Akahshganga Suppliers Pvt. Ltd., Kolkata V. I.T.O.,Ward-4(3), Kolkata

ITA 132/KOL/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0149 (ITAT-KOLKATA)
• Duration Of Justice: 11 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 25-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS
• Section: 143(3); 250; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B, BENC H KOLKATA BEFORE SHRI S.S.GODARA, JM &DR. A.L.SAINI, AM ./ITA NO.132/KOL/2019 ( / ASSESSMENT YEAR: 2014-15) AKASHGANGA SUPPLIERS PVT. LTD. N-909, DIAMOND HERITAGE, 16, STRAND ROAD, KOLKATA VS. ITO, WARD-4(3), KOLKATA ./ ./PAN/GIR NO.: AAECA 1520 E (APPELLANT) .. (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SMT. RANU BISWAS, ADDL. CIT / DATE OF HEARING : 31/10/2019 /DATE OF PRONOUNCEMENT : 31/12/2019 / O R D E R PER BENCH: THE CAPTIONED APPEAL FILED BY THE ASSESSEE , PE RTAINING TO ASSESSMENT YEAR 2014-15, IS DIRECTED AGAINST THE ORDER PASSED BY TH E COMMISSIONER OF INCOME TAX (APPEAL)-2, KOLKATA IN APPEAL NO. 10095/CIT(A)-2/20 17-18, WHICH IN TURN ARISES OUT OF A PENALTY ORDER PASSED BY THE ASSESSING OFFI CER U/S 271(1)(C ) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 28/ 04/2017. 2. AT THE TIME OF HEARING NONE APPEARED ON BEHALF O F ASSESSEE IN SPITE OF ISSUANCE OF NOTICE FOR HEARING MORE THAN ONE OCCASION AND LD . DEPARTMENTAL REPRESENTATIVE(DR), WAS PRESENT FOR THE APPELLANT R EVENUE. IN THE ABSENCE OF ANY APPEARANCE BY THE ASSESSEE, THE APPEAL IS BEING DIS POSED OF EX PARTE QUA THE AKASHGANGA SUPPLIERS PVT. LTD. ITA NO.132/KOL/2019 ASSESSMENT YEAR:2014-15 P PP PA AA AG GG GE EE E | || | 2 22 2 ASSESSEE, AFTER HEARING LD. DR FOR THE REVENUE ON M ERITS IN TERMS OF RULE 24 OF THE INCOME TAX APPELLATE, TRIBUNAL, RULES, 1963. 3. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE AS FOLLOWS: 1. THE EX-PARTE ORDER U/S 250 OF THE I.TAX ACT, 196 1 IS BAD IN LAW AS THERE WAS NO FAILURE ON THE PART OF THE ASSESSEE TO MAKE DUE COMPLIANCE & DISCLOSURES TO THE LD. CIT(A). 2. THE PENALTY ORDER U/S 271(1)(B) OF THE ACT IS BA D IN LAW. 3. WITHOUT PREJUDICE TO THE ABOVE, THE LD. A.O. ERR ED IN IMPOSING PENALTY OF RS. 10,000/- U/S 271(1)(B) OF THE I.T. ACT, 1961 AS THE ASSESSMENT ORDER WAS PASSED U/S 143(3) AND NOT U/S 144 OF THE ACT, 1 961. 4. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, DELETE, SUBSTITUTE ANY OF THE GROUNDS AND/OR TAKE ADDITIONAL GROUND/S BEFORE OR AT ANY TIME OF HEARING OF THIS APPEAL. 4. AT THE OUTSET ITSELF WE NOTE THAT THE ASSESSING OFFICER ERRED IN IMPOSING PENALTY OF RS. 10,000/- U/S 271(1)(B) OF THE ACT AS THE ASS ESSMENT ORDER WAS PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE ACT WHICH INDIC ATES THAT THE ASSESSEE MADE THE SUBSEQUENT COMPLIANCE OF NOTICES ISSUED BY THE ASSE SSING OFFICER DURING ASSESSMENT STAGE. 5. WE HAVE HEARD THE LD. D.R FOR THE REVENUE AND PE RUSED THE MATERIAL AVAILABLE ON RECORD. WE NOTE THAT THE ASSESSING OFFICER HAS PASS ED THE ASSESSMENT ORDER U/S 143(3) OF THE ACT AFTER TAKING INTO ACCOUNT THE SUB MISSION OF THE ASSESSEE, THEREFORE, IT CAN BE PRESUMED THAT THE ASSESSEE HAS MADE SUFFICIENT COMPLIANCE OF NOTICES AND THEREFORE PENALTY MAY NOT BE IMPOSED. W E NOTE THAT IN ABSENCE OF RECORDING OF SATISFACTION IN THE ASSESSMENT ORDER, MERELY INITIATION OF PENALTY WILL NOT CONFER JURISDICTION ON THE ASSESSING OFFICER TO LEVY THE PENALTY. IN THIS CASE, IT IS EVIDENTLY CLEAR THAT THE ASSESSING OFFICER HAS P ASSED THE ORDER U/S 143(3) OF THE ACT AND NOT U/S 144 OF THE ACT THEREFORE, PENALTY U /S 271(1)(B) OF THE ACT, SHOULD NOT BE LEVIED; PARTICULARLY WHEN THE ORDER IS PASSE D BY ASSESSING OFFICER U/S 143(3) OF THE ACT. HOWEVER, THE LD. D.R. FOR THE R EVENUE SUBMITTED THAT THE AKASHGANGA SUPPLIERS PVT. LTD. ITA NO.132/KOL/2019 ASSESSMENT YEAR:2014-15 P PP PA AA AG GG GE EE E | || | 3 33 3 ASSESSEE WAS NOT SERIOUS IN SUBMITTING THE DETAILS AND DOCUMENTS BEFORE THE ASSESSING OFFICER THEREFORE PENALTY SHOULD BE IMPOS ED. WE NOTE THAT THE INSTANT APPEAL IS SQUARELY COVERED BY THE DECISION OF CO-OR DINATE BENCH OF ITAT DELHI IN THE CASE OF AKHIL BHARTIYA PRATHMIK SHIKSHAK SANGH BHAWAN TRUST VS. ACIT REPORTED IN 5 DTR 429 (DEL-TRIB) WHEREIN THE CO-ORD INATE BENCH IN PARA NO. 2.4 AND 2.5 HAS HELD AS UNDER: 2.4 COMING TO THE ISSUE OF RECORDING OF SATISFACTI ON, IT MAY BE MENTIONED THAT MERE INITIATION OF PENALTY DOES NOT AMOUNT TO SATIS FACTION AS HELD BY HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. RAM COMMERC IAL ENTERPRISES LTD. (2001) 167 CTR (DEL) 321 : (2000) 246 ITR 568 (DEL). IN AB SENCE OF RECORDING OF THE SATISFACTION IN THE ASSESSMENT ORDER, MERE INITIATI ON OF PENALTY WILL NOT CONFER JURISDICTION ON THE AO TO LEVY THE PENALTY. 2.5 WE ALSO FIND THAT FINALLY THE ORDER WAS PASSED UNDER S. 143(3) AND NOT UNDER S. 144 OF THE ACT. THIS MEANS THAT SUBSEQUENT COMPL IANCE IN THE ASSESSMENT PROCEEDINGS WAS CONSIDERED AS GOOD COMPLIANCE AND T HE DEFAULTS COMMITTED EARLIER WERE IGNORED BY THE AO. THEREFORE, IN SUCH CIRCUMSTANCES, THERE COULD HAVE BEEN NO REASON TO COME TO THE CONCLUSION THAT THE DEFAULT WAS WILLFUL. CONSIDERING THE ABOVE FACTUAL POSITION AS NARRATED ABOVE, WE NOTE THAT THE ASSESSEE MADE SUFFICIENT COMPLIANCE DURING THE ASSESSMENT PR OCEEDINGS THEREFORE PENALTY SHOULD NOT BE LEVIED, HENCE WE DELETE THE PENALTY U /S 271(1)(B) OF THE ACT. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE COURT ON 31.12 .2019 SD/- ( S.S.GODARA ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / DATE: 31/12/2019 ( SB, SR.PS ) AKASHGANGA SUPPLIERS PVT. LTD. ITA NO.132/KOL/2019 ASSESSMENT YEAR:2014-15 P PP PA AA AG GG GE EE E | || | 4 44 4 COPY OF THE ORDER FORWARDED TO: 1. AKASHGANGA SUPPLIERS PVT. LTD. 2. ITO, WARD-4(3), KOLKATA 3. C.I.T(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 6. GUARD FILE. TRUE COPY BY ORDER ASSIST ANT REGISTRAR ITAT, KOLKA TA BENCHES