Swapan Kumar Poddar, Kolkata V. ITO, WD-41(3), KOLKATA, Kolkata

ITA 1390/KOL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1207 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 9 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 27-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARINDAM BHTTACHARJEE
• Assessee Lawyers: S P DUTTA
• Section: 80HHC

Judgement Text

1 ITA NO.1390/KOL/2016 SWAPAN KUMAR PODDAR A.Y.2003-0 4 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH D KOL KATA [BEFORE HONBLE SHRI WASEEM AHMED, AM & SHRI S.S. VISWANETHRA RAVI, JM ] ITA NO.1390/KOL/2016 ASSESSMENT YEAR : 2003-04 SHRI SWAPAN KUMAR PODDAR -VERSUS- I.T.O., WARD-41 (3), KOLKATA KOLKATA (PAN: AFLPP 3267 L) (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI S.P.DUTTA, ADVOCATE FOR THE RESPONDENT: SHRI ARINDAM BHTTACHARJEE, ADDL . CIT DATE OF HEARING : 01.02.2018. DATE OF PRONOUNCEMENT : 28.03.2018. ORDER PER S.S.VISWANETHRA RAVI, JM THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 19.02.2016 PASSED BY C.I.T-(A)-13, KOLKATA FOR A.Y.2003-04 WHEREIN HE H AS CONFIRMED THE PENALTY IMPOSED ON THE ASSESSEE BY THE AO U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (ACT). 2. THE LD. AR SUBMITS THAT THE ASSESSEE CLAIMED DE DUCTION U/S 80HHC OF THE ACT FOR AN AMOUNT OF RS.19,74,566/- WHEREAS ON EXAMINAT ION OF THE MATERIAL FACTS ON RECORD THE AO RESTRICTED THE SAID CLAIM TO RS.9,80, 169/-. THEREAFTER THE AO INITIATED PENALTY PROCEEDINGS FOR CONCEALMENT OF INCOME AS WE LL AS FURNISHING INACCURATE PARTICULARS OF INCOME. THE CIT(A) CONFIRMED THE PEN ALTY IMPOSED BY THE AO. 3. THE LD. AR PLACED RELIANCE ON THE DECISION OF TH E HONBLE ITAT, DELHI IN THE CASE OF CREW BOS PRODUCTS PVT. LTD. VS D.I.T. ORDER DATED 08.08.2014 AND BY REFERRING TO PAGE NO.8 ARGUED THAT THE ASSESSEE HAS GIVEN FULL MATERIAL FACTS BEFORE THE AO AND HAVING GIVEN ALL THE MATERIAL FACTS BEFORE T HE AO THE AO COMPUTED THE DEDUCTION U/S 80HHC OF THE ACT AND RESTRICTED THE S AME TO AN EXPENDITURE OF 2 ITA NO.1390/KOL/2016 SWAPAN KUMAR PODDAR A.Y.2003-0 4 RS.9,80,169/-. IN SUCH CIRCUMSTANCES THE AO, HOLDI NG THE ASSESSEE HAS CONCEALED ITS PARTICULARS OF INCOME OR FURNISHING INACCURATE PART ICULARS OF INCOME AND INITIATING THE PENALTY PROCEEDINGS AND IMPOSING PENALTY THEREON IS NOT MAINTAINABLE UNDER LAW. . THE LD. AR DREW OUR ATTENTION TO THE FIRST APPELLAT E AUTHORITYS ORDER DATED 08.1.2017 FOR A.Y.2002-03 IN ASSESSEES OWN CASE WHEREIN THE CIT(A) HAVING CONSIDERED THE MATERIAL FACTS ON RECORD CANCELLED THE PENALTY IMPO SED BY THE AO ON SIMILAR SET OF FACTS. THE LD. AR ARGUED THAT PENALTY IMPOSED FOR T HE ASSESSMENT YEAR UNDER CONSIDERATION IS NOT MAINTAINABLE AS IT WAS A MISTA KE OF CLAIMING INCORRECT CLAIM BEFORE THE AO. THE LD. DR RELIED ON THE ORDER OF C IT(A). 4. HEARD RIVAL SUBMISSIONS AND PERUSED MATERIALS ON RECORD. IT IS OBSERVED FROM THE ORDER OF THE AO THAT THE ASSESSEE HAS CLAIMED D EDUCTION U/S 80HHC OF THE ACT AND THE AO RECOMPUTED THE SAME AND RESTRICTED TO RS.9,8 0,169/- AND IT IS CLEAR THAT THE ASSESSEE DISCLOSED FULL MATERIAL FACTS IN RESPECT O F DEDUCTION U/S 80HHC OF THE ACT AND THE AO WAS OF THE OPINION THAT THE ASSESSEE CLAIMED EXCESS DEDUCTION AND RESTRICTED THE SAME TO RS.9,80,169/-. WE FIND THAT THE ASSESEE PLACED RELIANCE ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF RELIANCE P ETRO PRODUCTS PVT. LTD. 322 ITR 158 (SC). HOWEVER, THE CIT(A) WITHOUT CONSIDERING T HE SAME UPHELD THE ORDER OF AO IMPOSING PENALTY U/S 271(1)(C) OF THE ACT. THE COOR DINATE BENCH OF DELHI TRIBUNAL IN THE CASE OF CREW BOS PRODUCTS PVT. LTD. (SUPRA) CON SIDERED THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF HINDUSTAN STEE L LTD AND THE DECISION OF THE HONBLE HIGH COURT OF DELHI IN THE CASE OF EXPORTS FINANCE LTD WHICH HELD THAT WHERE THE FACTS ARE FAIRLY DISCLOSED IN THE RETURN OF INC OME PENALTY CANNOT BE LEVIED MERELY BECAUSE AN AMOUNT IS ALLOWED OR TAXED AS INCOME. WE NOTE THAT THE FACTS IN THE PRESENT CASE ARE SIMILAR TO THE FACTS FOLLOWED IN THE CASE OF HINDUSTAN STEEL LTD AND EXPORT FINANCE LTD OF HONBLE SUPREME COURT AND HONBLE HI GH COURT RESPECTIVELY. WE FIND FORCE IN THE ARGUMENTS OF THE LD. AR IN HOLDIN G THAT THE AO CANNOT LEVY PENALTY U/S 271(1) (C) OF THE ACT. WE ALSO FIND IN A.Y.2002 -03 IN ASSESSEES OWN CASE ON SIMILAR SET OF FACTS THE AO IMPOSED PENALTY U/S 271 (1)(C) OF THE ACT. THE CIT(A) IN THE FIRST APPEAL BY PLACING RELIANCE IN THE CASE OF RELIANCE PETRO PRODUCTS LTDOF 3 ITA NO.1390/KOL/2016 SWAPAN KUMAR PODDAR A.Y.2003-0 4 HONBLE SUPREME COURT REPORTED IN 322 ITR 158 CANCE LLED THE PENALTY AS IT IS NOT LEVIABLE FOR MAKING AN INCORRECT CLAIM. THEREFORE I N VIEW OF THE DISCUSSION AND THE PRINCIPLES LAID DOWN BY THE HONBLE SUPREME COURT A ND THE HONBLE HIGH COURT OF DELHI WE CANCEL THE PENALTY LEVIED BY THE AO AND CO NFIRMED BY THE CIT(A) U/S 271(1)(C) OF THE ACT. ACCORDINGLY GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED. O RDER PRONOUNCED IN THE OPEN COURT ON 28.03.2018. SD/-/ SD/- [WASEEM AHMED] [ S.S.VISWANETHRA RAVI ] ACCOUNTANT MEMBER JUD ICIAL MEMBER DATED : 28.03.2018. [RG SR.PS] COPY OF THE ORDER FORWARDED TO: 1.SHRI SWAPAN KUMAR PODDAR, 521/A, RABINDRA SARANI, KOLKTA-700003. 2. I.T.O., WARD-41(3), KOLKATA. 3. C.I.T.(A)-13, KOLKATA 4. C.I.T. -15, KOLKATA.. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER, SENIOR PRIVATE SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHES 4 ITA NO.1390/KOL/2016 SWAPAN KUMAR PODDAR A.Y.2003-0 4