Parwati Lakh Udyog, Kolkata V. ACIT, CIR-43, KOLKATA, Kolkata

ITA 1381/KOL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1592 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-07-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 23-05-2017
• Assessment Year: 2003-2004
• Appeal Filed On: 17-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAURABH KUMAR

Judgement Text

1 ITA NO.1381/KOL/2014 PARWATI LAKH UDYOG, AY 2003-04 , B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA () BEFORE .., /AND . , ) [BEFORE SHRI A. T. VARKEY, JM & SHRI M. BALAGANESH , AM] I.T.A. NO. 1381/KOL/2014 ASSESSMENT YEAR: 2003-04 PARWATI LAKH UDYOG (PAN: AADFP6755E) VS. ASSISTANT COMMISSIONER OF INCOME- TAX, CIRCLE-43, KOLKATA. APPELLANT RESPONDENT DATE OF HEARING 29.06.2017 DATE OF PRONOUNCEMENT 07.07.2017 FOR THE APPELLANT SHRI SUBASH AGARWAL, ADVOCATE FOR THE RESPONDENT SHRI SAURABH KUMAR, ADDL. CIT, S R. DR ORDER PER SHRI A.T.VARKEY, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-XXX, KOLKATA DATED 08.01.2014 FOR AY 2003-04 CONFIRMING THE PENA LTY U/S. 271(1)(C) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE AS SESSEE SHRI SUBASH AGARWAL, ADVOCATE DREW OUR ATTENTION TO PAGE NO. 1 AND 1A OF PAPER BO OK WHEREIN THE NOTICE U/S. 274 R.W.S. 271 OF THE ACT DATED 26.11.2008 SERVED ON THE ASSESSEE WHEREIN WE NOTE THAT THE AO HAS NOT STRICKEN OUT THE LIMB OF CHARGE/DEFAULT FOR WHICH T HE PENALTY IS BEING INITIATED AGAINST THE ASSESSEE. WE FIND THAT THE NOTICE HAS BEEN ISSUED FOR HAVING CONCEALED THE PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME WITHOUT SPECIFYING FOR WHICH FAULT THE ASSESSEE IS BEING PROCEEDED AGAINST. WE NOTE THAT IN A SIMILAR CASE THE HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF CIT VS MANJUNATHA COTTON AND GINNING FACTORY REPORTED IN (2013) 359 ITR 565 (KAR) HAS CANCELLED THE PENALTY TAKING NOTE OF THE FACT THAT THE PENALTY NOTICE DID NOT SPELL OUT CLEARLY AS TO WHETHER THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME OR HAS FURNISHED INACCURATE P ARTICULARS OF INCOME. WE ALSO FIND THAT 2 ITA NO.1381/KOL/2014 PARWATI LAKH UDYOG, AY 2003-04 HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. SSAS EMERALD MEADOWS, REPORTED IN (2016) 73 TAXMANN.COM 241 (KAR) ENDORSED THE SAME V IEW IN MANJUNATHA COTTON AND GINNING FACTORY (SUPRA) AND HELD AS UNDER: 3. THE TRIBUNAL HAS ALLOWED THE APPEAL FILED BY T HE ASSESSEE HOLDING THE NOTICE ISSUED BY THE ASSESSING OFFICER UNDER SECTION 274 READ WITH S ECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT), TO BE BAD IN LAW AS IT DID NOT SPECIFY WHICH LIMB OF SECTION 271(1)(C) OF THE ACT, THE PENALTY PROCEEDINGS HAD B EEN INITIATED I.E., WHETHER FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE TRIBUNAL, WHILE ALLOWING THE APPEAL OF THE ASSESSEE , HAS RELIED ON THE DECISION OF THE DIVISION BENCH OF THIS COURT RENDERED IN THE CASE O F CIT VS. MANJUNATHA COTTON & GINNING FACTORY (2013) 359 ITR 565/218 TAXMAN 423/35 TAXMAN N.COM 250(KAR). 4. IN OUR VIEW, SINCE THE MATTER IS COVERED BY JUD GMENT OF THE DIVISION BENCH OF THIS COURT, WE ARE OF THE OPINION, NO SUBSTANTIAL QUESTION OF L AW ARISES IN THIS APPEAL FOR DETERMINATION BY THIS COURT. THE APPEAL IS ACCORDINGLY DISMISSED . WE ALSO FIND THAT THE AFORESAID ORDER OF THE HONBL E HIGH COURT WAS CHALLENGED BY THE DEPARTMENT BEFORE THE HONBLE SUPREME COURT BY PREF ERRING AN SLP WHICH HAS BEEN DISMISSED WHICH FACT HAS BEEN REPORTED IN CIT VS. S SAS EMERALD MEADOWS (2016) 73 TAXMANN.COM 248 (SC). 3. WE NOTE THAT SINCE THE PENALTY NOTICE ISSUED TO THE ASSESSEE DATED 31.12.2007 DID NOT SPELL OUT AS TO WHICH DEFAULT THE ASSESSEE HAS COMM ITTED FOR WHICH PENALTY U/S. 271(1)(C) OF THE ACT HAS BEEN INITIATED, THEREFORE, RESPECTFULLY FOLLOWING THE HONBLE KARNATAKA HIGH COURTS ORDER IN MANJUNATHA COTTON & GINNING FACTOR Y (SUPRA) AND SSAS EMERALD MEADOWS (SUPRA), WE CANCEL THE PENALTY IMPOSED BY T HE AO WHICH HAS BEEN ERRONEOUSLY CONFIRMED BY THE LD. CIT(A). THEREFORE, APPEAL OF THE ASSESSEE IS ALLOWED. 4. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 07.07.2017 SD/- SD/- (M. BALAGANESH) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 7 TH JULY, 2017 JD.(SR.P.S.) 3 ITA NO.1381/KOL/2014 PARWATI LAKH UDYOG, AY 2003-04 COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT PARWATI LAKH UDYOG, 135A, CHITTARANJAN AVENUE, 3 RD FLOOR, ROOM NO. 30, KOLKATA-700 007. 2 RESPONDENT ACIT, CIRCLE-43, KOLKATA. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, SR. PVT. SECRETARY