Shri Samir Paul, Paschim Medinipur V. ITO, Ward - 1(3), Midnapore, Midnapore

ITA 170/KOL/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54475 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 27-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K PRAMANIK
• Assessee Lawyers: S M SURANA
• Keywords: Invalid notice
• Section: 133A; 131; 148

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A , KOLKATA [ () . .. . . .. . , ! '! '! '! '! , ] ]] ] [BEFORE HONBLE SRI S.V.MEHROTRA, AM & HONBLE S RI MAHAVIR SINGH, JM ] !$ !$ !$ !$ /ITA NO.170/KOL/2011 '%& '(/ ASSESSMENT YEAR : 2006-07 SHRI SAMIR PAUL, MIDNAPORE -VERSUS- I.T.O., WARD-1(3), (PAN : AEMPP 6527 K ) MIDNAPORE (*+ / APPELLANT ) ( ,-*+ /RESPONDENT) *+ . / / FOR THE APPELLANT: SHRI S.M.SURANA ,-*+ . / / FOR THE RESPONDENT: SHRI A.K.PRAMANIK 0 / ORDER ( (( ( '! '! '! '!) )) ), , , , ' PER SHRI MAHAVIR SINGH, JM THIS APPEAL OF ASSESSEE IS DIRECTED AGAINST ORDER O F CIT(A)-XXXVI, KOLKATA IN APPEAL NO.175/CIT(A)-XXXVI/KOL/37/WARD-1(3),MID./08 -09 DATED 01.12.2010. THE RETURN FILED BY ASSESSEE FOR RELEVANT ASSESSMENT YE AR 2006-07 WAS PROCESSED U/S 143(1) BY AO ON 12.02.2007. PENALTY UNDER DISPUTE W AS LEVIED U/S 271A OF THE ACT BY I.T.O., WARD-1(3), MIDNAPORE VIDE HIS ORDER DATED 2 9.09.2008. 2. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AGAINST ORDER OF CIT(A) CONFIRMING THE ORDER OF AO LEVYING PENALTY U/S 271A OF THE ACT. FO R THIS THE ASSESSEE HAS RAISED THE FOLLOWING EFFECTIVE GROUNDS:- 2. FOR THAT THE LD.CIT(A) ERRED IN CONFIRMING THE PENALTY UNDER SEC. 271A ON THE GROUND THAT NO BOOKS OF ACCOUNTS WERE MAINTAINED WHEN BOOK S OF ACCOUNTS WERE MAINTAINED AS WERE APPARENT FROM THE AUDITED ACCOUNTS FILED ALONG WITH THE RETURN AND SIMPLY BECAUSE THE BOOKS WERE NOT PRODUCED AGAINST AN INVALID NOTICE IT CANN OT BE PRESUMED THAT THE BOOKS WERE PRODUCED AND THEREFORE THE SAME WERE MAINTAINED. 3. FOR THAT THE LD. CIT(A) SHOULD HAVE CONSIDERED THE FACT THAT NO PRESUMPTION CAN BE DRAWN THAT BOOKS WERE NOT MAINTAINED WHEN SUCH BOOKS WERE OBVIOUSLY NOT PRODUCED AGAINST ISSUE OF AN INVALID NOTICE. 4. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE NO PENALTY U/S 271A WAS IMPOSSIBLE. 3. WE HAVE HEARD RIVAL CONTENTIONS AND GONE TH ROUGH FACTS AND CIRCUMSTANCES OF THE CASE. FACTS ARE THAT ASSESSEE FILED ITS RETURN OF INCOME FOR ASSESSMENT YEAR 2006-07 2 ON 31.10.2006, WHICH WAS DULY PROCESSED U/S 143(1) OF THE ACT BY ASSESSING OFFICER ON 12.02.2007. SUBSEQUENTLY IN THE BUSINESS PREMISES O F THE ASSESSEE A SURVEY WAS CONDUCTED U/S 133A OF THE ACT ON 05.01.2008 AND DUR ING THE COURSE OF SURVEY THE ASSESSING OFFICER REQUIRED ASSESSEE TO PRODUCE BOOK S OF ACCOUNT FOR ASSESSMENT YEAR 2007-08. THE ASSESSING OFFICER AFTER COMPLETION OF SURVEY REQUIRED ASSESSEE TO PRODUCE BOOKS OF ACCOUNT FOR ASSESSMENT YEAR 2006-0 7, BY ISSUING NOTICE U/S 131 OF THE ACT. THE ASSESSEE COULD NOT PRODUCE BOOKS OF AC COUNT AND AO LEVIED PENALTY U/S 271A OF THE ACT. AGGRIEVED, ASSESSEE PREFERRED APPE AL BEFORE THE CIT(A), WHO ALSO CONFIRMED ACTION OF THE ASSESSING OFFICER BY STATIN G THAT ASSESSEE HAS VIOLATED SECTION 44AA OF THE ACT AND PENALTY LEVIED BY THE ASSESSING OFFICER U/S 271A OF THE ACT IS AS PER PROVISION OF THE ACT. WE FIND FROM THE RECORDS THAT NO DOUBT ASSESSEE DID NOT COMPLY WITH NOTICE ISSUED U/S 131 OF THE ACT AND TH E ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS U/S 271A, EVEN THOUGH NO PROCEEDINGS FO R RELEVANT ASSESSMENT YEAR 2006- 07 WAS PENDING BEFORE HIM. THE ASSESSING OFFICER CO ULD HAVE EXERCISED OTHER OPTIONS BUT SHOULD NOT HAVE LEVIED PENALTY U/S 271A OF THE ACT, REASON BEING THERE IS NO PROCEEDING PENDING BEFORE HIM. ONCE THERE IS NO PRO CEEDING PENDING, NO ACTION EITHER OF LEVYING OF PENALTY OR FRAMING OF ASSESSMENT CAN BE TAKEN AGAINST ASSESSEE. FIRST OF ALL, IT IS FIRST REQUIREMENT OF INITIATION OF ANY A CTION IS THAT PROCEEDINGS SHOULD HAVE BEEN PENDING I.E. EITHER VALID RETURN IS PENDING FO R ASSESSMENT YEAR U/S 143(1),143(3) OR ACTION U/S 148 OF THE ACT IS INITIATED. IN THE A BSENCE OF ANY ACTION PENDING, PENALTY CANNOT BE LEVIED. ACCORDINGLY WE DELETE THE PENALTY AND ORDERS OF THE LOWER AUTHORITIES ARE REVERSED. 5. IN THE RESULT APPEAL OF ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE COURT ON 05.08.2011 SD/- SD/- [ .., ] [ '!, ' ] [ S.V.MEHROTRA ] [ MAHAVIR SI NGH ] ACCOUNTANT MEMBER JUDICIAL MEMBER ( (( (1 1 1 1) )) ) DATE: 05.08.2011 R.G.(.P.S.) 3 0 . ,''2 32'4- COPY OF THE ORDER FORWARDED TO: 1 . SHRI SAMIR PAUL, PROP. OF M/S. PAUL HARDWARES, VILL AND P.O.GOALTORE, P.S.GOALTORE, PASCHIM MEDINIPORE, W.B. 2 THE I.T.O., WARD-1(3), MIDNAPORE, WEST BENGAL 3 . THE CIT, 4. THE CIT(A)-XXXVI, KOLKATA 5 . DR, KOLKATA BENCHES, KOLKATA -2 ,'/ TRUE COPY, 0%:/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES