Shri Shambhu Nath Das, Purba Medinipur V. ACIT, Circle-Haldia, Haldia

ITA 159/KOL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1350 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 06-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KALYAN NATH
• Assessee Lawyers: MIHIR BANDYOPADHYAY
• Section: 2

Judgement Text

1 ITA NO.159/KOL/2015 SHRI SHAMBHU NATH DAS., AY 2007-08 , D , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: KOL KATA () BEFORE .., /AND . ' # $% % , ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] I.T.A. NO. 159/KOL/2015 ASSESSMENT YEAR: 2007-08 SHRI SHAMBHU NATH DAS (PAN: ACRPD9122B) VS. ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE, HALDIA APPELLANT RESPONDENT DATE OF HEARING 04.09.2017 DATE OF PRONOUNCEMENT 04.10.2017 FOR THE APPELLANT SHRI MIHIR BANDYOPADHYAY, ADVOCAT E FOR THE RESPONDENT SHRI KALYAN NATH, ADDL. CIT ORDER PER SHRI A.T.VARKEY, JM THE APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORD ER OF LD. CIT(A)-7, KOLKATA DATED 30.12.2014 FOR AY 2007-08. 2. AT THE OUTSET ITSELF, WE FIND THAT THE LD. CIT(A ) DISMISSED THE ASSESSEES APPEAL AS NOT MAINTAINABLE BY OBSERVING THAT THE ASSESSEE PRE SENTED THE APPEAL 371 DAYS BEYOND THE DATE OF LIMITATION SPECIFIED IN SUB-SECTION 2 OF SE CTION 249 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT), WITHOUT ANY SUFFICIENT CAUSE, THEREFORE, THE DELAY IN FILING THE APPEAL WAS NOT CONDONED. HOWEVER, AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE NOTICES U/S. 274 OF THE ACT R.W.S. 271 OF THE ACT DATED 29.12.2010 AND SERVED ON THE ASSESSEE WHEREIN WE NO TE THAT THE AO HAS NOT STRUCK DOWN THE LIMB OF CHARGE/DEFAULT FOR WHICH THE PENALTY IS BEI NG INITIATED AGAINST THE ASSESSEE. WE FIND THAT THE NOTICE HAS BEEN ISSUED FOR HAVING CONCEALE D THE PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. WE NOTE THA T IN A SIMILAR CASE THE HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF CIT VS MANJUNATHA COTTON AND GINNING FACTORY REPOR TED IN (2013) 359 ITR 565 (KAR) HAS CANCELLED THE PENALTY TAKING NOTE OF THE FACT THAT THE PENALTY NOTICE DID NOT SPELL OUT CLEARLY AS TO WHETHER THE ASSESSEE HAS CONCEALED THE PARTICULARS OF 2 ITA NO.159/KOL/2015 SHRI SHAMBHU NATH DAS., AY 2007-08 INCOME OR HAS FURNISHED INACCURATE PARTICULARS OF I NCOME. WE ALSO FIND THAT HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. SSAS E MERALD MEADOWS, REPORTED IN (2016) 73 TAXMANN.COM 241 (KAR) ENDORSED THE SAME VIEW IN MANJUNATHA COTTON AND GINNING FACTORY (SUPRA) AND HELD AS UNDER: 3. THE TRIBUNAL HAS ALLOWED THE APPEAL FILED BY T HE ASSESSEE HOLDING THE NOTICE ISSUED BY THE ASSESSING OFFICER UNDER SECTION 274 READ WITH S ECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT), TO BE BAD IN LAW AS IT DID NOT SPECIFY WHICH LIMB OF SECTION 271(1)(C) OF THE ACT, THE PENALTY PROCEEDINGS HAD B EEN INITIATED I.E., WHETHER FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE TRIBUNAL, WHILE ALLOWING THE APPEAL OF THE ASSESSEE , HAS RELIED ON THE DECISION OF THE DIVISION BENCH OF THIS COURT RENDERED IN THE CASE O F CIT VS. MANJUNATHA COTTON & GINNING FACTORY (2013) 359 ITR 565/218 TAXMAN 423/35 TAXMAN N.COM 250(KAR). 4. IN OUR VIEW, SINCE THE MATTER IS COVERED BY JUD GMENT OF THE DIVISION BENCH OF THIS COURT, WE ARE OF THE OPINION, NO SUBSTANTIAL QUESTION OF L AW ARISES IN THIS APPEAL FOR DETERMINATION BY THIS COURT. THE APPEAL IS ACCORDINGLY DISMISSED . WE ALSO FIND THAT THE AFORESAID ORDER OF THE HONBL E HIGH COURT WAS CHALLENGED BY THE DEPARTMENT BEFORE THE HONBLE SUPREME COURT BY PREF ERRING AN SLP WHICH HAS BEEN DISMISSED WHICH FACT HAS BEEN REPORTED IN CIT VS. S SAS EMERALD MEADOWS (2016) 73 TAXMANN.COM 248 (SC). 4. WE NOTE THAT SINCE THE PENALTY NOTICE ISSUED TO THE ASSESSEE DATED 29.12.2010 DID NOT SPELL OUT AS TO WHICH DEFAULT THE ASSESSEE HAS COMM ITTED FOR WHICH PENALTY U/S. 271(1)(C) OF THE ACT HAS BEEN INITIATED, THEREFORE, RESPECTFULLY FOLLOWING THE HONBLE KARNATAKA HIGH COURTS ORDER IN MANJUNATHA COTTON & GINNING FACTOR Y (SUPRA) AND SSAS EMERALD MEADOWS (SUPRA), WE CANCEL THE PENALTY IMPOSED BY T HE AO WHICH HAS BEEN ERRONEOUSLY CONFIRMED BY THE LD. CIT(A). THEREFORE, THE APPEAL OF THE ASSESSEE IS ALLOWED. 5. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED . ORDER IS PRONOUNCED IN THE OPEN COURT ON 04.10.2017 SD/- SD/- (DR. A. L. SAINI) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 4 TH OCTOBER, 2017 JD.(SR.P.S.) 3 ITA NO.159/KOL/2015 SHRI SHAMBHU NATH DAS., AY 2007-08 COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT SHRI SHAMBHU NATH DAS, AT. RAMPUR, P.O . CHAITANYAPUR, P.S. SUTAHATA, S. D. HALDIA, DIST. PURBA MEDINIPUR, W.B. 721645 2 RESPONDENT ACIT, CIRCLE, HALDIA 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, SR. PVT. SECRETARY