Abinash Chandra Khanna, Kolkata V. ITO, Wd-37(3), Kolkata, Kolkata

ITA 157/KOL/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99658 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2015
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 28-01-2014
• Court: TRIBUNAL
• Assessee Lawyers: ANURAG SHARMA
• Section: 143(3); 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH SMC KOLKATA [BEFORE HON BLE S HRI MAHAVIR SINGH, JM ] ITA NO .157/KOL/2014 ASSESSMENT YEAR : 2008 - 09 ( A PPELLANT ) (RESPONDENT) ABINASH CHANDRA KHANNA - VERSUS - I.T.O., WARD - 37 (3) , KOLKATA KOLKATA (PAN: AFSPK 9700 Q) FOR THE APPELLANT: SHRI ANURAG SHARMA , FCA FOR THE RESPONDENT: SHRI SANJAY MUKHERJEE , JCIT DATE OF HEARING : 22 .07.2015 . DATE OF PRONOUNCEMENT : 03.08.2015. ORDER THIS APPEAL OF ASSESSEE ARISES OUT OF O RDER OF LD CIT(A) - XXIV , KOLKATA IN APPEAL NO . 1100/CIT(A) - XXIV/ 37 (3) / 12 - 13 DATED 19.11. 2013 FOR A.YR . 2008 - 09. 2. THE ONLY ISSUE TO BE DECIDED IS AS TO WHETHER THE LD. CIT(A) IN UP HOLDING THE LEVY OF PENALTY OF R S.10,000/ - U/S 271(1)(B) OF THE INCOME T AX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE LD. AO ISSUED NOTICE TO ASSESSEE U /S 143(2) & 142(1) DATED 24.08.2009 SEEKING HIS PRESENCE ON 08.02.2010 TOGETHER WITH THE DETAILS CALLED FOR. T HE ASSESSEE THROUGH HIS AR HAD DULY RESPONDED ON 08.02.2010 WITH NECESSARY DETAILS. LATER , ANOTHER NOTICE U/S 142(1) DATED 23.08.2010 WAS ISSUED BY THE AO SEEKING HIS PRESENCE ON 30.08.2010. THE ASSESSEE S AR APPEARED ON 30.08.2010 AND SOUGHT FOR AN ADJOU RNMENT TO 03.09.2010 AND ON 03.09.2010 IT IS STATED BY THE ASSESSEE THAT DESPITE HIS APPEARANCE HE COULD NOT MEET THE AO AS THE AO WAS NOT IN HIS OFFICE. THEREAFTER DURING THE COURSE OF ASSESSMENT PROCEEDINGS , THE ASSESSEE HAD APPEARED BEFORE THE LD.AO AND FILED ALL THE DETAILS CALLED FOR BY THE LD.AO AND COMPLETED THE ASSESSMENT ACCORDINGLY. A SSESSMENT WAS ULTIMATELY FRAMED U/S 143(3) OF THE ACT. SIMULTANEOUSLY ITA NO. 157/KOL/2013 SHRI ABINASH CHANDRA KHANNA A.YR. 2008 - 09 2 PENALTY PROCEEDINGS U/S 271(1)(B) OF THE ACT WAS INITIATED AND ORDER U/S 271(1(B) OF THE ACT WAS PASSED BY THE AO ON 16 TH APRIL, 2012. 4. AGGRIEVED BY THIS ORDER, ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A), WHO UPHELD THE LEVY OF PENALTY MADE BY THE LD. AO. 5. AGGRIEVED BY THIS ORDER, ASSESEE PREFERRED AN APPEAL BEFORE THIS T RIBUNAL AND RAISED THE FOLLOWING GROUNDS : - 1. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE ORDER OF COMMISSIONER OF INCOME TAX (APPEAL) - XXIV FOR REJECTING THE APPEAL IS BAD IN LAW. 2. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE THE ORDER OF COMMISSIONER OF INCOME TAX (APPEAL) - XXIV HAS ERRED IN CONFIRMING THE ORDER OF THE INCOME TAX OFFICER FOR IMPOSING PENALTY U/S 271(1)(B) OF THE INCOME TAX ACT, 1961. 3. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE ORDE R OF COMMISSIONER OF INCOME TAX (APPEAL) - XXIV HAS ERRED FOR NOT CONSIDERING THE FACT THAT THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE APPEARED ON ALL THE SUBSEQUENT DATES OF HEARING FIXED BY ASSESSING OFFICER. 4. FOR THAT ON THE FACTS AND IN THE CIRCUMST ANCES OF THE CASE THE ORDER OF COMMISSIONER OF INCOME TAX (APPEAL) - XXIV HAS ERRED FOR NOT CONSIDERING THE FACT THAT SEVERAL PETITIONS AND SUBMISSIONS WERE MADE BY THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE BEFORE THE INCOME TAX OFFICER FOR NOT IMPOSING THE PENALTY U/S 271(1)(B) OF THE INCOME TAX ACT, 1961. 5. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE ORDER OF COMMISSIONER OF INCOME TAX (APPEAL) - XXIV HAS ERRED FOR NOT CONSIDERING THE REQUEST THAT PENALTY PROCEEDINGS U/S 271(1)(B) OF T HE INCOME TAX ACT 1961 SHOULD BE DROPPED AS THE ASSESSEE HAS ALWAYS COOPERATED WITH THE DEPARTMENT AND THERE WERE NO LOSS OF REVENUE TO THE DEPARTMENT. 6. THAT THE APPELLANT CRAVES LEAVE TO SUPPLEMENT, CANCEL OR OTHERWISE AMEND ANY OF THE GROUND HEREIN ABO VE BEFORE OR AT THE TIME OF THE HEARING OF THE APPEAL. 6. SHRI ANURAG SHARMA, FCA ARGUED ON BEHALF OF THE ASSESSEE AND SHRI SANJAY MUKHERJEE , JCIT ARGUED ON BEHALF OF THE REVENUE. THE LD. AR OF THE ASSESSEE ARGUED THAT ALL THE DETAILS CALLED FOR BY THE LD.AO WERE DULY FILED AND ULTIMATELY ASSESSMENT WAS FRAMED U/S 143(3) OF THE ACT MAKING SOME ADHOC DISALLOWANCES WHICH WERE ALSO DELETED BY THE LD. CIT(A) IN THE FIRST APPEAL. HE ALSO FURTHER ARGUED THAT THE LD.AO DID NOT MENTION EVEN THE DATES ON WHI CH THE STATUTORY NOTICES WERE NOT COMPLIED WITH BY THE ASSESSEE IN HIS PENALTY ORDER AND ACCORDINGLY PLEADED FOR DELETION OF THE PENALTY. ITA NO. 157/KOL/2013 SHRI ABINASH CHANDRA KHANNA A.YR. 2008 - 09 3 7. IN RESPONSE TO THIS, THE LD. DR VEHEMENTLY SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. 8. I HAVE HE ARD THE RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. IT IS SEEN THAT THE ASSESSEE HAD COMPLIED WITH THE DETAILS CALLED FOR BY THE LD.AO ON TWO OCCASIONS WHICH IS EVIDENT FROM THE PAPER BOOK FILED BY THE ASSESSEE AND ALSO ASSE SSMENT WAS FRAMED U/S 143(3) OF THE ACT. IT IS ALSO SEEN FROM THE RECORDS THAT THE AO DID NOT BOTHER TO MENTION EVEN THE DATES ON WHICH THE STATUTORY NOTICES U/S 142(1) AND 143(2) OF THE ACT WERE REQUIRED TO BE COMPLIED WITH , BY THE ASSESSEE IN HIS PENALTY ORDER PASSED U/S 271(1)(B) OF THE ACT. HIS ORDER IS COMPLETELY SILENT ON THIS ISSUE. HENCE I HAVE NO HESITATION IN DELETING THE PENALTY LEVIED U/S 271(1)(B) OF THE ACT. 9. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNC ED IN TH E COURT . SD/ - [MAHAVIR SINGH] JUDICIAL MEMBER DATE: 03.08.2015. R.G.(.P.S.) COPY OF THE ORDER FORWARDED TO : 1 . SHRI ABINASH CHANDRA KHANNA, 54A, ZAKARIA STREET, KOLKATA - 700073. 2 I.T.O., WARD - 37 (3), KOLKATA. 3 . THE CIT, 4. THE CIT(A) - XX IV , KOLKATA. 5 . DR, KOLKATA BENCHES, KOLKATA TRUE COPY , BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLK ATA BENCHES ITA NO. 157/KOL/2013 SHRI ABINASH CHANDRA KHANNA A.YR. 2008 - 09 4