Sangeeta Bajoria, Bankura V. I.T.O.,Ward-3(1), Bankura

ITA 1815/KOL/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 7239 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2015-2016
• Appeal Filed On: 01-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 271(1)(c); 274; 101

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA B BENCH, KOLKATA [BEFORE SHRI P.M. JAGTAP, HONBLE VICE PRESIDENT-KZ & SHRI ABY T. VARKEY, HONBLE JUDICIAL MEMBER] I.T.A. NO. 1814/KOL/2019 ASSESSMENT YEAR: 2015-16 HARI PRASAD BAJORIA.............................................APPELLANT NUTANGANK, BANKURA WEST BENGAL 722 101 [PAN: ADMPB 1160 F] VS. INCOME TAX OFFICER, WARD-3(1), BANKURA......................................................RESPONDENT I.T.A. NO. 1815/KOL/2019 ASSESSMENT YEAR: 2015-16 SANGEETA BAJORIA...................................................APPELLANT KEORA GULAB, STATION MORE, NUTANGANK, BANKURA WEST BENGAL 722 101 [PAN: ANBPB 1601 N] VS. INCOME TAX OFFICER, WARD-3(1), BANKURA......................................................RESPONDENT APPEARANCES BY: SHRI AMIT AGARWAL, ADVOCATE, APPEARED ON BEHALF OF THE ASSESSEE. SHRI SUPRIYO PAL, JCIT, SR. D/R, APPEARING ON BEHALF OF THE REVENUE DATE OF CONCLUDING THE HEARING : OCTOBER 25 TH , 2019 DATE OF PRONOUNCING THE ORDER : OCTOBER 25 TH , 2019 O R D E R PER ABY T. VARKEY, JM :- BOTH THESE APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE COMMON ORDER PASSED BY LD. CIT(A) - DURGAPUR, DATED 17/05/2019, CONFIRMING THE PENALTY IMPOSED BY THE AO U/S 271(1)(C) OF THE INCOME TAX ACT, 1961. 2. THOUGH THE ASSESSEES ARE DIFFERENT, AND THE IMPUGNED ORDERS ARE DIFFERENT, AS THE ISSUES ARISING IN BOTH THESE APPEALS ARE IDENTICAL, THEY ARE HEARD TOGETHER AND DISPOSED OFF BY WAY OF THIS COMMON ORDER. 3. WE HAVE HEARD THE ARGUMENTS OF THE RESPECTIVE PARTIES AND ALSO PERUSED THE RELEVANT MATERIALS AVAILABLE ON RECORD. 4. THE LD. COUNSEL FOR THE ASSESSEE HAS RAISED A COMMON PRELIMINARY OBJECTION CHALLENGING THE PENALTY IMPOSED U/S 271(1)(C) ON THE GROUND THAT THE NOTICE ISSUED INITIATING THE PENALTY PROCEEDINGS BEING DEFECTIVE, THE PENALTY IMPOSED IN PURSUANCE OF SUCH DEFECTIVE NO RECORD, A COPIES OF THE SAID NOTICE IRRELEVANT PORTION HAVING BEEN NOT STRUCK OFF BY THE A.O. IN THE SAID NOTICE EXACT CHARGE/S AGAINST THE ASSESSEE AS TO W HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME WAS NOT CLEAR. IN SUPPORT OF HIS CONTENTION, THE DECISION OF THE COORDINATE B VIDE ITS ORDER DATED 01.12.2017 ISSUE HAS BEEN DECIDED BY THE TRIBUNAL AFTER TAKING INTO CONSIDERATION, THE RELEVANT DECISION OF THE DIFFERENT HIGH COURTS VIDE PARAGRAPH NO. 14 A WHICH READ AS UNDER: FROM THE AFORESAID DISCUSSION IT CAN BE SEEN THAT THE LINE OF REASONING OF THE HONBLE BOMBAY HIGH COURT AND THE HONBLE PATNA HIGH COURT IS THAT ISSUANCE OF NOTICE IS AN ADMINISTRATIVE DEVICE FOR INFORMING THE ASSESSEE ABOUT THE PROPOSAL TO LEVY PENALTY IN ORDER TO ENABLE HIM TO EXPLAIN AS TO WHY IT SHOULD NOT BE DONE. MERE MISTAKE IN THE LANGUAGE USED OR MERE NON CANNOT BY ITSELF INVALIDATE THE NOTICE. THE TRIBUNAL BENCHES AT MUMBAI AND PATNA BEING SUBORDINATE TO THE HO BOUND TO FOLLOW THE AFORESAID VIEW. THE TRIBUNAL BENCHES AT BANGALORE HAVE TO FOLLOW THE DECISION OF THE HONBLE KARNATAKA HIGH COURT. AS FAR AS BENCHES OF TRIBUNAL IN OTHER JURISDICTIONS ARE CONCERNED, THER ONE IN FAVOUR OF THE ASSESSEE RENDERED BY THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON & GINNING (SUPRA) AND OTHER OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF SMT. KAUSHALYA. IT IS SETTLED LEGAL POSITI TWO VIEWS ARE AVAILABLE ON AN ISSUE, THE VIEW FAVOURABLE TO THE ASSESSEE HAS TO BE FOLLOWED. WE, THEREFORE, PREFER TO FOLLOW THE VIEW EXPRESSED BY THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON & GINNING (SUPRA). WE HAVE AL READY OBSERVED THAT THE SHOW CAUSE NOTICE ISSUED IN THE PRESENT CASE U/S 274 OF THE ACT DOES NOT SPECIFY THE CHARGE AGAINST THE ASSESSEE AS TO WHETHER IT IS FOR CONCEALING PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. THE SHOW CAUSE INAPPROPRIATE WORDS. IN THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT IMPOSITION OF PENALTY CANNOT BE SUSTAINED. THE PLEA OF THE LD. COUNSEL FOR THE ASSESSEE WHICH IS BASED ON THE DECISIONS REFERRED TO IN T ACCEPTED. WE, THEREFORE, HOLD THAT IMPOSITION OF PENALTY IN THE PRESENT CASE CANNOT BE SUSTAINED AND THE SAME IS DIRECTED TO BE CANCELLED. 4. IN OUR OPINION, THE DECISION RENDERED BY THE COORDINATE BENCH IN THE CASE JEETMAL CHORARIA VS ACIT (SUPRA) 2 ISSUED INITIATING THE PENALTY PROCEEDINGS BEING DEFECTIVE, THE PENALTY IMPOSED IN PURSUANCE OF SUCH DEFECTIVE NO TICE IS NOT SUSTAINABLE IN LAW. HE HAS PLACED ON OF THE SAID NOTICE S ISSUED BY THE A.O. AND POINTED OUT THAT THE IRRELEVANT PORTION HAVING BEEN NOT STRUCK OFF BY THE A.O. IN THE SAID NOTICE AGAINST THE ASSESSEE AS TO W HETHER HE CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME WAS NOT CLEAR. IN SUPPORT OF HIS CONTENTION, THE LEARNED COUNSEL FOR THE ASSESSEE HAS RELIED B ENCH IN THE CASE OF JEETM AL CHORARIA VS ACIT 01.12.2017 PASSED IN ITA NO. 956/KOL/2016 WHEREIN A SIMILAR DECIDED BY THE TRIBUNAL AFTER TAKING INTO CONSIDERATION, THE RELEVANT DECISION OF THE DIFFERENT HIGH COURTS VIDE PARAGRAPH NO. 14 A ND 15 OF ITS ORDER FROM THE AFORESAID DISCUSSION IT CAN BE SEEN THAT THE LINE OF REASONING OF THE HONBLE BOMBAY HIGH COURT AND THE HONBLE PATNA HIGH COURT IS THAT ISSUANCE OF NOTICE IS AN ADMINISTRATIVE DEVICE FOR INFORMING THE ASSESSEE ABOUT THE PROPOSAL TO IN ORDER TO ENABLE HIM TO EXPLAIN AS TO WHY IT SHOULD NOT BE DONE. MERE MISTAKE IN THE LANGUAGE USED OR MERE NON - STRIKING OF THE INACCURATE PORTION CANNOT BY ITSELF INVALIDATE THE NOTICE. THE TRIBUNAL BENCHES AT MUMBAI AND PATNA BEING SUBORDINATE TO THE HO NBLE BOMBAY HIGH COURT AND PATNA HIGH COURT ARE BOUND TO FOLLOW THE AFORESAID VIEW. THE TRIBUNAL BENCHES AT BANGALORE HAVE TO FOLLOW THE DECISION OF THE HONBLE KARNATAKA HIGH COURT. AS FAR AS BENCHES OF TRIBUNAL IN OTHER JURISDICTIONS ARE CONCERNED, THER E ARE TWO VIEWS ON THE ISSUE, ONE IN FAVOUR OF THE ASSESSEE RENDERED BY THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON & GINNING (SUPRA) AND OTHER OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF SMT. KAUSHALYA. IT IS SETTLED LEGAL POSITI ON THAT WHERE TWO VIEWS ARE AVAILABLE ON AN ISSUE, THE VIEW FAVOURABLE TO THE ASSESSEE HAS TO BE FOLLOWED. WE, THEREFORE, PREFER TO FOLLOW THE VIEW EXPRESSED BY THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON & GINNING (SUPRA). READY OBSERVED THAT THE SHOW CAUSE NOTICE ISSUED IN THE PRESENT CASE U/S 274 OF THE ACT DOES NOT SPECIFY THE CHARGE AGAINST THE ASSESSEE AS TO WHETHER IT IS FOR CONCEALING PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. THE SHOW CAUSE NOTICE U/S 274 OF THE ACT DOES NOT STRIKE OUT THE INAPPROPRIATE WORDS. IN THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT IMPOSITION OF PENALTY CANNOT BE SUSTAINED. THE PLEA OF THE LD. COUNSEL FOR THE ASSESSEE WHICH IS BASED ON THE DECISIONS REFERRED TO IN T HE EARLIER PART OF THIS ORDER HAS TO BE ACCEPTED. WE, THEREFORE, HOLD THAT IMPOSITION OF PENALTY IN THE PRESENT CASE CANNOT BE SUSTAINED AND THE SAME IS DIRECTED TO BE CANCELLED. IN OUR OPINION, THE DECISION RENDERED BY THE COORDINATE BENCH IN THE CASE JEETMAL CHORARIA VS ACIT (SUPRA) IS SQUARELY APPLICABLE IN THE PRESENT CASE AND I.T.A. NO. 1814/KOL/2019 ASSESSMENT YEAR: 2015-16 HARI PRASAD BAJORIA I.T.A. NO. 1815/KOL/2019 ASSESSMENT YEAR: 2015-16 SANGEETA BAJORIA ISSUED INITIATING THE PENALTY PROCEEDINGS BEING DEFECTIVE, THE PENALTY IMPOSED IN TICE IS NOT SUSTAINABLE IN LAW. HE HAS PLACED ON ISSUED BY THE A.O. AND POINTED OUT THAT THE IRRELEVANT PORTION HAVING BEEN NOT STRUCK OFF BY THE A.O. IN THE SAID NOTICE S, THE THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME WAS NOT CLEAR. IN RELIED UPON THE AL CHORARIA VS ACIT RENDERED WHEREIN A SIMILAR DECIDED BY THE TRIBUNAL AFTER TAKING INTO CONSIDERATION, THE RELEVANT ND 15 OF ITS ORDER FROM THE AFORESAID DISCUSSION IT CAN BE SEEN THAT THE LINE OF REASONING OF THE HONBLE BOMBAY HIGH COURT AND THE HONBLE PATNA HIGH COURT IS THAT ISSUANCE OF NOTICE IS AN ADMINISTRATIVE DEVICE FOR INFORMING THE ASSESSEE ABOUT THE PROPOSAL TO IN ORDER TO ENABLE HIM TO EXPLAIN AS TO WHY IT SHOULD NOT BE DONE. STRIKING OF THE INACCURATE PORTION CANNOT BY ITSELF INVALIDATE THE NOTICE. THE TRIBUNAL BENCHES AT MUMBAI AND PATNA NBLE BOMBAY HIGH COURT AND PATNA HIGH COURT ARE BOUND TO FOLLOW THE AFORESAID VIEW. THE TRIBUNAL BENCHES AT BANGALORE HAVE TO FOLLOW THE DECISION OF THE HONBLE KARNATAKA HIGH COURT. AS FAR AS BENCHES OF E ARE TWO VIEWS ON THE ISSUE, ONE IN FAVOUR OF THE ASSESSEE RENDERED BY THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON & GINNING (SUPRA) AND OTHER OF THE HONBLE BOMBAY ON THAT WHERE TWO VIEWS ARE AVAILABLE ON AN ISSUE, THE VIEW FAVOURABLE TO THE ASSESSEE HAS TO BE FOLLOWED. WE, THEREFORE, PREFER TO FOLLOW THE VIEW EXPRESSED BY THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON & GINNING (SUPRA). READY OBSERVED THAT THE SHOW CAUSE NOTICE ISSUED IN THE PRESENT CASE U/S 274 OF THE ACT DOES NOT SPECIFY THE CHARGE AGAINST THE ASSESSEE AS TO WHETHER IT IS FOR CONCEALING PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF NOTICE U/S 274 OF THE ACT DOES NOT STRIKE OUT THE INAPPROPRIATE WORDS. IN THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT IMPOSITION OF PENALTY CANNOT BE SUSTAINED. THE PLEA OF THE LD. COUNSEL FOR THE ASSESSEE WHICH IS HE EARLIER PART OF THIS ORDER HAS TO BE ACCEPTED. WE, THEREFORE, HOLD THAT IMPOSITION OF PENALTY IN THE PRESENT CASE CANNOT IN OUR OPINION, THE DECISION RENDERED BY THE COORDINATE BENCH IN THE CASE OF IS SQUARELY APPLICABLE IN THE PRESENT CASE AND EVEN THE L EARNED DR HAS NOT DISPUTED THIS RESPECTFULLY FOLLOWING THE SAID DECISION OF THE COORDINATE BENCH IMPUGNED PENALTY I MPOSED BY THE ACT AND CONFIRMED BY THE LD. CIT(A). 5. IN THE RESULT, BOTH THE APPEAL KOLKATA, THE SD/- [P.M. JAGTAP] VICE PRESIDENT DATED :25.10.2019 {SC SPS} C OPY OF THE ORDER FORWARDED TO: 1. HARI PRASAD BAJORIA NUTANGANK, BANKURA WEST BENGAL 722 101 2. INCOME TAX OFFICER, WARD- 3(1), BANKURA 3. SANGEETA BAJORIA KEORA GULAB, STATION MORE, NUTANGANK, BANKURA WEST BENGAL 722 101 4. CIT(A)- 5. CIT- , 6 . CIT(DR), KOLKATA BENCHES, KOLKATA. 3 EARNED DR HAS NOT DISPUTED THIS ASPECT OF THE MATTER . WE, THEREFORE, THE SAID DECISION OF THE COORDINATE BENCH MPOSED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) AND CONFIRMED BY THE LD. CIT(A). THE APPEAL S OF THE ASSESSEE ARE ALLOWED. KOLKATA, THE 25TH DAY OF OCTOBER, 2019. [ ABY T. VARKEY] JUDICIAL MEMBER OPY OF THE ORDER FORWARDED TO: 3(1), BANKURA . CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES I.T.A. NO. 1814/KOL/2019 ASSESSMENT YEAR: 2015-16 HARI PRASAD BAJORIA I.T.A. NO. 1815/KOL/2019 ASSESSMENT YEAR: 2015-16 SANGEETA BAJORIA . WE, THEREFORE, THE SAID DECISION OF THE COORDINATE BENCH QUASH THE UNDER SECTION 271(1)(C) OF THE ALLOWED. SD/- ABY T. VARKEY] JUDICIAL MEMBER TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES