Dipu Kumar Jaiswal, Keonjhar V. ITO, Keonjhar Ward, Keonjhar

ITA 146/CTK/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0898 (ITAT-CUTTACK)
• Duration Of Justice: 2 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-06-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 26-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J K LENKJA
• Assessee Lawyers: SOMNATH SAHOOS N SAHU
• Section: 271(1)(c); 274; 73

Judgement Text

P A G E 1 | 4 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK SMC BENCH, CUTTACK BEFORE SHRI CHANDRA MOHAN GARG , JUDICIAL MEMBER ITA NO . 146 /CTK/201 8 ASSESSMENT YEAR : 2011 - 12 DIPU KUMAR JAISWAL, AT: HUDI SAHI, PO: JODA, KEONJHAR. VS. ITO, KEONJHAR PAN/GIR NO. AAVPJ 6866 E (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI SOMNATH SAHOO/S.N.SAHU, , AR REVENUE BY : SHRI J.K.LENKJA , DR DATE OF HEARING : 5 / 0 6 / 20 20 DATE OF PRONOUNCEMENT : 05 / 0 6 /20 20 O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT( A), CUTTACK DATED 19.2.2018 FOR THE ASSESSMENT YEAR 2011 - 12 . 2. THE ASSESSEE HAS RAISED ADDITIONAL GROUND OF APPEAL, WHICH READS AS UNDER: THAT THE PENALTY IMPOSED PENDING QUANTUM APPEAL IS PRE MATURE AND INVALID IN VIEW OF SECTION 275(1)(A) OF THE I.T.ACT, 1961. RELIANCE IS PLACED BY THE DECISION OF BOMBAY HIGH COURT IN THE CASE OF R.B.SHREERAM DURGAPRASAD VS CIT, 287 CTR 228 ORDER DATED 24.11.2015. 3. AT THE TIME OF HEARING, LD A.R. DID NOT P RESS THE ADDITIONAL GROUND APPEAL, HENCE, SAME IS DISMISSED AS NOT PRESSED. 4 . IN THE GROUNDS OF APPEAL, THE ONLY GRIEVANCE OF THE ASSESSEE IS THAT THE LD CIT(A) IS NOT JUSTIFIED IN CONFIRMING THE LEVY OF PENALTY U/S.271(1)(C) OF THE ACT OF RS.2,53,600/ - . ITA NO.146/CTK/2018 ASSESSMENT YEAR : 2011 - 12 P A G E 2 | 4 5 . AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THIS CASE, NOTICE U/S 274 R.W.S. 271 WAS ISSUED ON 31.3.2014 AND THE INAPPROPRIATE WORDS IN THE SAID NOTICE HAVE NOT BEEN STRUCK OFF. THEREFORE , IT IS NOT UNDERSTOOD AS TO UNDER WHICH LIMB OF PROVISIONS OF SECTION 271(1)(C) OF THE ACT, THE ASSESSING OFFICER HAS LEVIED PENALTY. SI NC E THE SAID SHOW CAUSE NOTICE ISSUED U/S 274 DID NOT SPECIFY TH E CHARGE AGAINST THE ASSESSEE AS TO WHETHER IT WAS FOR CONCEALING THE PARTICULARS OF INCOME OR FOR FURNISHING INACCURATE PARTICULARS OF INCOME , T HEREFORE, THE PENALTY ORDER PASSED UNDER SECTION 271(1)(C) OF THE ACT IN PURSUANCE TO THE SAID NOTICE IS BAD IN LAW. HE REFERRED TO THE DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. MANJUNATHA COTTON & GINNING FACTORY REPORTED IN 359 ITR 565 , WHICH DECISION HAS BEEN UPHELD BY THE HONBLE APEX COURT IN CASE OF CIT VS. SSAS EMERALD MEADOWS (2016) 73 TAXMAN.COM 248 (SC). THEREFORE, IT WAS HIS CONTENTION THAT THE PENALTY ORDER DESERVES TO BE QUASHED. 6 . ON THE OTHER HAND, LD D.R. SUPPORTED THE PENALTY ORDER AS WELL AS THE ORDER OF THE LD CIT(A). 7 . I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD, INTER ALIA, NOTICES U/S.274 READ WITH SECTION 271(1)(C) OF THE ACT DATED 31.3.2014 . I FIND THE ONLY ISSUE TO BE DECIDED IN THE GROUNDS OF APPEAL IS R EGARDING IMPOSITION OF PENALTY LEVIED U/S 271(1)(C) OF THE ACT. I FIND THAT IN THE PENALTY NOTICE INAPPROPRIATE WORDS HAVE NOT BEEN STRUCK ITA NO.146/CTK/2018 ASSESSMENT YEAR : 2011 - 12 P A G E 3 | 4 OFF. EVEN THE LAST LINE OF THE SAID NOTICE ONLY SPEAKS OF SECTION 271 AND DOES NOT EVEN MENTION OF SECTION 271(1)(C) OF THE I.T. ACT. IT IS PERTINENT TO NOTE HERE THAT THE PENALTY ORDER IS BASED ON FURNISHING OF INACCURATE PARTICULARS BUT THE NOTICE IS NOT SPECIFYING EXACTLY ON WHICH LIMB THE PENALTY U/S 271(1)(C) HAS BEEN INITIATED. FROM THE NOTICE DATED 31.3.2014, IT CAN BE SEEN THAT THE ASSESSING OFFICER WAS NOT SURE UNDER WHICH LIMB OF PROVISIONS OF SECTION 271 OF THE INCOME TAX ACT, 1961, THE ASSESSEE IS LIABLE FOR PENALTY. THEREFORE, T HE ISSUE IS SQUARELY COVERED BY THE DECISION OF THE HON'BLE SUPREME COURT IN CASE OF M/S SSA' EME RALD MEADOWS (SUPRA) . SINCE IN THE INSTANT CASE ALSO THE INAPPROPRIATE WORDS IN THE PENALTY NOTICE HA VE NOT BEEN STRUCK OFF AND THE NOTICE DO ES NOT SPECIFY AS TO UNDER WHICH LIMB OF THE PROVISIONS, THE PENALTY U/S 271(1)(C) HAS BEEN INITIATED, THEREFORE, I AM OF THE CONSIDERED OPINION THAT THE LD CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT. HENCE, I QUASH THE PENALTY ORDER AND ALLOW THE APPEAL OF THE ASSESSEE. 8 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORD ER PRONOUNCED ON 5 / 0 6 /20 20 . S D/ - ( CHANDRA MOHAN GARG) JUDICIAL MEMBER CUTTACK; DATED 5 / 0 6 /20 20 B.K.PARIDA, SPS ITA NO.146/CTK/2018 ASSESSMENT YEAR : 2011 - 12 P A G E 4 | 4 COPY OF THE ORDER FORWARDED TO : BY ORDER SR . PVT. S ECRETARY ITAT, CUTTACK 1. THE APPELLANT : DIPU KUMAR JAISWAL, AT: HUDI SAHI, PO: JODA, KEONJHAR 2. THE RESPONDENT. ITO, KEONJHAR 3. THE CIT(A) - , CUTTACK 4. PR.CIT - , CUTTACK 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//