I.T.O., Ward-8(4), Kolkata, Kolkata V. M/S. Swastik Refinery Pvt. Ltd., Kolkata

ITA 1622/KOL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1763 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 9 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-05-2017
• Appeal Filed By: Department
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 07-08-2014
• Court: TRIBUNAL
• Assessee Lawyers: A K TIBREWAL; AMIT AGA
• Section: 2

Judgement Text

1 ITA NO.1622/KOL/2014 SWASTIK REFINERY PVT. LTD.. AY 2010-11 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. 1622/KOL/2014 ASSESSMENT YEAR: 2010-11 INCOME-TAX OFFICER, WD-8(4), KOLKATA VS. M/S. SWAST IK REFINERY PVT. LTD. (PAN: AADCS5999Q) APPELLANT RESPONDENT DATE OF HEARING 09.05.2017 DATE OF PRONOUNCEMENT 24.05.2017 FOR THE APPELLANT SHRI NICHOLAS MURMU, JCIT, SR. DR FOR THE RESPONDENT SHRI A. K. TIBREWAL, FCA & SHRI AMIT AGARWAL, ADVOCATE ORDER PER SHRI A.T.VARKEY, JM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A)-III, KOLKATA DATED 13.05.2014 FOR AY 2010-11 AGAINST THE DELETIO N OF PENALTY LEVIED BY AO U/S. 271(1)(C) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2. AT THE OUTSET ITSELF, THE LD. AR WHILE SUPPORTIN G THE ORDER OF THE LD. CIT(A) SUBMITTED THAT THE PENALTY ORDER OF AO IS BAD IN LA W FOR ANOTHER REASON OTHER THAN THE REASONS GIVEN BY THE LD. CIT(A) TO DELETE THE PENAL TY IMPOSED BY THE AO. ACCORDING TO HIM, THE NOTICE ISSUED U/S. 274 READ WITH SECTION 2 71 OF THE ACT IS BAD IN LAW AND DREW OUR ATTENTION TO NOTICE DATED 11.01.2013 TO POINT OUT T HAT THE NOTICE DID NOT SPECIFY FOR WHICH CHARGE THE PENALTY IS BEING INITIATED. WE FIND THAT THE NOTICE U/S. 274 OF THE ACT R.W.S. 271 OF THE ACT DATED 11.01.2013 SERVED ON THE ASSESSEE WHE REIN WE NOTE THAT THE AO HAS NOT STRUCK DOWN THE LIMB OF CHARGE/DEFAULT FOR WHICH THE ASSES SEE IS BEING SERVED WITH THE PENALTY NOTICE. WE FIND THAT THE NOTICE HAS BEEN ISSUED FO R HAVING CONCEALED THE PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. WE NOTE THAT IN A SIMILAR CASE THE HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF CIT VS MANJUNATHA COTTON AND GINNING FACTORY REPORTED IN (2013) 359 ITR 565 (KAR) HAS CANCELLED THE PENALTY TAKING NOTE OF THE 2 ITA NO.1622/KOL/2014 SWASTIK REFINERY PVT. LTD.. AY 2010-11 FACT THAT THE PENALTY NOTICE DID NOT SPELL OUT CLEA RLY AS TO WHETHER THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME OR HAS FURNISHED INACCURA TE PARTICULARS 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 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 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 HONBLE K ARNATAKA HIGH COURT AND DISMISSED THE SLP FILED BY THE REVENUE. 3. WE NOTE THAT SINCE THE PENALTY NOTICE ISSUED TO THE ASSESSEE DATED 11.01.2013 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, FOLLOWING TH E HONBLE KARNATAKA HIGH COURTS ORDER IN MANJUNATHA COTTON & GINNING FACTORY (SUPRA) AND SS AS EMERALD MEADOWS (SUPRA), WE CONFIRM THE ORDER OF LD. CIT(A) IN ALLOWING THE APP EAL OF THE ASSESSEE. THEREFORE, APPEAL OF THE REVENUE IS DISMISSED. 4. IN THE RESULT, APPEAL OF REVENUE IS DISMISSED. 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.1622/KOL/2014 SWASTIK REFINERY PVT. LTD.. AY 2010-11 COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT ITO, WARD-8(4), KOLKATA. 2 RESPONDENT M/S. SWASTIK REFINERY PVT. LTD., 9C, L ORD SINHA ROAD, KOLKATA-700 016. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, K OLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .