PHOENIX HITECH PVT. LTD., Kolkata V. ACIT, CC-XXIII, KOLKATA, Kolkata

ITA 1612/KOL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1770 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 9 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-05-2017
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 05-08-2014
• Court: TRIBUNAL

Judgement Text

1 ITA NO.1612/KOL/2014 PHOENIX HITECH PVT. LTD., AY 2009-10 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] I.T.A. NO. 1612/KOL/2014 ASSESSMENT YEAR: 2009-10 PHOENIX HITECH PVT. LTD. (PAN:AADCP7251J) VS. ASSISTANT COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE-XXIII, KOLKATA. APPELLANT RESPONDENT DATE OF HEARING 09.05.2017 DATE OF PRONOUNCEMENT 24.05.2017 FOR THE APPELLANT SHRI ANIL KOCHAR, ADVOCATE FOR THE RESPONDENT SHRI NICHOLAS MURMU, JCIT, SR. D R ORDER PER SHRI A.T.VARKEY, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A), CENTRAL- III, KOLKATA DATED 30.06.2014 FOR AY 2009-10 CONFIR MING THE PENALTY OF RS.3,09,001/- U/S. 271(1)(C) OF THE INCOME-TAX ACT, 1961 (HEREINA FTER REFERRED TO AS THE ACT). 2. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE AS SESSEE DREW OUR ATTENTION TO THE NOTICE U/S. 274 OF THE ACT R.W.S. 271 OF THE ACT DA TED 29.12.2011 SERVED ON THE ASSESSEE AND CONTENDED THAT THE SAID NOTICE IS BAD IN LAW FO R THE REASON THAT THE AO DID NOT SPECIFY THE CHARGE AGAINST WHICH HE PROPOSES TO IN ITIATE THE PENALTY PROCEEDING AGAINST THE ASSESSEE. WE NOTE THAT THE AO HAS NOT STRUCK DO WN THE LIMB OF CHARGE/DEFAULT FOR WHICH THE ASSESSEE WAS BEING SERVED WITH THE PENALT Y NOTICE. WE FIND THAT THE NOTICE HAS BEEN ISSUED FOR HAVING CONCEALED THE PARTICULAR S OF INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. WE NOTE THAT IN A SIMI LAR 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 WHET HER THE ASSESSEE HAS CONCEALED THE 2 ITA NO.1612/KOL/2014 PHOENIX HITECH PVT. LTD., AY 2009-10 PARTICULARS OF INCOME OR HAS FURNISHED INACCURATE P ARTICULARS OF INCOME. WE ALSO FIND THAT HONBLE KARNATAKA HIGH COURT IN THE CASE OF CI T VS. SSAS EMERALD MEADOWS, REPORTED IN (2016) 73 TAXMANN.COM 241 (KAR) HAS HEL D 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 R EAD WITH SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT), TO BE B AD IN LAW AS IT DID NOT SPECIFY WHICH LIMB OF SECTION 271(1)(C) OF THE ACT, THE PENALTY P ROCEEDINGS HAD BEEN INITIATED I.E., WHETHER FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE TRIBUNAL, WHILE ALLOWIN G THE APPEAL OF THE ASSESSEE, HAS RELIED ON THE DECISION OF THE DIVISION BENCH OF THI S COURT RENDERED IN THE CASE OF CIT VS. MANJUNATHA COTTON & GINNING FACTORY (2013) 359 ITR 565/218 TAXMAN 423/35 TAXMANN.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 QUESTI ON OF LAW ARISES IN THIS APPEAL FOR DETERMINATION BY THIS COURT. THE APPEAL IS ACCORDI NGLY DISMISSED. WE ALSO FIND THAT THIS ISSUE HAS TRAVELLED TO HONB LE SUPREME COURT THROUGH SLP BY THE DEPARTMENT WHICH HAS BEEN REPORTED IN (2016) 73 TAX MANN.COM 248 (SC), WHEREIN ALSO THE HONBLE SUPREME COURT UPHELD THE ORDER OF HONB LE KARNATAKA HIGH COURT AND DISMISSED THE SLP FILED BY THE REVENUE. 3. WE NOTE THAT SINCE THE PENALTY NOTICE ISSUED TO THE ASSESSEE DATED 29.12.2011 DID NOT SPELL OUT AS TO WHICH DEFAULT THE ASSESSEE HAS COMMITTED FOR WHICH PENALTY U/S. 271(1)(C) OF THE ACT HAS BEEN INITIATED, THEREFORE, FOLLOWING THE HONBLE KARNATAKA HIGH COURTS ORDER IN MANJUNATHA COTTON & GINNING F ACTORY (SUPRA) AND SSAS EMERALD MEADOWS (SUPRA), WE CANCEL THE PENALTY CONF IRMED BY LD. CIT(A) AND, THEREFORE, THE APPEAL OF ASSESSEE IS ALLOWED. 4. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 24.05.2017 . SD/- SD/- (DR. A. L. SAINI) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 24TH MAY, 2017 JD.(SR.P.S.) 3 ITA NO.1612/KOL/2014 PHOENIX HITECH PVT. LTD., AY 2009-10 COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT PHOENIX HITECH PVT. LTD., C/O S. L. KOC HAR, ADVOCATE, 86, CANNING STREET, KOLKATA-1. 2 RESPONDENT ACIT, CENTRAL CIRCLE-XXIII, KOLKATA. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .