Adwaita Das, Kolkata V. ACIT, CIR-34, Kolkata, Kolkata

ITA 123/KOL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1788 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2017
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 05-10-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 22-01-2014
• Court: TRIBUNAL
• Department Lawyers: RAJAT KUMAR KUREEL
• Assessee Lawyers: T K CHAKRABORTY

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : KOLKATA [BEFORE HONBLE SRI N.V.VASUDEVAN, JM & SHRI WASE EM AHMED, AM] I.T.A NO. 123/KOL/201 4 ASSESSMENT YEAR : 2008-0 9 ADWAITA DAS -VS.- A.C.I.T., CIRCLE-34, KOLKATA KOLKATA [PAN : ADGPD 0636 C] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI T.K.CHA KRABORTY, ADVOCATE FOR THE RESPONDENT : SHRI RAJAT KUMAR KUREEL, JCIT. SR.DR DATE OF HEARING : 18.04.2017. DATE OF PRONOUNCEMENT : 03.05.2017. ORDER PER N.V.VASUDEVAN, JM THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 04.09.2013 OF C.I.T (A)-XX, KOLKATA RELATING TO A.Y.2008-09. 2. IN THIS APPEAL THE ASSESSEE HAS CHALLENGED THE ORDER OF CIT(A) WHEREBY THE CIT(A) CONFIRMED THE ORDER OF AO IMPOSING PENALTY ON THE A SSESSEE U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (ACT). 3. THE FACTS AND CIRCUMSTANCES UNDER WHICH PENALTY U/S 271(1)(C) OF THE ACT WAS LEVIED ON THE ASSESSEE BY THE AO ARE AS FOLLOWS :- THE ASSESSEE IS AN INDIVIDUAL. HE IS ENGAGE D IN THE BUSINESS OF SUPPLYING OF PAPER AND STILL AND IS ALSO THE DIRECTOR OF DAS PROCESSIN G & TRADING PVT. LTD. THE ASSESSEE FILED RETURN OF INCOME FOR A.Y. 2008-09 DECLARING T OTAL INCOME OF RS.15,54,250/-. IN THE COURSE OF ASSESSMENT PROCEEDINGS U/S 271(1)(C) OF THE ACT, THE AO NOTICED THAT THE ASSESSEE HAD NOT DECLARED INTEREST ON FIXED DEPOSIT RECEIVABLE IN RESPECT OF FDS IN THE NAME OF THE ASSESSEE WITH KARNATAKA BANK LIMITED AN D CORPORATION BANK. THESE DETAILS OF INTEREST ACCRUED ON FDS IN THE NAME OF T HE ASSESSEE WAS GATHERED BY THE AO FROM ITS DETAILS AND HAS NOT BEEN DECLARED BY THE A SSESSEE IN HIS RETURN OF INCOME. THE SUM OF RS.6,18,011/- WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE BY THE AO AS 2 ITA NO.123/KOL/2014 ADWAITA DAS A.YR.2008-09 2 INTEREST INCOME NOT DISCLOSED.. IN RESPECT OF THE AFORESAID ADDITION MADE IN THE COURSE OF ASSESSMENT PROCEEDINGS THE AO INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT. THE AO IMPOSED PENALTY HOLDING THAT THE ASSESS EE HAS VIOLATED THE PROVISION OF LAW ENUMERATED IN SECTION 271(1)(C) OF THE ACT BY F URNISHING INACCURATE PARTICULARS OF INCOME AND IMPOSED PENALTY U/S 271(1)(C) OF THE ACT . THE CIT(A) CONFIRMED THE ORDER OF AO. HENCE THIS APPEAL BY THE ASSESSEE BEFORE THE TRIBUNAL. 4. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED BEF ORE US THAT THE SHOW CAUSE NOTICE ISSUED U/S 274 OF THE ACT BEFORE IMPOSING PENALTY D OES NOT CONTAIN THE SPECIFIC CHARGE AGAINST THE ASSESSEE NAMELY AS TO WHETHER THE ASSES SEE WAS GUILTY OF HAVING CONCEALED PARTICULARS OF INCOME OR HAVING FURNISHED INACCURAT E PARTICULARS OF INCOME. A COPY OF THE SHOW CAUSE NOTICE U/S 274 OF THE ACT IS PLACED AT PAGE-4 OF THE ASSESSEES PAPER BOOK AND PERUSAL OF THE SAME REVEALS THAT AO HAS NO T STRUCK OUT THE IRRELEVANT PORTION IN THE SHOW CAUSE NOTICE AND THEREFORE THE SHOW CAU SE NOTICE DOES NOT SPECIFY THE CHARGE AGAINST THE ASSESSEE AS TO WHETHER THE CHARG E IS OF CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF I NCOME. 5. THE LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTEN TION TO THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. SSAS E MERALD MEADOWS IN ITA NO.380 OF 2015 DATED 23.11.2015 WHEREIN THE HONBLE KARNAT AKA HIGH COURT FOLLOWING ITS OWN DECISION IN THE CASE OF CIT VS MANJUNATHA COTTON AN D GINNING FACTORY (2013) 359 ITR 565 TOOK A VIEW THAT IMPOSING OF PENALTY U/S 271(1) (C) OF THE ACT IS BAD IN LAW AND INVALID FOR THE REASON THAT THE SHOW CAUSE NOTICE U /S 274 OF THE ACT DOES NOT SPECIFY THE CHARGE AGAINST THE ASSESSEE AS TO WHETHER IT IS FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE LD. COUNSEL FURTHER BROUGHT TO OUR NOTICE THAT AS AGAINST THE DECISION OF THE HON BLE KARNATAKA HIGH COURT THE REVENUE PREFERRED AN APPEAL IN SLP IN CC NO.11485 OF 2016 A ND THE HONBLE SUPREME COURT BY ITS ORDER DATED 05.08.2016 DISMISSED THE SLP PREFER RED BY THE DEPARTMENT. THE LD. COUNSEL ALSO BROUGHT TO OUR NOTICE THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS SHRI SAMSON PERINCHERY IN ITA NO .1154 OF 2014 DATED 05.01.2017 3 ITA NO.123/KOL/2014 ADWAITA DAS A.YR.2008-09 3 WHEREIN THE HONBLE BOMBAY HIGH COURT FOLLOWING THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS MANJUNAT HA COTTON AND GINNING FACTORY (SUPRA) CAME TO THE CONCLUSION THAT IMPOSITION OF P ENALTY ON DEFECTIVE SHOW CAUSE NOTICE WITHOUT SPECIFYING THE CHARGE AGAINST THE AS SESSEE CANNOT BE SUSTAINED. OUR ATTENTION WAS ALSO DRAWN TO THE DECISION OF ITAT IN THE CASE OF SUVAPRASANNA BHATTACHARYA VS ACIT IN ITA NO.1303/KOL/2010 DATED 06.11.2015 WHEREIN IDENTICAL PROPOSITION HAS BEEN FOLLOWED BY THE TRIBUNAL. THE LD. DR RELIED ON THE ORDER OF CIT(A). 6. WE HAVE ALREADY OBSERVED THAT THE SHOW CAUSE NOTICE ISSUED IN THE PRESENT CASE U/S 274 OF THE ACT DOES NOT SPECIFY THE CHARGE AGAINST THE ASSESSEE AS TO WHETHER IT IS FOR CONCEALING PARTICULARS OF INCOME OR FURNISHING INAC CURATE PARTICULARS OF INCOME. THE SHOW CAUSE NOTICE U/S 274 OF THE ACT DOES NOT STRIK E OUT THE INAPPROPRIATE WORDS. IN THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT IMPOSI TION OF PENALTY CANNOT BE SUSTAINED. THE PLEA OF THE LD. COUNSEL FOR THE ASSESSEE WHICH IS BASED ON THE DECISIONS REFERRED TO IN THE EARLIER PART OF THIS ORDER HAS TO BE ACCEPT ED. WE THEREFORE HOLD THAT IMPOSITION OF PENALTY IN THE PRESENT CASE CANNOT BE SUSTAINED AND THE SAME IS DIRECTED TO BE CANCELLED. 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS A CCORDINGLY ALLOWED. ORDER PRONOUNCED IN THE COURT ON 03.05.2017. SD/- SD/- [WASEEM AHMED] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 03.05.2017. [RG PS] COPY OF THE ORDER FORWARDED TO: 1. ADWAITA DAS, 12A, N.S.ROAD, 2 ND FLOOR, ROOM NO.8, KOLKATA-700001. 2. A.C.I.T., CIRCLE-34, KOLKATA. 3. CIT(A)- XX, KOLKATA. 4. C.I.T.-XII, KOLK ATA. 3. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSTT.REGISTRAR, ITAT, KOLKATA BENCHES 4 ITA NO.123/KOL/2014 ADWAITA DAS A.YR.2008-09 4