M/s Ashok Trading Co., Kolkata V. I.T.O Wd - 45(2),kolkata., Kolkata

ITA 141/KOL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99690 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 18-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S UBHAJYOTI BHATTACHARYA
• Assessee Lawyers: V N PUROHIT; H V BHARDWAJ ACA

Judgement Text

I.T.A. NO . 141 / KOL ./20 1 3 ASSESSMENT YEAR: 200 6 - 20 0 7 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B BENCH, KOLKATA BEFORE SHRI S.V. MEHROTRA , ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH , JUDICIAL MEMBER I.T.A. NO. 141/ KOL / 20 1 3 ASSESSMENT YEAR : 200 6 - 20 0 7 M/S. A SHOK TRADING CO.,................ ......... .... ........ . APPELLANT 13, NOORMAL LOHIA LANE, KOLKATA - 700 007 [PAN : AA G FA 0299 M ] - VS. - I NCOME TAX OFFICER , ........................ ..... ....... ..... . RESPONDE NT WARD - 45(2), KOLKATA, 3, GOVT. PLACE WEST, KOLKATA - 700 001 APPEARANCES BY: SHRI V .N. PUROHIT, FCA AND SHRI H.V. BHARDWAJ, ACA , FOR THE ASSESSEE SHRI SUBHAJYOTI BHATTACHARYA , JCIT, SR. D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : AUGUST 04 , 2 01 5 DATE OF PRONOUNCING THE ORDER : AUGUST 06 , 201 5 O R D E R PER S.V. MEHROTRA : THIS A PPEAL HA S BEEN FILED BY THE ASSESSE E AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS) - XXX, KOLKATA D ATED 18 . 10 .20 1 2 FOR THE ASSESSMENT YEAR 200 6 - 0 7 BY TAKING THE FOLLOWING EFFECTIVE GROUND OF APPEAL: - T HAT O RDER OF COMMISSION ER OF INCOME TAX (APPEAL) - XXX CONFIRMING THE PENALTY IMPOSED UNDER SECTION 271FB OF THE I.T. ACT, 1961 IS BAD IN LAW AND ON THE FACTS AND UNDER THE CIRCUMSTANCES OF THE CASE . 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESESE FILED ITS RETURN OF INCOME DE CLARING TOTAL INCOME OF RS. 8.95,090/ - . IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICED THAT THE ASSE S SEE DID NOT FILE ITS RETURN OF FBT FOR THE ASSESSMENT YEAR 2006 - 07, ALTHOUGH I.T.A. NO . 141 / KOL ./20 1 3 ASSESSMENT YEAR: 200 6 - 20 0 7 PAGE 2 OF 4 THERE WAS TAXABLE FRINGE BENEFITS DURING THE YEAR. THE ASSESSING OFFICER AFTER CONSIDERING THE ASSESSEE S SUBMISSIONS ADDED RS.1,38,406/ - AS TOTAL FRINGE BENEFITS OF THE ASSESSEE AS UNDISCLOSED FRINGE BENEFITS. AS THE ASSESSEE FAILED TO FILE ANY RETURN OF FBT EVEN WITHIN THE TIME AS PROVIDED UNDER SECTION 115W D(1) , T HEREFORE, NOTICE UNDER SECTION 115WH WAS ISSUED BY THE ASSESSING O FFICER TO THE ASSESSEE CALLING FOR RETURN OF FBT, BUT THE ASSESSEE FAILED TO FURNISH THE SAME TILL COMPLETION OF THE ASSESSMENT. ACCORDINGLY PENALTY PROCEEDING UNDER SECTION 271FB WAS INITIATED. 3. LD. COUNSEL OF THE ASSESSEE IN HIS REPLY, INTER ALIA, SUBMITTED THAT THE RETURN WAS FILED WITHIN THE DUE TIME. HOWEVER, SINCE THIS CLAIM WAS NOT DULY SUPPORTED BY EVIDENCE, THE ASSESSING OFFICER LEVIED THE PENALTY OF RS.1,18,800/ - UNDER SEC TION 271FB OF THE ACT. 4. BEFORE THE LD. CIT(APPEALS), IT WAS SUBMITTED BY THE LD. D.R. THAT THIS YEAR WAS THE FIRST YEAR OF APPLICABILITY OF FRINGE BENEFIT TAX UNDER THE INCOME TAX ACT, 1961 AND THE ASSESESE FAILED TO FILE THE RETURN. HOWEVER, THE ASSES SING OFFICER ASSESSED THE FRINGE BENEFIT TAX AS PER DETAILS FILED BY THE ASSESSEE. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE WAS UNDER THE IMPRESSION THAT THE RETURN WAS FILED ALONG WITH THE INCOME TAX RETURN AS WAS THE REQUIREMENT OF FILING RETURN FOR SU BSEQUENT YEARS. THE LD. CIT(APPEALS) AFTER CONSIDERING THE ASSESSEE S SUBMISSIONS CONFIRMED THE APPELLANT. 5. BEING AGGRIEVED WITH THE ORDER OF LD. CIT(APPEALS), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 6. AT THE TIME OF HEARING BEFORE US, LD. COU NSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE WAS REPRESENTED BY CA AND IT WAS UNDER THE IMPRESSION THAT ALL THE STATUTORY REQUIREMENTS HAVE BEEN COMPLIED WITH FOR FILING RETURN . HE REITERATED THE SUBMISSIONS MADE BEFORE THE LOWER AUTHORITIES. I.T.A. NO . 141 / KOL ./20 1 3 ASSESSMENT YEAR: 200 6 - 20 0 7 PAGE 3 OF 4 7. ON T HE OTHER HAND, LD. D.R. FOR THE REVENUE RELIED ON THE ORDER OF LD. CIT(APPEALS). 8 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND HAVE PERUSED THE RECORDS OF THE CASE. THERE IS NO DISPUTE THAT THE ASSESSEE WAS REQUIRED TO FILE THE RETURN OF F RINGE BENEFIT. AS PER SUB - SECTION (2) OF SECTION 115WD , IF THE ASSESSEE HAD NOT FILED THE RETURN OF FRINGE BENEFIT BUT IN THE OPINION OF ASSESSING OFFICER HE SHOULD HAVE FILED THE RETURN, THE ASSESSING OFFICER WOULD ISSUE NOTICE REQUIRING IT TO FILE SUCH RETURN, BUT NO SUCH NOTICE WAS ISSUED BY THE ASSESSING OFFICER. ALL THE FACTS CAME TO THE NOTICE OF THE ASSESSING OFFICER ONLY IN THE COURSE OF ASSESSMENT PROCEEDINGS AND THERE IS NO CHARGE OF THE D EPARTMENT THAT THE ASSESSEE CONCEALED ANY PARTICULARS OR SUBMITTED INACCURATE PARTICULARS OF INCOME. NO DOUBT, THERE IS SPECIFIC REQUIREMENT OF FILING THE RETURN OF INCOME, BUT SINCE IT WAS THE FIRST YEAR OF APPLICABILITY OF FRINGE BENEFIT TAX, WHEN FBT RETURN WAS REQUIRED TO BE FILED AND DUE TAXES WERE PAID BY ASSESSEE , THEREFORE, WE ARE OF THE OPINION THAT THE DEFAULT ON THE PART OF THE ASSESSEE CANNOT BE CONSIDERED AS MALAFIDE AND WE CANCEL THE PENALTY FOR NON - FILING OF RETURN. 9 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSE E IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH AUGUST , 201 5 . SD/ - SD/ - MAHAVIR SINGH S.V. MEHROTRA ( JUDICIAL MEMBER) ( ACCOUNTANT MEMBER) KOLKATA, THE 6 TH D AY OF AUGUST , 201 5 COPIES TO : (1) M/S. ASHOK TRADING CO., C/O. V.N. PUROHIT & CO., CHARTERED ACCOUNTANTS, DIAMOND CHAMBERS, UNIT - III., 4 TH FLOOR, SUITE NO.4G, 4, CHOWRINGHEE LANE, KOLKATA - 700 016 I.T.A. NO . 141 / KOL ./20 1 3 ASSESSMENT YEAR: 200 6 - 20 0 7 PAGE 4 OF 4 (2) INCOME TAX OFFICER, WARD - 45(2), KOLKATA, 3, GOVT. PLACE WEST, KOLKATA - 700 001 (3) COMMISSIONER OF INCOME - TAX (APP EALS) - XXX, KOLKATA (4) COMMISSIONER OF INCOME TAX - , KOLKATA ( 5 ) THE DEPARTMENTAL REPRESENTATIVE ( 6 ) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPEL LATE TRIBUNAL KOLKATA B ENCHES, KOLKATA LAHA/SR. P.S .