K.V.S. PRAKASA RAO, BHILAI V. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 1(1), BHILAI

ITA 123/RPR/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 2716 (ITAT-RAIPUR)
• Duration Of Justice: 1 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 28-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RITUPARAN NAMDEO
• Keywords: Salary income
• Section: 27; 148; 6; 271(1)(c); 274

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE, JUDICIAL MEMBER ITA NO.123/RPR/2018 ASSESSMENT YEAR : 2015-16 K.V.S. PRAKASA RAO, FLAT NO.524/ KALPKRITI PARISAR AVADHPURI, ASHISH NAGAR (W), RISALI, BHILAI (CG). VS. DCIT, CIRCLE- 1(1), BHILAI (CG). PAN : AEVPP7626J (APPELLANT) (RESPONDENT) ITA NOS.131 TO 133/RPR/2018 ASSESSMENT YEARS : 2012-13 TO 2014-15 AMIT KUMAR PRAKASH, 7/C, RUSSIAN COMPLEX, SECTOR- 7, BHILAI NAGAR, DISTRICT: DURG (CG) VS. ITO, WARD- 1(4), BHILAI (CG). PAN : ASMPP0123F (APPELLANT) (RESPONDENT) ITA NOS.134 & 135/RPR/2018 ASSESSMENT YEARS : 2013-14 & 2014-15 SHRI KISHORE KUMAR PRITM, QR. NO.26C, 27 SECTOR-4, BHILAI, DISTRICT: DURG (CG) VS. ITO, WARD- 1(4), BHILAI (CG). PAN : AFUPP1382F (APPELLANT) (RESPONDENT) 2 ITA NOS.136 & 137/RPR/2018 ASSESSMENT YEARS : 2013-14 & 2014-15 SHRI AMALENDRA KUMAR PANDEY, FLAT NO.5/A, STREET-8, SECTOR-10, BHILAI, DISTRICT: DURG (CG) VS. ITO, WARD 1(4), BHILAI (CG). PAN : AEWPP2154E (APPELLANT) (RESPONDENT) ITA NOS.138 & 139/RPR/2018 ASSESSMENT YEARS : 2013-14 & 2014-15 SHRI RAGHVENDRA TADURI, MARIGOLD-07, CHOUHAN GREEN VALLEY, OPPOSITE CHOUHAN TOWN, JUNWANI, BHILAI (CG). VS. ACIT, CIRCLE- 1(1), BHILAI (CG). PAN : ABGPT3950K (APPELLANT) (RESPONDENT) ITA NO.140/RPR/2018 ASSESSMENT YEAR : 2012-13 TEEGALA HANUMATH RAO, PLOT-3, 4 ASHISH NAGAR (W), RISALI, BHILAI, DISTRICT: DURG (CG). VS. ITO, WARD- 1(5), BHILAI (CG). PAN : ACTPR3433K (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S. R. RAO, ADV. DEPARTMENT BY : SHRI RITUPARAN NAMDEO, DR DATE OF HEARING : 09-08-2018 DATE OF PRONOUNCEMENT : 09-08-2018 3 O R D E R PER R. K. PANDA, AM : ALL THE ABOVE APPEALS FILED BY THE RESPECTIVE ASSES SEES ARE DIRECTED AGAINST THE SEPARATE ORDERS OF THE LD. CIT(A)- II, RAIPUR (CG) RELATING TO RESPECTIVE ASSESSMENT YEARS MENTIONED THEREIN. FOR THE SAKE OF CONVENIENCE, ALL THE ABOVE APPEALS OF THE RESPECTIVE ASSESSEES WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER. 2. LEVY OF PENALTY U/S 271(1)(C) OF THE I.T. ACT, 1 961 BY THE ASSESSING OFFICER WHICH HAS BEEN CONFIRMED BY THE LD. CIT(A) IS THE ONLY ISSUE RAISED BY THE ABOVE ASSESSEES IN THEIR RESPECTIVE GROUNDS OF APPEAL. 3. ALL THE ABOVE ASSESSEES ARE EMPLOYEES OF SAIL, B HILAI STEEL PLANT AND DERIVE INCOME FROM SALARY. IN THE RETURN OF INCOME , ALL THESE EMPLOYEES HAVE CLAIMED THE PERQUISITES RECEIVED FROM THE EMPLOYER AS EXEMPT. THE ASSESSING OFFICER REOPENED ALL THESE CASES BY ISSUE OF NOTICE U/S 148 OF THE ACT. THE RESPECTIVE EMPLOYEES OFFERED THE ENTIRE INCOME AND PAID THE TAXES THEREON AND REPAID REFUNDS ISSUED EARLIER ON THE BASIS OF THE O RIGINAL RETURNS OF INCOME. THE ASSESSING OFFICER THEREAFTER INITIATED PENALTY PROC EEDINGS U/S 271(1)(C) OF THE I.T. ACT, 1961. REJECTING THE VARIOUS EXPLANATIONS GIVEN BY THE RESPECTIVE ASSESSEES, THE RESPECTIVE ASSESSING OFFICERS LEVIED PENALTY U/S 271(1)(C) WHICH 4 HAS BEEN UPHELD BY THE LD. CIT(A). THE AMOUNT OF P ENALTY FOR EACH OF THE ASSESSEES FOR THE RELEVANT ASSESSMENT YEARS ARE AS UNDER :- NAME OF THE ASSESSEE A.Y. PENALTY (RS.) SHRI KVS PRAKASA RAO 2015-16 47,720/- SHRI AMIT KUMAR PRAKASH 2012-13 12,750/- 2013-14 7,000/- 2014-15 14,200/- SHRI KISHORE KUMAR PRITAM 2013-14 5,200/- 2014-15 3,500/- SHRI AMLENDRA KUMAR PANDEY 2013-14 12,800/- 2014-15 16,800/- SHRI RAGHAVENDRA TARDURI 2013-14 28,890/- 2014-15 33,160/- SHRI TEEGALA HANUMANT RAO 2012-13 13,700/- 4. THE LD. COUNSEL FOR THE ASSESSEE, AT THE OUTSET, REFERRING TO THE NOTICES ISSUED IN EACH CASE U/S 274 R.W.S. 271 SUBMITTED TH AT THE SHOW CAUSE NOTICE ISSUED U/S 274 R.W.S. 271 DID NOT DEFINE THE NATURE OF DEFAULT I.E. WHETHER THE PENALTY IS LEVIED FOR CONCEALMENT OF INCOME OR FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. HE SUBMITTED THAT THE ASSES SING OFFICER IMPOSED THE PENALTY U/S 271(1)(C) IN EACH CASE ON THE GROUND TH AT THE ASSESSEE HAS CONCEALED HIS INCOME AND FURNISHED INACCURATE PARTICULARS OF INCOME. REFERRING TO THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. M/S SSAS EMERALD MEADOWS VIDE ITA NO.380 OF 2015 ORDER DATED 23.11.2015, HE SUBMITTED THAT THE HON'BLE HIGH COURT IN THE SAID D ECISION FOLLOWING THE DECISION IN THE CASE OF MANJUNATH COTTON AND GINNIN G FACTORY REPORTED IN 359 5 ITR 565 HAD UPHELD THE DECISION OF THE TRIBUNAL CAN CELLING THE PENALTY AND DISMISSED THE APPEAL FILED BY THE REVENUE ON THE GR OUND THAT THE NOTICE ISSUED BY THE ASSESSING OFFICER U/S 274 R.W.S. 271 IS BAD IN LAW SINCE IT DID NOT SPECIFY UNDER WHICH LIMB OF SECTION 271(1)(C) PENALTY PROCE EDINGS HAVE BEEN INITIATED. HE SUBMITTED THAT THE SLP FILED BY THE REVENUE HAS BEEN DISMISSED BY THE HONBLE SUPREME COURT. REFERRING TO VARIOUS DECISI ONS FILED IN THE PAPER BOOK, HE SUBMITTED THAT UNDER IDENTICAL CIRCUMSTANCES VAR IOUS BENCHES OF THE TRIBUNAL ARE CANCELLING THE PENALTY SO LEVIED WHERE THE INAP PROPRIATE WORDS ARE NOT STRUCK OFF FROM THE NOTICE ISSUED U/S 274 R.W.S. 271 OF TH E ACT. HE ACCORDINGLY SUBMITTED THAT ON THIS PRELIMINARILY GROUND ITSELF THE ORDER OF THE LD. CIT(A) SUSTAINING THE PENALTY LEVIED BY THE ASSESSING OFFI CER SHOULD BE SET-ASIDE AND THE PENALTY IN EACH CASE SHOULD BE CANCELLED. 5. THE LD. DR ON THE OTHER HAND HEAVILY RELIED ON T HE ORDER OF THE LD. CIT(A). HE SUBMITTED THAT MERE NON-STRIKING OF THE INAPPROPRIATE WORDS WILL NOT INVALIDATE THE INITIATION OF PENALTY PROCEEDING S AND THE PROVISIONS OF SECTION 292B/292BB WILL COME TO RESCUE OF THE DEPARTMENT. 6. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. A PERUSA L OF THE NOTICE ISSUED U/S 274 R.W.S. 271 IN EACH CASE SHOWS THAT THE INAPPROPRIAT E WORDS IN THE SAID NOTICE HAS NOT BEEN STRUCK OFF I.E. THE NOTICE DOES NOT SPECIF Y UNDER WHICH LIMB OF SECTION 6 271(1)(C) THE PENALTY PROCEEDINGS HAD BEEN INITIATE D I.E. WHETHER FOR CONCEALMENT OF INCOME OR FOR FURNISHING OF INACCURA TE PARTICULARS OF INCOME. WE FIND THE HONBLE KARNATAKA HIGH COURT IN THE CAS E OF M/S SSAS EMERALD MEADOWS (SUPRA) HAS OBSERVED AS UNDER :- 3. THE TRIBUNAL HAS ALLOWED THE APPEAL FILED BY TH E ASSESSEE HOLDING THE NOTICE ISSUED BY THE ASSESSING OFFICER UNDER SECTION 274 R EAD WITH SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT) TO BE BA D IN LAW AS IT DID NOT SPECIFY WHICH LIMB OF SECTION 271(1)(C) OF THE ACT, THE PENALTY P ROCEEDINGS HAD BEEN INITIATED I.E., WHETHER FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE TRIBUNAL, WHILE ALLOWING THE APPEAL OF THE ASSESSEE, HAS RELIED ON THE DECISION OF THE DIVISION BENCH OF THI S COURT RENDERED IN THE CASE OF COMMISSIONER OF INCOME TAX -VS- MANJUNATHA COTTON A ND GINNING FACTORY (2013) 359 ITR 565. 4. IN OUR VIEW, SINCE THE MATTER IS COVERED BY JUDG MENT OF THE DIVISION BENCH OF THIS COURT, WE ARE OF THE OPINION, NO SUBSTANTIAL Q UESTION OF LAW ARISES IN THIS APPEAL FOR DETERMINATION BY THIS COURT. THE APPEAL IS ACCO RDINGLY DISMISSED. 7. WE FIND THE SLP FILED BY THE REVENUE HAS BEEN DI SMISSED BY THE HONBLE APEX COURT. FURTHER, THE VARIOUS BENCHES OF THE TR IBUNAL FOLLOWING THE ABOVE DECISIONS ARE CANCELLING THE PENALTY SO LEVIED BY T HE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(A) ON ACCOUNT OF NON-STRIK ING OF THE INAPPROPRIATE WORDS FROM THE NOTICE ISSUED U/S 274 R.W.S. 271 OF THE ACT. SINCE IN THE INSTANT CASE, THE ASSESSING OFFICER HAS NOT STRUCK OFF THE INAPPROPRIATE WORDS IN THE NOTICES ISSUED U/S 274 R.W.S. 271, THEREFORE, THE N OTICE DOES NOT SPECIFY UNDER WHICH LIMB OF SECTION 271(1)(C) THE PENALTY PROCEED INGS HAD BEEN INITIATED I.E. WHETHER FOR CONCEALMENT OF INCOME OR FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THEREFORE, THE PENALTY PROCEEDINGS BECOME BAD IN LAW. WE, THEREFORE, 7 SET-ASIDE THE ORDER OF THE LD. CIT(A) AND DIRECT TH E ASSESSING OFFICER TO CANCEL THE PENALTY SO LEVIED. THE APPEALS FILED BY THE AS SESSEE ARE ACCORDINGLY ALLOWED. 8. IN THE RESULT, ALL THE APPEALS FILED BY THE RESP ECTIVE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF I.E. ON THIS 09 TH AUGUST, 2018. SD/- SD/- (SUCHITRA KAMBLE) (R. K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 09-08-2018. SUJEET COPY OF ORDER TO: - 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT 4) THE CIT(A) 5) THE DR, I.T.A.T., RAIPUR. BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY ITAT, RAIPUR