Ajay Agarwal, Kolkata V. ACIT, CC-XXIII, Kolkata, Kolkata

ITA 179/KOL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1345 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2006-2007
• Appeal Filed On: 18-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KALYAN NATH
• Assessee Lawyers: SHIKHA AGA RWAL ACA

Judgement Text

1 ITA NO.179-180/KOL/2015 AJAY AGARWAL., AY 2006-07 & 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. NOS. 179 & 180/KOL/2015 ASSESSMENT YEARS: 2006-07 & 2007-08 AJAY AGARWAL (PAN: AESPA7574F) VS. ASSISTANT COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-XXIII, KOLKATA. APPELLANT RESPONDENT DATE OF HEARING 04.09.2017 DATE OF PRONOUNCEMENT 04.10.2017 FOR THE APPELLANT MISS SHIKHA AGARWAL, ACA FOR THE RESPONDENT SHRI KALYAN NATH, ADDL. CIT ORDER PER SHRI A.T.VARKEY, JM BOTH THESE APPEALS FILED BY THE ASSESSEE AGAINST TH E SEPARATE ORDERS OF LD. CIT(A)-21, KOLKATA DATED 15.12.2014 FOR AYS 2006-07 AND 2007-0 8 CONFIRMING THE PENALTY OF RS.3,06,794/- AND RS.16,218/- RESPECTIVELY U/S. 271 (1)(C) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). SINCE ISSU ES ARE IDENTICAL AND FACTS ARE COMMON, WE DISPOSE OF BOTH THESE APPEALS BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE AS SESSEE DREW OUR ATTENTION TO THE NOTICES U/S. 274 OF THE ACT R.W.S. 271 OF THE ACT DATED 30. 12.2010 AND SERVED ON THE ASSESSEE WHEREIN WE NOTE THAT THE AO HAS NOT STRUCK DOWN THE LIMB OF CHARGE/DEFAULT FOR WHICH THE PENALTY IS BEING INITIATED AGAINST THE ASSESSEE. W E FIND THAT THE NOTICES HAVE BEEN ISSUED FOR HAVING CONCEALED THE PARTICULARS OF INCOME OR FURNI SHED 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 REPORT ED 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 PARTIC ULARS OF INCOME OR HAS FURNISHED INACCURATE PARTICULARS OF INCOME. WE ALSO FIND THAT HONBLE KARNATAKA HIGH COURT IN THE 2 ITA NO.179-180/KOL/2015 AJAY AGARWAL., AY 2006-07 & 2007-08 CASE OF CIT VS. SSAS EMERALD MEADOWS, REPORTED IN (2016) 73 TAXMANN.COM 241 (KAR) ENDORSED THE SAME VIEW IN MANJUNATHA COTTON AND GIN NING 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 NOTICES ISSUED TO THE ASSESSEE DATED 30.12.2010 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, BOTH THE A PPEALS OF THE ASSESSEE ARE ALLOWED. 5. IN THE RESULT, BOTH THE APPEALS OF ASSESSEE ARE 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.179-180/KOL/2015 AJAY AGARWAL., AY 2006-07 & 2007-08 COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT SHRI AJAY AGARWAL, 303, CENTURY TOWER, 45, SHAKESPEARE SARANI, KOLKATA-17. 2 RESPONDENT ACIT, CENTRAL CIRCLE-XXIII, KOLKATA. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, SR. PVT. SECRETARY