Rakesh Agarwal, Kolkata V. The ITO, Ward-45(1), Kolkata, Kolkata

ITA 1543/KOL/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 3326 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 26-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAURABH KUMAR CIT SRDR

Judgement Text

, C , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 1543 / KOL / 20 16 ASSESSMENT YEAR :2007-08 RAKESH AGARWAL 214, RABINDRA SARANI, GROUND FLOOR, KOLKATA-700001 [ PAN NO.ACRPA 1991 P ] V/S . INCOME TAX OFFICER WARD-45(1), 3, GOVT. PLACE(E), KOLKATA /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI MIS. VIJETA UNTWALIA AGARWAL, ACA /BY RESPONDENT SHRI SAURABH KUMAR, ADDL. CIT-SR-DR /DATE OF HEARING 12-07-2018 /DATE OF PRONOUNCEMENT 24-08-2018 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2007-08 ARISES FROM COMMISSIONER OF INCOME TAX (APPEALS)-13, KOLKATAS ORDER DATED 23.03.2016, PASSED IN CASE NO.521/CIT(A)-13/KOL/W-45(1)/2014-15 , UPHOLDING ASSESSING OFFICERS ACTION IMPOSING PENALTY OF 16,64,242/- IN HIS ORDER DATED 29.08.11, INVOLVING PROCEEDINGS U/S. 271(1)(C) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. WE NOTICE AT THE OUTSET THAT INSTANT APPEAL SUFF ERS FROM A DAYS DELAY IN FILING. THE ASSESSEE HAS FILED CONDONATION AFFIDAVI T DATED 24.08.2016 PLEADING ILLNESS OF THE IN-CHARGE PERSON, SHRI A.KJ. BANERJE E TO HAVE BEEN UNDERGOING TREATMENT OF HAEMATOLOGIST. LEARNED DEPARTMENTAL RE PRESENTATIVE IS VERY FAIR ITA NO.1543/KOL/2016 A.Y. 2007-08 RAKESH AGARWAL VS. ITO WD-45(1) KOL. PAGE 2 IN NOT OPPOSING CORRECTNESS THEREOF. WE THEREFORE C ONDONE THE IMPUGNED DELAY OF A DAYS DELAY IN FILING OF INSTANT APPEAL. 3. WE NOW ADVERT TO MERITS OF THE ISSUE. THERE IS N O DISPUTE THAT IMPUGNED THE PENALTY ARISES FROM ASSESSEES FAILURE IN PROVI NG THREE UNSECURE LOANS TOTALING 49.50LAKH SHOWN BY HIS PROPRIETORSHIP CONCERN M/S B ANSIDHAR MAHAVIR PRASAD & M/S BMP METALS AS WELL AS EPONYMOU S HUF BEING MANAGED AS A KARTA; AMOUNTING TO 23,35,000/-, 23,15,000/- AND 3,00,000/-; RESPECTIVELY. THE ASSESSING OFFICER HAD FRAMED HIS REGULAR ASSESSMENT ON 31.12.2009 QUOTING ASSESSEES FAILURE IN FILING THE NECESSARY CONFIRMATION AS WELL AS PRODUCING THE LOAN CREDITORS IN QUESTION DU RING THE COURSE OF SCRUTINY. THE SAID ADDITION WAS CONFIRMED IN CITS ORDER DATE D 22.02.2011 INVOLVING PROCEEDING U/S 264 OF THE ACT. WE DO NOT SEE ANY CH ANGE IN THE SAID FACTUAL POSITION. IT IS THEREFORE CLEAR THAT THE ABOVE QUAN TUM PROCEEDINGS ATTAINED FINALITY. 4. THE ASSESSING OFFICER QUOTED ALL THE ABOVE FACTS IN HIS PENALTY ORDER DATED 29.08.2011 TO CONCLUDE THAT ASSESSEES ACT AN D CONDUCT IN ALLEGEDLY FAILING TO DISCLOSE THE CONCERNED LOAN AMOUNTS AS H IS INCOME INVITES SECTION 271(1)(C) EXPLANATION-1 OF THE ACT. HE THUS IMPOSED THE PENALTY IN QUESTION AMOUNTING TO 16,64,242/- AS UPHELD DURING THE COURSE OF LOWER AP PELLATE PROCEEDINGS WITH A VERY DETAILED REASONING. 5. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL CONTENTIONS AGAINST AND IN SUPPORT OF IMPUGNED PENALTY. CASE FILE REVEA LS THAT THE ASSESSEE /HIS ABOVE TWO PROPRIETORY CONCERNS AND HUF HAD SHOWN TH E SAID UNSECURED LOANS IN THEIR RESPECTIVE BOOKS OF ACCOUNT. THE SOL E QUESTION THAT ARISES FOR OUR APT ADJUDICATION IS AS TO WHETHER SAME COULD BE TAKEN AS CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS THER EOF OR NOT. WE DO NOT SEE ANY REASON TO SUBSCRIBE TO THE LOWER AUTHORITIES ST AND IN INVOKING SECTION 271(1)(C) OF THE ACT. WE FIRST OF ALL QUOTE HON'BLE APEX COURTS DECISION IN CIT VS. RELIANCE PETRO PRODUCTS 32 ITR 158 (SC) THAT QU ANTUM AND PENALTY ARE PARALLEL PROCEEDINGS WHEREIN EACH AND EVERY DISALLO WANCE / ADDITION MADE IN COURSE OF THE FORMER DOES NOT IPSO FACTO INVITE THE LATTER PENAL PROVISION. WE ITA NO.1543/KOL/2016 A.Y. 2007-08 RAKESH AGARWAL VS. ITO WD-45(1) KOL. PAGE 3 THEREFORE KEEP IN MIND THE SAID FINE DISTINCTION TO REITERATE THAT THE ASSESSEE HAD INDEED FILED ALL THE DOCUMENTARY EVIDENCE PERTA INING TO ITS UNSECURE LOAN CREDITORS IN THE NATURE OF IT RETURN ACKNOWLEDGMENT S, BALANCE-SHEET, CONFIRMATION, PAN DETAILS ALONG WITH ADDRESS PROOFS AS PER PAGE 3 OF THE ASSESSMENT ORDER DATED 31.12.2009. HE HAD THEREFORE DISCHARGED HIS INITIAL ONUS OF PROVING IDENTITY, GENUINENESS AND CREDITWOR THINESS OF THE CREDITORS IN ISSUE. THE ASSESSING OFFICER FAILED TO EVOKE ANY RE SPONSE OF THE CREDITOR PARTIES IN SCRUTINY PROCEEDINGS THEREAFTER. WE CONC LUDE IN VIEW OF THIS FACTUAL BACKDROP THAT ASSESSEES ACT AND CONDUCT IN FAILING TO PROVE HIS CASE TO THE HILT DOES NOT ATTRACT THE IMPUGNED PENALTY PROCEEDI NGS AS PER HON'BLE APEX COURTS ABOVE STATED DECISION. WE THUS DIRECT THE A SSESSING OFFICER TO DELETE THE IMPUGNED PENALTY. 6. THIS ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT 24/08/2018 SD/- SD/- ( %) (' %) (DR. A.L. SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP, SR.P.S (- 24 / 08 /201 8 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-RAKESH AGARWAL, 214, RABINDRA SARANI, GR . FL. KOLKATA-001 2. /RESPONDENT-ITO WARD-45(1), 3, GOVT. PLACE (E), KOL KATA 3. 3 4 / CONCERNED CIT KOLKATA 4. 4- / CIT (A) KOLKATA 5. 7 ''3, 3, / DR, ITAT, KOLKATA 6. < / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO 3,