Shri Biswanath Saha, Kolkata V. ITO, Ward - 28(2), Kolkata, Kolkata

ITA 1264/KOL/2010

• Counselvise Citation: 126423514 RSA 2010
• Duration Of Justice: 10 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2011
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 26-04-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 18-06-2010
• Court: TRIBUNAL
• Department Lawyers: S C JAIN
• Section: 148

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BEN CH A, KOLKATA () BEFORE , , , , , SHRI MAHAVIR SINGH, JUDICIAL MEMBER. /AND ! ! ! ! , '# SHRI AKBER BASHA, ACCOUNTANT MEMBER $ $ $ $ / ITA NOS . 1264 & 1265/KOL/2010 %& '(/ ASSESSMENT YEARS : 2003-04 & 2004-05 (*+ / APPELLANT ) SRI BISWANATH SAHA (PAN: ALQPS 1820 B) - % - - VERSUS - . (-.*+/ RESPONDENT ) THE I.T.O., WARD-28(2), KOLKATA *+ / 0 '/ FOR THE APPELLANT: NONE -.*+ / 0 '/ FOR THE RESPONDENT: SHRI S.C.JAIN '! / ORDER ( (( ( ! ! ! !) )) ), , , , '# PER SHRI AKBER BASHA, AM THESE TWO APPEALS BY THE ASSESSEE ARE DIRECTED AGAI NST THE ORDER DATED 12.04.2010 OF THE CIT (A)-XIX, KOLKATA PERTAINING T O ASSESSMENT YEARS 2003-04 AND 2004-05, CONFIRMING THE PENALTY LEVIED BY THE ASSES SING OFFICER UNDER SECTION 271 [1] [C] OF THE ACT. 2. NO ONE APPEARED ON BEHALF OF THE ASSESSEE. ON H EARING THE LEARNED DEPARTMENTAL REPRESENTATIVE AND MATERIALS AVAILABLE ON RECORD, THESE TWO APPEALS ARE DISPOSED OF TOGETHER ON MERIT. 2 3. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE AR E AS UNDER:- 1. FOR THAT THE ORDER IS ARBITRARY IMAGINARY AND W ITHOUT ANY BASIS WRONG AND ILLEGAL. 2. FOR THAT THE CIRCUMSTANCES OF THE CASE THE LD. A O ILLEGALLY INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE I.T.ACT, 1961 AND IMPOSED THE PENALTY ON THE ESTIMATED INCOME. 3. FOR THAT ON THE FACT AND CIRCUMSTANCES OF THE CA SE THE LD. CIT(A) FAILED TO CONSIDER THAT THE ASSESSEE FURNISHED INACCURATE PAR TICULARS OF INCOME IN HIS RETURN AND WRONGLY CONFIRMED THE ORDER OF THE LD. A O. 4. FOR THAT THE CIRCUMSTANCES OF THE CASE THE APPEL LANT RESERVED THE RIGHT TO ADDED OR ADDITIONAL GROUND/GROUNDS AT THE TIME OF H EARING. 4. THE ONLY EFFECTIVE GROUND IN THESE APPEALS IS W HETHER THE ASSESSING OFFICER IS RIGHT IN IMPOSING THE PENALTY UNDER SECT ION 271(1)(C) OF THE IT ACT ON THE BASIS OF ESTIMATION OF INCOME MADE BY THE ASSESSING OFFICER OR NOT. THE BRIEF FACTS OF THE CASE, ON THE BASIS OF ASSESSMENT ORDER FOR THE YEAR 2003-04, ARE THAT THE ASSESSEE HAD FILED HIS RETURN OF INCOME FOR THE ASSESSMENT Y EAR 2003-04 ON 17-07-2003 DECLARING THE TOTAL INCOME OF RS.83,970/-. LATER, T HE ASSESSMENT WAS REOPENED UNDER SECTION 148 OF THE ACT AND THE ASSESSEE FILED SECON D RETURN OF INCOME BY DECLARING TOTAL INCOME AT RS.1,15,518/-. THE ASSESSING OFFICE R COMPLETED THE ASSESSMENT BY DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS. 1,93,060/-. IN THE ORIGINAL RETURN OF INCOME, THE ASSESSEE HAS NOT DECLARED INCOME EARNED FROM THREE TAXIS OWNED BY HIM AND THE INCOME FROM TWO PAN SHOPS. IN THE SECOND RE TURN, THE ASSESSEE HAD DISCLOSED INCOME FROM THREE TAXIES AT RS.3,150/- PER VEHICLE UNDER SECTION 44AE OF THE ACT AND ALSO DECLARED INCOME OF RS.2,118/- FROM THE PAN SHO P. THE ASSESSING OFFICER FINALLY DETERMINED THE INCOME FROM TAXIES AT RS.1,13,400/- AND RS.68,400/- FROM THE PAN SHOPS. ALSO, THE ASSESSING OFFICER INITIATED THE PE NALTY PROCEEDINGS UNDER SECTION 271[1] [C] OF THE ACT. AGGRIEVED BY THE ORDER OF T HE ASSESSING OFFICER, THE ASSESSEE WENT IN APPEAL BEFORE THE CIT [A] AND ON APPEAL, TH E CIT [A] CONFIRMED THE PENALTY LEVIED BY THE ASSESSING OFFICER. FURTHER AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. 5. ON HEARING THE LEARNED DEPARTMENTAL REPRESENTAT IVE AND MATERIALS AVAILABLE ON RECORD, WE FIND THAT THE ASSESSING OFF ICER LEVIED THE PENALTY UNDER SECTION 271 [1] [C] OF THE ACT ON THE GROUND THAT THE ASSES SEE HAS FILED INACCURATE PARTICULARS OF INCOME TO CONCEAL HIS INCOME. IN THE CASE UNDER CON SIDERATION, THE ASSESSEE ESTIMATED 3 THE INCOME FROM HIRING THE TAXIES AND PAN SHOPS AND APPEARS TO HAVE GIVEN DETAILS WHICH WERE NECESSARY FOR DETERMINING THE INCOME OF THE ASSESSEE. IT APPEARS, THE ASSESSEE WAS OF THE VIEW THAT THE ESTIMATED INCOME DECLARED BY HIM IS CORRECT AND WHEREAS THE ASSESSING OFFICER WAS OF THE VIEW THAT ESTIMATED INCOME OF THE ASSESSEE IS MORE THAN WHAT THE ASSESSEE HAS DECLARED. MERELY, T HE ASSESSING OFFICER AND THE ASSESSEE WERE HAVING DIFFERENT VIEWS ON ESTIMATING THE INCOME FROM TAXIES AND PAN SHOPS, WHICH DOES NOT AMOUNT TO A CASE OF FURNISHIN G INACCURATE PARTICULARS OF INCOME TO CONCEAL THE INCOME. SINCE, IT IS NOT A CASE OF FURNISHING INACCURATE PARTICULARS, PENALTY PROVISIONS UNDER SECTION 271 [1] [C] OF THE ACT ARE NOT APPLICABLE. ACCORDINGLY, WE, AFTER CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE, CANCEL THE PENALTIES LEVIED, ON THE BASIS OF ESTIMA TION OF INCOME, FOR BOTH THE ASSESSMENT YEARS UNDER CONSIDERATION. 6. IN THE RESULT THE APPEALS OF THE ASSESSEE ARE A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 26.04.2011. SD/- SD/- , , , , MAHAVIR SINGH, JUDICIAL MEMBER ! ! ! !, ,, , '# '# '# '# , AKBER BASHA, ACCOUNTANT MEMBER. ( (( (1# 1# 1# 1#) )) ) DATE: 26.04.2011. '! / -2 3'2'4- COPY OF THE ORDER FORWARDED TO: 1. SRI BISWANATH SAHA, 5/1, WATGANJ ST.(DALPARA), KOLK ATA-700023. 2 THE I.T.O., 28(2), KOLKATA 3. THE CIT, 4. THE CIT(A)-XIX, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA .2 -/ TRUE COPY, '!%:/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES R.G.(.P.S.) 4