M/s Shree Construction & Associates, Koraput V. ITO, Jeypore

ITA 133/CTK/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4397 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2011
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 10-05-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 15-04-2010
• Court: TRIBUNAL
• Department Lawyers: S C MOHANTY
• Keywords: Onus to prove; Set aside

Judgement Text

IN THE INCME TAX APPELLATE TRIBUNAL,CUTTACK BENCH, CUTTACK BEFORE : HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER, AND HONBLE SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER. ITA NO. 133/CTK/2010 (ASSESSMENT YEAR 2003 - 04) M/S. SHREE CONSTRUCTION & ASSOCIATES, JEYPORE, KORAPUT. PAN:ABBFS 8053 K VERSUS INCOME - TAX OFFICER, WARD 2, JEYPORE. (APPELLANT) (RESPONDENT) FOR THE APPELLANT: NONE FOR THE RESPONDENT SHRI S.C.MOHANTY, DR ORDER SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER : THIS APPEAL IS FILED BY THE ASSES SEE HAVING BEEN AGGRIEVED BY THE ORDER OF THE COMMISSIONER OF INCOME - TAX (APPEALS) DT.4.1.2010 CONFIRMING THE PENALTY OF RS.65,049 LEVIED U/S.271(1)(C) OF THE INCOME - TAX ACT,1961 FOR THE ASSESSMENT YEAR 2003 - 04. 3. THE FACTS, IN BRIEF, ARE THAT THE ASSESS EE DERIVES INCOME FROM CONTRACT WORKS, TRANSPORT BUSINESS AND SUPPLY OF FIRE WOODS. IT FILED THE RETURN OF INCOME ON 31.3.2004, WHICH WAS PROCESSED U/S.14 3(1). SUBSEQUENTLY, THE CASE WA S SELECTED FOR SCRUTINY AND ASSESSMENT U/S.143(3) WAS COMPLETED BY ESTI MATING THE NET PROFIT @8% OF THE CONTRACT RECEIPTS , WHICH WAS REDUCED TO 5% BY THE LEARNED CIT(A) ON APPEAL. ON THE GROUND OF CONCEALMENT OF INCOME, THE ASSESSING OFFICER INITIATED THE PENALTY PROCEEDINGS AND ISSUED NOTICE. SINCE THE ASSESSEE DID NOT RESPO ND TO SUCH NOTICE, THE ASSESSING OFFICER LEVIED PENALTY OF RS.65,049 U/S.271(1)(C) OF THE I.T.ACT, BEING 100% OF TAX SOUGHT TO BE EVADED. AGAINST THIS, THE ASSESSEE PREFERRED APPEAL AND THE LEARNED CIT(A) CONFIRMED THE LEVY OF PENALTY AND HENCE, THE ASSESS EE IS IN APPEAL HERE BEFORE THE TRIBUNAL. ITA NO. 133/CTK/2010 2 4. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE DUE NOTICE. THEREFORE, WE PROCEEDED TO DECIDE THE APPEAL EXPARTE QUA ASSESSEE AFTER HAVING HEARD THE LEARNED DR. 5. AFTER HEARING THE LEARNED DR AND GOING THROUGH THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW, IT IS SEEN THAT UNDISPUTEDLY THE ASSESSEE HAS FILED THE RETURN WHICH WAS TAKEN UP FOR SCRUTINY ASSESSMENT AND WHILE DOING SO, THE ASSESSING OFFICER REJECTED THE BOOKS OF ACCOUNT AND ESTIMATED THE PROFIT @8% ON THE GROSS CONTRACT RECEIPTS, WHICH WAS REDUCED BY THE LEARNED CIT(A) TO 5% ON APPEAL. ON THESE FACTS , THE ASSESSING OFFICER HAS LEVIED PENALTY U/S.271(1)(C) OF THE I.T.ACT ON THE GROUND OF CONCEALMENT OF INCOME. HONBLE PUNJAB HIGH COURT IN THE CASE OF HAR IGOPAL SINGH V. CIT [2002] 258 ITR 85 [2002] 125 TAXMAN 252 (PUNJ. & HAR.), HAS HELD THAT WHERE THE ASSESSEE HAD NOT MAINTAINED ANY ACCOUNTS BUT HAD FILED HIS RETURN OF INCOME ON ESTIMATE BASIS, AND THE ASSESSING OFFICER MADE HIS OWN ESTIMATE WITH WHICH TH E TRIBUNAL DID NOT AGREE, IT COULD NOT BE SAID THAT THE ASSESSEE HAD CONCEALED HIS INCOME SO AS TO ATTRACT PENALTY. THERE HAS TO BE A POSITIVE ACT OF CONCEAL MENT ON THE ASSESSEES PART AND THE ONUS TO PROVE THIS IS ON THE DEPARTMENT. ON ANALYSIS OF THE UNDISPUTED FACTS IN THE PRESENT CASE ON HAND IN THE LIGHT OF THE ABOVE DICTUM OF HONBLE PUNJAB HIGH COURT, WE ARE OF THE CONSIDERED VIEW THAT THE PENALTY U/S.271(1)(C) OF THE I.T.ACT LEVIED BY THE ASSESSING OFFICER HAVING BEEN BASED ONLY ON ESTIMATION OF INCOME, THE SAID PENALTY CANNOT BE SUSTAINED AND AS SUCH, WE SET ASIDE THE IMPUGNED ORDER OF THE LEARNED CIT(A) AND ALLOW THE APPEAL OF THE ASSESSEE BY CANCELLING THE PENALTY LEVIED U/S.271(1)(C) OF THE INCOME - TAX ACT,1961. ITA NO. 133/CTK/2010 3 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON DT. 27 TH MAY, 2011 SD/ - SD/ - (K.K.GUPTA) ACCOUNTANT MEMBER (K.S.S.PRASAD RAO) JUDICIAL MEMBER DATE: 27 TH MAY, 2011 H.K.PADHEE, SENIOR PRIVATE SECRETARY. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT: M/S. SHREE CONSTRUCTION & ASSOCIATES, JEYPORE, KORAPUT. 2. THE RESPONDENT: INCOME - TAX OFFICER, WARD 2, JEYPORE. 3. THE CIT, 4. THE CIT(A), 5. THE DR, CUTTACK 6. GUARD FILE (IN DUPLICATE) TRUE COPY, BY ORDER, SENIOR PRIVATE SECRETARY.