Provash Sardar, Kolkata V. DCIT, CC-XIII, Kolkata, Kolkata

ITA 2000/KOL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1654 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 9 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 27-06-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 28-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P B PRAMANIK CIT LD
• Assessee Lawyers: NIRAV SHETH ACA LD

Judgement Text

1 ITA NO. 2000/KOL/2014 PROVASH SARDAR IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA BEFORE: SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICI AL MEMBER I.T.A NO. 2000/KOL/2014 ASSESSMENT YEAR: 2009-10 PROVASH SARDAR VS. DEPUTY COMMISSIONER OF PAN: AKWPS 9665B INCOME-TAX, CC-XIII,KOLKATA [ APPELLANT] [ RESPONDENT ] FOR THE APPELLANT : SHRI NIRAV SHETH, ACA, LD.AR FOR THE RESPONDENT : SHRI P.B. PRAMANIK, ADDL.CIT, LD. SR.DR DATE OF HEARING : 07-08-2017 DATE OF PRONOUNCEMENT : 25-08-2017 ORDER SHRI S.S.VISWANETHRA RAVI, JM: THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER DAT ED 21-08- 2014 OF CIT(A), CENTRAL-II, KOLKATA FOR THE ASSESSM ENT YEAR 2009-08, WHEREIN HE CONFIRMED THE PENALTY OF RS. 10,73,603/- IMPOSED BY THE AO U/S. 271(1)( C) OF THE ACT. 2. THE LD.AR OF THE ASSESSEE SUBMITS THAT THE STATU TORY NOTICE DT. 17-10-2011 ISSUED BY THE AO [ DCIT-XIII, CENTRAL CI RCLE-XIII] [ COPY OF THE SAME IS AVAILABLE ON RECORD] U/S. 274 R.W.S 271(1) ( C) OF THE ACT IS DEFECTIVE. HE FURTHER ARGUED THAT THE ISSUE IN HAND AS RAISED BY THE ASSESSEE IS SQUARELY COVERED IN FAVOUR OF ASSE SSEE BY THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F SSAS EMERALD MEADOWS. IN SUPPORT OF THIS CONTENTION, HE PLACED R ELIANCE ON THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS SSAS EMERALD MEADOWS SUPRA IN ITA NO. 380 OF 2015 DATED 23.11.2015 WHICH WAS LATER APPROVED BY THE HONBLE SUPREME COURT BY DISMISSAL OF SPECIAL LEAVE PETITION (SLP) FILED BY THE REVENUE IN CC NO. 11485/2016 DATED 5.8.2016. IN RESPONSE TO T HIS, THE LD DR 2 ITA NO. 2000/KOL/2014 PROVASH SARDAR VEHEMENTLY RELIED ON THE ORDER OF THE LD AO. HE DID NOT OBJECT TO SUCH PROPOSITION OF THE LD.AR OF THE ASSESSEE. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS. WE FIND THAT THE PENALTY NOTICE DT. 17-10-2011 ISSUED U/S 274 R.W.S 271(1)( C ) OF THE ACT DOES NOT SPECIFY THE CHARGE OF OFFENCE COMMITTED BY THE ASSESSEE VIZ WHETHER HAD CONCEALED THE PARTICULARS OF INCOME OR HAD FURNISHED INACCURATE PARTICULARS OF INCOME. HENCE THE SAID N OTICE IS TO BE HELD AS DEFECTIVE. THIS ISSUE HAS BEEN ADDRESSED BY THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS SSAS EMERALD MEAD OWS IN ITA NO. 380 OF 2015 DATED 23.11.2015 WHICH IN TURN PLACED RELIANCE ON ANOTHER JUDGMENT OF THE SAME COURT IN THE CASE OF CIT VS MANJUNATHA COTTON AND GINNING FACTORY REPORTED IN 359 ITR 565 (KAR). IN THE SAID DECISION, THEIR LORDSHIPS OF HONBLE KARNATAKA HIGH COURT HELD THAT :- 3. THE TRIBUNAL HAS ALLOWED THE APPEAL FILED BY THE 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 BEEN 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 ASSE SSEE, HAS RELIED ON THE DECISION OF THE DIVISION BENCH OF THIS COURT RENDERED IN THE CASE O F COMMISSIONER OF INCOME TAX VS MANJUNATHA COTTON AND GINNING FACTORY REPORTED IN ( 2013) 359 ITR 565. 4. IN OUR VIEW, SINCE THE MATTER IS COVERED BY JUDG EMENT 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. 4. WE FIND THAT THE REVENUE HAD PREFERRED A SLP BEF ORE THE HONBLE SUPREME COURT AGAINST THIS JUDGMENT WHICH WAS DISMI SSED IN CC NO. 11485/2016 DATED 5.8.2016 BY OBSERVING AS UNDER:- UPON HEARING THE COUNSEL, THE COURT MADE THE FOLLOW ING ORDER DELAY CONDONED. WE DO NOT FIND ANY MERIT IN THIS PETITION. THE SPE CIAL LEAVE PETITION IS , ACCORDINGLY DISMISSED. PENDING APPLICATION, IF ANY, STANDS DISPOSED OF. 5. RESPECTFULLY FOLLOWING THE AFORESAID JUDICIAL P RECEDENTS, WE CANCEL THE PENALTY LEVIED OF RS. 10,73,603/- U/SEC. 271(1 ) ( C) OF THE ACT AND CONFIRMED BY THE CIT-A. ACCORDINGLY THE GROUND S RAISED BY THE ASSESSEE ARE ALLOWED. 3 ITA NO. 2000/KOL/2014 PROVASH SARDAR 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. . ORDER PRONOUNCED IN THE OPEN COURT ON 25-08-2017 SD/- SD/- J. SUDHAKAR REDDY S.S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 25-08-2017 PP(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT SHRI PROVASH SARDAR C/O CHHAPARIA & ASS OCIATES, CHARTERED ACCOUNTANTS, 8 CAMAC STR, SHANTINIKETAN B UILDING, 5 TH FLOOR, ROOM NO. 2, KOLKATA-17. 2 RESPONDENT THE DCIT, CC-XIII,KOLKATA/CIT(A) CENTR AL-II, KOLKATA AAYKAR BHAVAN PURVA, 8 TH FLOOR, 110 SHANTI PALLI, EM BY PASS, KOLKATA- 107. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, SR.PS/H.O.O ITAT KOLKATA