M/s ANAND SALES, DURG(CG) V. THE INCOME TAX OFFICER-4, BHILAI(CG)

ITA 147/BIL/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3912 (ITAT-RAIPUR)
• Duration Of Justice: 2 year(s) 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 17-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R P NAMDEO
• Keywords: Initiation of penalty proceedings

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, RAIPUR BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI PARTHA SARATHI CHAUDHURY, JM / ITA NO.147/RPR/2016 / ASSESSMENT YEAR : 2008-09 M/S. ANAND SALES, BHILAI, STEEL NAGAR, CAMP-1, BHILAI, DURG (C.G.) PAN : AAJFA0009Q .... APPELLANT / V/S. THE INCOME TAX OFFICER-4, AAYAKAR BHAWAN, NEW CIVIC CENTRE, BHILAI. / RESPONDENT ASSESSEE BY : NONE REVENUE BY : SHRI R.P. NAMDEO / DATE OF HEARING : 18.01.2019 / DATE OF PRONOUNCEMENT : 30.01.2019 / ORDER PER PARTHA SARATHI CHAUDHURY, JM : THIS APPEAL PREFERRED BY THE ASSESSEE EMANATES FROM TH E ORDER OF LD. CIT(APPEALS)-II, RAIPUR (C.G) DATED 23.03.2016 FOR THE ASSESS MENT YEAR 2008- 09 AS PER GROUNDS OF APPEAL ON RECORD. 2. THE SOLITARY GRIEVANCE OF THE ASSESSEE IS THE IMPOSITION OF PENALTY U/S.271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRE D TO AS THE ACT) OF RS.18,230/-. 2 ITA NO. 147/RPR/2016 A.Y.2008-09 3. AT THE TIME OF HEARING, NEITHER THE ASSESSEE NOR HIS A UTHORIZED REPRESENTATIVE WAS PRESENT. WE HAVE RECORDED THE PRESENCE OF T HE LD. DR. 4. THAT ON PERUSAL OF THE RECORDS OF THE CASE, IT IS NOTICE D THAT IN THE ASSESSMENT ORDER, THE PENALTY HAS BEEN LEVIED FOR FURNISH ING INACCURATE PARTICULARS OF INCOME, WHEREAS, IN THE PENALTY ORDER, THE A SSESSING OFFICER HAS LEVIED THE PENALTY FOR CONCEALMENT OF INCOME. THERE IS , THEREFORE, CONTRAVENTION IN VIEW AS TO WHICH SPECIFIC LIMB OF SECTION 271 (1)(C) OF THE ACT, PENALTY IS TO BE LEVIED ON THE ASSESSEE. THE LEGAL POSITION ON THIS ISSUE IS ABSOLUTELY CLEAR THAT THE ASSESSING OFFICER WHILE IMPOSING PE NALTY SHOULD BE SPECIFIC TO THE LIMB ON WHICH PENALTY U/S.271(1)(C) IS TO BE LEVIE D ON THE ASSESSEE. 5. IT IS EVIDENT FROM THE ASSESSMENT ORDER THAT AT THE TIME OF INITIATION OF PENALTY PROCEEDINGS IN THE ASSESSMENT, AO MENTIONED ONE LIMB OF CLAUSE (C) OF SECTION 271(1) OF THE ACT I.E. FURNISHING INACCURATE PART ICULARS OF INCOME. HOWEVER, AT THE TIME OF LEVYING PENALTY, THE ASSESSING OFFICE R HAS MENTIONED ANOTHER LIMB OF CLAUSE(C) OF SECTION 271(1) OF THE ACT I.E. CONC EALMENT OF INCOME. THIS MANNER OF RECORDING OF SATISFACTION SUGGEST S THE EXISTENCE OF AMBIGUITY WITH REFERENCE TO APPLICABILITY OF SPECIFIC LIMB. 6. WITH REGARD TO THE LEGAL REQUIREMENT OF MAKING A SPECIFIC REFERENCE TO THE SPECIFIC LIMB OF CLAUSE (C) OF SECTION 271(1) OF THE ACT, WE H AVE CONSIDERED VARIOUS BINDING JUDGMENTS IN THE CASE CIT VS. SHRI SAMSON PERINCHERY (2017) 392 ITR 4 (BOM.) AS WELL AS THE JUDGMENT OF HONBLE KARNAT AKA HIGH COURT IN THE CASE OF CIT VS. MANJUNATHA COTTON AND GINNING FACTORY 359 ITR 5 65. 3 ITA NO. 147/RPR/2016 A.Y.2008-09 THEREFORE, WE ARE OF THE CONSIDERED VIEW PLACING RELIANCE ON THE AFORESAID BINDING JUDGMENTS THAT SUCH PENALTY ORDER IS UN SUSTAINABLE IN LAW. AO IS UNDER OBLIGATION TO SPECIFY THE CORRECT LIMB AT THE TIME OF INITIATION AS WELL AS AT THE TIME OF LEVY OF PENALTY. THUS, THE ORDER O F CIT(A) IS SET-ASIDE AND WE DIRECT THE AO TO DELETE THE PENALTY. ACCORDINGLY , THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE ALLOWED. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 30 TH DAY OF JANUARY, 2019. SD/- SD/- ANIL CHATURVEDI PARTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER / RAIPUR ; / DATED : 30 TH JANUARY, 2019. SB !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT (APPEALS)-II, RAIPUR (C.G) 4. THE PR. CIT-II, RAIPUR (C.G) !'# $$%& , ' %& , ()* , / DR, ITAT, RAIPUR BENCH, RAIPUR. 6. #+,-. / GUARD FILE. // TRUE COPY // '0 / BY ORDER, $1 %* / PRIVATE SECRETARY ' %& , / ITAT, RAIPUR. 4 ITA NO. 147/RPR/2016 A.Y.2008-09 DATE 1 DRAFT DICTATED ON 18 .01.2019 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 28 .01 .201 9 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER