W.S. Basheer, V. ITO,

ITA 1324/BANG/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0149 (ITAT-BANGALORE)
• Duration Of Justice: 2 year(s) 10 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 13-06-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 10-09-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VAR SREENIVASAN
• Assessee Lawyers: S RAMASUBRAMANIAN

Judgement Text

IN THE INCOME TAX APPELLATE TRI BUNAL BANGALORE BENCH B, BANGALORE BEFORE SHRI N.V.VASUDEVAN, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER ITA NO.1324(BANG) 2013 (ASSESSMENT YEAR : 2008-09) SHRI W.S.BASHEER, PROP: WAWANNA HARDWARE, NO.279, 27 TH CROSS, 3 RD BLOCK, JAYANAGAR, BANGALORE PAN NO.AAGPW0544B APPELLANT VS THE INCOME TAX OFFICER, WARD-4(1), BANGALORE RE SPONDENT ASSESSEE BY : SHRI S. RAMASUBRAMANIAN, CA REVENUE BY : VAR SREENIVASAN, JCIT DATE OF HEARING : 13-06-2016 DATE OF PRONOUNCEMENT : 2 2-07-2016 O R D E R PER SHRI A.K.GARODIA, AM: THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORDE R OF THE LD.CIT(A)-II, BANGALORE DATED 02-07-2013 FOR THE AS SESSMENT YEAR : 2008-09. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN ITS APPEAL; 1. THAT THE ORDER OF THE LD. CIT(A) IN SOFAR IT IS PREJUDICIAL TO THE INTEREST OF THE APPELLANT IS BAD IN- OPERATIVE IN LAW. ITA NO.1324(B)/13 2 2. THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN CONF IRMING THE LEVY OF PENALTY U/S 271(1)(C ) OF THE ACT. 3. THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE LEVY OF PENALTY MERELY BY REJECTING THE EXPLANATION OF THE APPELLANT WITHOUT BRINGING ON RE CORD ANY MATERIAL TO PROVE THAT THE APPELLANT HAS CONCEA LED THE INCOME. 4. THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE LEVY OF PENALTY IGNORING THE FACT TH AT THE APPELLANT HAS ACCEPTED THE ADDITION ONLY TO BUY PEA CE. EACH OF THE ABOVE GROUNDS IS WITHOUT PREJUDICE TO O NE ANOTHER AND THE APPELLANT CRAVES TO LEAVE OF HONBL E ITAT TO ADD, DELETE AMEND OR OTHERWISE MODIFIED EIT HER ALL OR ANY OF THE ABOVE GROUNDS EITHER BEFORE OR DU RING THE HEARING. 3. REGARDING THE ADDITIONAL GROUNDS, IT WAS SUBMIT TED BY THE LD. AR OF THE ASSESSEE THAT IN THE NOTICE ISSUED BY THE AO U/S 274 R.W.S.271 OF THE IT ACT, 1961 DATED 13-12-2010 OF WHICH HE SU BMITTED A COPY BEFORE US, THE AO HAS NOT SPECIFIED THE CHARGE AS T O WHETHER HE IS INTENDING TO LEVY PENALTY IN RESPECT OF CONCEALMENT OF INCOME OR IN RESPECT OF FURNISHING OF INACCURATE PARTICULARS OF INCOME. THEREAFTER, HE PLACED RELIANCE ON THE JUDGMENT OF THE HONBLE KARN ATAKA HIGH COURT IN THE CASE OF CIT VS MANJUNATHA COTTON & GINNING FACT ORY, AS REPORTED IN 359 ITR 565(KAR.) AND CONTENDED THAT AS PER THIS J UDGMENT, IN THE FACTS OF THE PRESENT CASE, PENALTY ORDER PASSED BY THE AO IS NOT SUSTAINABLE FOR THE REASON THAT THE AO HAS NOT SPECIFIED THE CH ARGE FOR WHICH HE IS INTENDING TO LEVY PENALTY. ITA NO.1324(B)/13 3 4. THE LD. DR OF THE REVENUE SUPPORTED THE ORDERS OF AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND WE FIND FORCE IN THE SUBMISSIONS OF THE LD. AR OF THE ASSESSEE BECAU SE, WE FIND THAT IN THE NOTICE ISSUED BY THE AO U/S 274 OF THE IT ACT, R.W.S.271(1)(C ) OF THE IT ACT, 1961 THE AO HAS NOT SPECIFIED THE CHARGE AG AINST THE ASSESSEE AS TO WHETHER THE ALLEGATION IS FOR THE CONCEALMENT OF INCOME OR FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. UN DER THE FACTS, AS PER JUDGMENT OF THE HONBLE KARNATAKA HIGH COURT CITED BY THE LD. AR OF THE ASSESSEE AS NOTED ABOVE, THE PENALTY ORDER PASSED B Y THE AO IS NOT SUSTAINABLE. THEREFORE, WE QUASH THE SAME. 6. IN VIEW OF OUR DECISION, WITH REGARD TO ADDITIO NAL GROUNDS THE MAIN GROUNDS IN THE APPEAL MEMO DO NOT REQUIRE ANY SEPARATE ADJUDICATION. 7. IN THE RESULT, THE APPEAL FILED B Y THE ASSESSE E IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- (N.V.VASUDEVAN) SD/- (A.K. GARODIA) JUDICAL MEMBER AC C OUNTANT MEMBER BANGALORE: D A T E D : 22.07.2016 AM* ITA NO.1324(B)/13 4 COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A)-II BANGALORE 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER, AR, ITAT, BANGALORE 1. DATE OF DICTATION .. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P. S. .. 4 DATE ON WHICH THE ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT .. 5. DATE ON WHICH THE ORDER COMES BACK TO THE SR. P.S. .. 6. D ATE OF UPLOADING THE ORDER ON WEBSITE .. 7. IF NOT UPLOADED, FURNISH THE REASON FOR DOING SO . 8. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 9. DATE ON WHICH ORDER DOES FOR XEROX & ENDORSEMENT . 10. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK. 11 THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER. 12 THE DATE ON WHICH THE FILE GOES TO THE DISPATCH SEC TION FOR DISPATCH OF THE TRIBUNAL ORDER 13 DATE OF DISPATCH OF ORDER