Shri Sabyasachi Dasgupta, Kolkata V. ITO, Ward - 36(3), Kolkata, Kolkata

ITA 1296/KOL/2011

• Counselvise Citation: 129623514 RSA 2011
• Duration Of Justice: 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-02-2012
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 1990-1991
• Appeal Filed On: 03-10-2011
• Court: TRIBUNAL
• Keywords: Business income; Question of law; Revised return

Judgement Text

, A , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH- A CALCUTTA () BEFORE , SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER /AND ! '# ! , SHRI N.VIJAYA KUMARAN, JUDICIAL MEMBER $ / ITA NO. 1296/KOL/2011 %!& '(/ ASSESSMENT YEAR: 1990-91 SRI SABYASACHI DASGUPTA PAN: ADLPD 7800M I.T.O WARD 36(3), KOLKATA (*+ / APPELLANT ) - ! - - VERSUS - . (-*+/ RESPONDENT ) *+ . / / FOR THE APPELLANT: / /SHRI P.DE BHAUMIK, LD.AR -*+ . / / FOR THE RESPONDENT: / SHRI ANJAN PD. ROY, LD.DR . !0 . 1 /DATE OF HEARING : 09-02-2012 2' . 1 /DATE OF PRONOUNCEMENT: 29-02-2012 3 / ORDER ! '# ! , , , , , , ,, , SHRI N. VIJAYA KUMARAN, JUDICIAL MEMBER THIS APPEAL BY THE ASSESSEE IS FOR THE ASSESSMENT YEAR 1990-91. IT IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-XX, KOLKATA DATED 28 TH JULY 2011.. THIS APPEAL BY THE ASSESSEE IS AGAINST THE PENALTY LEVIED U/S. 271(1)( C) OF THE INCOME- TAX ACT. 2. THE ASSESSEE HAS INCOME THROUGH SALARY, BUSINESS INCOME AND INCOME FROM OTHER SOURCES. THE ASSESSEE HAS CLAIMED SHARE OF LOSS FRO M THE REGISTERED FIRM, M/S. SINCLAIR & CO. SUBSEQUENTLY, ASSESSEE FILED REVISED RETURN SHOWING TOTAL LOSS OF RS.4,13,711/-. HOWEVER, THE ASSESSMENT WAS COMPLETED WITH AN ADDITION OF CASH LOAN OF RS.8,29,995/- TAKEN FROM 45 LOAN CREDITORS. THE ASSESSING OFFICER WAS OF THE VIEW T HAT QUANTUM APPEAL OF THE ASSESSEE BEFORE THE HONBLE ITAT WAS DISMISSED. ITA NO. 1296/KOL/2011-A_NVK 2 3. THE ASSESSING OFFICER LEVIED THE PENALTY U/S. 27 1(1)( C) OF THE I.T ACT61 @100% TAX SOUGHT TO BE EVADED, WHICH COMES TO RS.1,68,785/-. 4. ON APPEAL, THIS WAS CONFIRMED BY THE LEARNED COM MISSIONER OF INCOME-TAX (APPEALS). 5. BEFORE US THE LD. COUNSEL WOULD SUBMIT THAT ON THIS QUANTUM APPEAL THE HONBLE JURISDICTIONAL HIGH COURT HAS ADMITTED THE SECOND APPEAL ON SUBSTANTIAL QUESTION OF LAW WHEREBY THE QUANTUM APPEAL STILL PENDING BEFORE THE HONBLE HIGH COURT. THE LD. COUNSEL FURTHER SUBMITTED THAT THE ASSESSEE HAS DISCHARGED THE INIT IAL BURDEN BY PROVIDING CONFIRMATION AND ADDRESS OF THE CREDITORS. IT IS ONLY THE AO, WHO HA S NOT MADE ANY INQUIRY. THEREFORE, THE ASSESSEE HAS NEVER FILED ANY INACCURATE PARTICULARS NOR CON CEALED ANY INCOME, WHICH WILL ATTRACT THE PENALTY U/S. 271(1)( C) OF THE ACT. THEREFORE, THE LD. COU NSEL FOR THE ASSESSEE SUBMITTED BY RELYING ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F CIT V. RELIANCE PETROPRODUCTS PVT. LTD. (2010) 322 ITR 174 (SC) AND PRAYED THAT THE PENALT Y SO LEVIED MAY BE DELETED. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD INCLUDING THE PRECEDENCE. IN THIS CASE THE QUANTUM APPEAL IS PENDING FOR DISPOSAL BEFORE THE HONBLE JURISDICTIONAL HIGH COURT. HONBLE HIGH COU RT IS PLEASED TO ADMIT THIS SECOND APPEAL ON SUBSTANTIAL QUESTION OF LAW, WHICH ITSELF WILL GO T O SHOW THAT THERE IS SUBSTANTIAL QUESTION OF LAW FO R DECISION. THIS ITSELF IS BONAFIDE REASON TO IMPOS E PENALTY. FURTHER, REGARDING THE ADDITION U/S.68, I.T RECORDS OF THE LOAN CREDITORS COULD NOT BE VER IFIED FROM THE DEPARTMENTAL RECORDS. AS THESE WERE 12-15 YEARS OLD, THIS IS ALSO ONE OF THE VALI D REASON. THE ASSESSEE HAS MADE A CLAIM, WHICH WAS ULTIMATELY DECIDED AGAINST THE ASSESSEE UPTO TH E LEVEL OF THE TRIBUNAL. HOWEVER, THE QUANTUM APPEAL IS PENDING FOR ADJUDICATION BEFORE THE HONB LE JURISDICTIONAL HIGH COURT, AS THERE IS NO MATERIAL TO SUGGEST THAT ASSESSEE HAS CONCEALED PA RTICULARS OF INCOME OR FURNISHED ANY INACCURATE PARTICULARS OF SUCH INCOME IS NOT MADE OUT. THE DEC ISION OF THE HONBLE SUPREME COURT IN THE CASE OF RELIANCE PETROPRODUCTS PVT. LTD (SUPRA) IS DIRECTLY APPLICABLE. RESPECTFULLY, FOLL OWING THE SAME AND FACT THAT THE QUANTUM APPEAL IS ADMITTED BY THE HONBLE JURISDCTIONAL HIGH COURT ON SUBSTANTIVE QUESTION OF LAW, WHICH WILL BE MADE US TO SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND DIRECT THE ASSESSING OFFICER TO DELETE THE PENA LTY. ITA NO. 1296/KOL/2011-A_NVK 3 7. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. 4 3 5 ! 6 47 THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 29 -02-2012 SD/- SD/- ( , ) ( PRAMOD KUMAR, ACCOUNTANT MEMBER) ( ! '# ! , ) ( N.VIJAYA KUMARAN, JUDICIAL MEMBER ) DATED: 29-02-2012 ORDER PRONOUNCED IN OPEN COURT SD/- SD/- [JM] [AM] 29/2/12 29/2 *PP SR.PS/ 3 . %%' 8''/ COPY OF THE ORDER FORWARDED TO: 1. *+ /APPELLANT- SRI SABYASACHI DASGUPTA C/O M/S. SINC LAIR & COMPANY 7, RED CROSS PLACE, KOL-1. 2 -*+ / RESPONDENT I.T.O, W 36 (3), 18 BRABOURNE SARANI, KOLKATA. 3. %3!/ CIT, 4. %3! ()/ CIT(A), 5. ?%6 %!/ DR, KOLKATA BENCHES, KOLKATA [-' %/ TRUE COPY] 3!/ BY ORDER, 4 # /ASSTT REGISTRAR