AO AND AS AFFIRMED BY THE LD. CIT(A) IS AS UNDER : - SL.NO. NATURE OF ADDITION ADDITION MADE BY THE AO (RS.) CONFIRMED BY THE LD.CIT(A) (RS.) 1. DEPOSITS IN UBI, MALDA BRANCH FROM UNDISCLOSED SOURCE 1,07,038/ - 6,298/ - 2. UNDISCLOSED DEPOSIT IN ICICI BANK, BHOWANIPUR BRANCH 5,23,969/ - 11,678/ - 3. UNDISCLOSED DEPOSIT IN ICICI BANK 22,304/ - 2,304/ - 4. INACCURATE CLAIM OF AGRICULTURAL INCOME 1,20,320/ - 1,20,320/ - 5. INVESTMENT FROM THE UNDISCLOSED SOURCE FOR PURCHASE OF FLAT 1,61,527/ - 41,527/ - 6 . INVESTMENT FROM THE UNDISCLOSED SOURCE IN REGISTRATION CHARGES 1,08,160/ - 1,17,457/ - (ENHANCED BY LD.CIT(A) 7. INACCURATE PARTICULARS OF HOUSE PROPERTY INCOME 5,040/ - 5,040/ - TOTAL 3,04,714/ - 4.1. A PERUSAL OF THE ABOVE REVEALS THAT IN ALL THE A DDITIONS MADE BY THE AO SUBSTANTIAL RELIEF HAS BEEN GRANTED BY THE LD. CIT(A) EXCEPT FOR AGRICULTURAL INCOME AND REGISTRATION CHARGES. IN OUR CONSIDERED OPINION SINCE THE LD. CIT(A) HAS GIVEN SUBSTANTIAL RELIEF ON ACCOUNT OF OTHER ADDITIONS THE ASSESSEE CA NNOT BE SAID TO BE GUILTY OF CONCEALMENT ON THESE ACCOUNTS. 4.2. AS REGARDS THE CLAIM OF AGRICULTURAL INCOME WE FIND THAT THE ASSESSEE HAD MADE THE CLAIM WHICH WERE NOT ACCEPTED BY THE REVENUE AUTHORITIES AND HENCE IT CANNOT BE SAID THAT THERE WAS ANY CO NCEALMENT ON THIS ACCOUNT ALSO. THE ASSESEE HAS SUBMITTED THE RELEVANT DEEDS OF THE LAND ETC. BUT THE ASSESSMENT WAS MADE ON THE PLEA THAT DETAILS SUCH AS NAMES OF THE CROP GROWN, HOW MUCH AREA WAS CULTIVATED ETC. WAS NOT SUBMITTED. HENCE WE FIND THAT ON T HIS ACCOUNT ALSO THE ASSESSEE CANNOT BE VISITED WITH THE RIGOUR OF PENALTY U/S 271(1)(C) OF THE ACT. ITA NO. 1201 /KOL/2012 PRODYUT KUMAR SAHA A.Y.2005 - 06 3 4.3. AS REGARDS THE REGISTRATION CHARGES THE SAME WAS PERTAINING TO THE COST OF REGISTRATION OF THE FLAT PAID BY SMT. KUHU SAHA WIFE OF THE ASSESSEE WHO IS ALSO AN ASSESSEE AND THE FLAT WAS REGISTERED IN HER NAME. THE ASSESSEE S PLEA THAT THE REGISTRATION CHARGES WAS PAID BY HER OUT OF HER HOUSEHOLD SAVINGS AND FROM SMALL GIFTS AND PRESENTATIONS ETC. WAS NOT ACCEPTED BY THE AUTHORITIES , HENCE THE ADDITION WAS MADE ON THIS ACCOUNT ALSO. IN OUR CONSIDERED OPINION , THE NON ACCEPTANCE OF THE ASSESSEE S PLEA IN THIS REGARD CANNOT LEAD TO THE CONCLUSION THAT THERE WAS ANY CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS BY THE ASSESSEE. HENCE IN OUR CONSIDERED OPINION THE ASSESSEE S CONDUCT WAS NOT CONTUMACIOUS SO AS TO WARRANT LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. IN THIS REGARD WE PLACE RELIANCE UPON THE ORDER OF THE HON BLE APEX COURT IN THE CASE OF HINDUSTAN STEEL LTD VS STAT E OF ORISSA 83 ITR 26 (SC ) WHEREIN IT WAS HELD THAT : AN ORDER IMPOSING PENALTY FOR FAILURE TO CARRY OUT A STATUTORY OBLIGATION IS THE RESULT OF A QUASI - CRIMINAL PROCEEDING, AND PENALTY WILL NOT ORDINARILY BE IMPOSED UNLESS THE PARTY OBLIGED EITHER ACTED DELIBERAT ELY IN DEFIANCE OF LAW OR WAS GUILTY OF CONDUCT CONTUMACIOUS OR DISHONEST, OR ACTED IN CONSCIOUS DISREGARD OF ITS OBLIGATION. PENALTY WILL NOT ALSO BE IMPOSED MERELY BECAUSE IT IS LAWFUL TO DO SO. WHETHER PENALTY SHOULD BE IMPOSED FOR FAILURE TO PERFORM A STATUTORY OBLIGATION IS A MATTER OF DISCRETION OF THE AUTHORITY TO BE EXERCISED JUDICIALLY AND ON A CONSIDERATION OF ALL THE RELEVANT CIRCUMSTANCES. EVEN IF A MINIMUM PENALTY IS PRESCRIBED, THE AUTHORITY COMPETENT TO IMPOSE THE PENALTY WILL BE JUSTIFIED IN REFUSING TO IMPOSE PENALTY, WHEN THERE IS A TECHNICAL OR VENIAL BREACH OF THE PROVISIONS OF THE ACT WHERE THE BREACH FLOWS FROM A BONA FIDE BELIEF THAT THE OFFENDER IS NOT LIABLE TO ACT IN THE MANNER PRESCRIBED BY THE STATUTE. IN THE BACKGROUND OF THE A FORESAID DISCUSSION AND PRECEDENT WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND DELETE LEVY OF PENALTY. 5. IN THE RESULT THE APPEAL OF THE ASSESSEE STANDS ALLOWED. ORDE R PRONOUNCED IN THE OPEN COURT ON 30.01.2015. SD/ - SD/ - [ MAHAVIR SIN GH ] [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 30.01.2015. R.G.(.P.S.) ITA NO. 1201 /KOL/2012 PRODYUT KUMAR SAHA A.Y.2005 - 06 4 COPY OF THE ORDER FORWARDED TO: 1 . PRODYUT KUMAR SAHA, 72/1, RAMLAL AGARWAL LANE, KOLKATA - 700050. 2 I.T.O., WARD - 41(3 ), KOLKATA. 3 . CIT(A) - XII , KOLKATA 4. CIT - KOLKATA. 5. CIT - DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES