Arun Kumar Bose , Asansol V. ITO, Ward - 1(2), , Asansol

ITA 2044/KOL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5177 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 28-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUPRIYO PAL
• Keywords: Question of law
• Section: 271(1)(c); 250; 274

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA C BENCH, KOLKATA (BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER & SRI S.S. GODARA, JUDICIAL MEMBER) ITA NO. 2044/KOL/2018 ASSESSMENT YEAR: 2008-09 ARUN KUMAR BOSE..............................................APPELLANT PROPRIETOR OF TECHNO POWER G.T. ROAD (WEST) GOPALPUR P.O. ASANSOL DIST. PASCHIM BARDHAMAN (W.B.) PIN - 713304 [PAN : ADIPB 7015 M] VS. INCOME TAX OFFICER, WARD-1(2), ASANSOL............................................................RESPONDENT APPEARANCES BY: NONE, APPEARED ON BEHALF OF THE ASSESSEE. SHRI SUPRIYO PAL, JCIT SR. D/R, APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : JANUARY 23 RD , 2020 DATE OF PRONOUNCING THE ORDER : FEBRUARY 19 TH , 2020 ORDER PER J. SUDHAKAR REDDY, AM :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ASANSOL, (HEREINAFTER THE LD.CIT(A)), PASSED U/S. 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 16/07/2018, FOR THE ASSESSMENT YEAR 2008-09, WHEREIN HE HAS CONFIRMED THE PENALTY LEVIED U/S 271(1)(C) OF THE ACT. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE. THERE IS NO PETITION FOR ADJOURNMENT EITHER. UNDER THESE CIRCUMSTANCES, WE DISPOSE OFF THE CASE EX-PARTE ON MERITS QUA THE ASSESSEE AFTER HEARING THE LD. DEPARTMENTAL REPRESENTATIVE. 3. HEARD THE LD. D/R. THE ASSESSEE HAS CHALLENGED THE PENALTY IMPOSED U/S 271(1)(C) OF THE ACT, BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(A). WE FIND THAT THE NOTICE ISSUED FOR INITIATING THE PENALTY PROCEEDINGS IS DEFECTIVE. THE PENALTY IMPOSED IN PURSUANCE OF SUCH DEFECTIVE NOTICE IS NOT SUSTAINABLE IN LAW. A COPY OF THE SAID NOTICE ISSUED BY THE A.O. ISSUED U/S 274 R.W.S. 271 OF THE ACT, DT. 23/12/2010, IS PLACED ON RECORD AND IS EXTRACTED FOR READY REFERENCE:- 2 ITA NO. 2044/KOL/2018 ASSESSMENT YEAR: 2008-09 ARUN KUMAR BOSE 3.1. T HE IRRELEVANT PORTION HAVE EXACT CHARGE/S AGAINST THE ASSESSEE AS TO WHETHER HE CONCE INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME WHETHER THE NOTICE WAS ISSUED FOR LEVY OF PENALTY 3 HE IRRELEVANT PORTION HAVE NOT BEEN STRUCK OFF BY THE A.O. IN AGAINST THE ASSESSEE AS TO WHETHER HE CONCE ALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME IS NOT CLEAR. WAS ISSUED FOR LEVY OF PENALTY FOR FAILURE TO COMPLY WITH A NOTICE U/S ITA NO. 2044/KOL/2018 ASSESSMENT YEAR: 2008-09 ARUN KUMAR BOSE STRUCK OFF BY THE A.O. IN THE NOTICE. THE THE PARTICULARS OF HIS NOT CLEAR. IT IS NOT CLEAR FOR FAILURE TO COMPLY WITH A NOTICE U/S 142(1)/143 (2) OF THE INCOME TAX ACT, 1961. W FURNISHING INACCURATE PARTICULAR OF INCOME THE INCOME. 3.2. THE HONBLE JURISDICTIONAL HIGH COURT I KOLEY IN ITAT NO. 306 OF 2017, G.A. NO. 2968 OF 2017 FOLLOWS:- 10. THE LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE DECISION OF THE HON'BLE KARNATAKA HIGH COURT IN DATED 23.11.2015 WHEREIN THE HON'BLE KARNATAKA HIGH COURT FOLLOWING ITS OWN DECISION IN THE CASE OF CIT VS MANJUNATHA COTTON AND GINNING THAT IMPOSING OF PENALTY U/S. 271(1)(C) OF THE ACT IS BAD IN LAW AND INVALID FOR THE REASON THAT THE SHOW CAUSE NOTICE U/S 274 OF ASSESSEE AS TO WHETHER IT IS FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE LD. COUNSEL FURTHER BROUGHT TO OUR NOTICE THAT AS AGAINST THE DECISION OF THE HON'B IN SLP IN CC NO.11485 OF 2016 AND THE HON'BLE SUPREME COURT BY ITS ORDER DATED 05.08.2016 DISMISSED THE SLP PREFERRED BY THE DEPARTMENT. THE LD. COUNSEL ALSO BROUGHT TO OUR NOTICE THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS SHRI SAMSON PERINCHERY IN ITA NO.1154 OF 2014 DATED 05.01.2017 WHEREIN THE HON'BLE BOMBAY HIGH COURT FOLLOWING THE DECISION OF THE THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF OF COTTON AND GINNING FACTORY (SUPRA) CAME TO THE CONCLUSION THAT IMPOSITION OF PENALTY ON DEFECTIVE SHOW CAUSE NOTICE WITHOUT SPECIFYING THE CHARGE AGAINST THE ASSESSEE CANNOT BE SUSTAINED. OUR ATTENTION WAS ALSO D BHATTACHARYA VS ACIT IN ITA NO 1303/KOL/2010 DATED 06.11.2015 WHEREIN IDENTICAL PROPOSITION HAS BEEN FOLLOWED BY THE TRIBUNAL. THE LEARNED DR RELIED ON THE ORDER OF THE CIT(A). 11. WE HAVE ALREADY O BSERVED 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 THE EAR LIER 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. ' MR. CHOWDHURY IN COURSE OF ARGUMENT HAS URGED US TO REMAND THE MATTER BEFORE THE A SSESSING OFFICER. ACCORDING TO HIM, THIS WAS A TECHNICAL FLAW, WHICH THE REVENUE MUST BE GIVEN A CHANCE TO CURE. THE REASON WHY THE PENALTY ORDER WAS NOT SUSTAINED BY THE TRIBUNAL APPEARS FROM THE PASSAGES OF THE DECISION OF THE TRIBUNAL QUOTED EARLIER IN WE FIND THAT THERE WAS NO SPECIFIC CHARGE AGAINST THE ASSESSEE IN THE NOTICE. REVENUE HAS MISSED OUT THEIR OPPORTUNITY TO SUBJECT THE ASSESSEE TO THE PENALTY PROCEEDING BY NOT ISSUING A PROPER NOTICE. NO SPECIFIC CASE HAS BEEN MADE OUT BY THE REVENUE AS TO SHOULD BE REMANDED EXCEPT THAT THE ASSESSEE HAD NOT PARTICIPATED PROPERLY IN THE ASSESSMENT PROCEEDINGS BUT FOR THAT REASON BEST JUDGMENT ASSESSMENT HAS BEEN MADE AND THE INCOME, WHICH HAD ESCAPED ASSESSMENT HAS BEEN ADDED TO THE INCOME OF 4 (2) OF THE INCOME TAX ACT, 1961. W HILE THE NOTICE APPEARS TO BE FOR FURNISHING INACCURATE PARTICULAR OF INCOME THE PENALTY WAS LEVIED FOR CONCEALMENT OF THE HONBLE JURISDICTIONAL HIGH COURT I N THE CASE OF PR. CIT VS. DR. MURARI MOHAN KOLEY IN ITAT NO. 306 OF 2017, G.A. NO. 2968 OF 2017 , JUDGMENT DT. 18 TH JULY, 2018, HELD AS 10. THE LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE DECISION OF THE HON'BLE THE CASE OF CIT VS. SSA 'S EMERALD MEADOWS IN ITA NO.380 OF 2015 DATED 23.11.2015 WHEREIN THE HON'BLE KARNATAKA HIGH COURT FOLLOWING ITS OWN DECISION IN CIT VS MANJUNATHA COTTON AND GINNING FACTORY (2013) 359 ITR 565 TOOK A VIEW THAT IMPOSING OF PENALTY U/S. 271(1)(C) OF THE ACT IS BAD IN LAW AND INVALID FOR THE REASON THAT THE SHOW CAUSE NOTICE U/S 274 OF THE ACT DOES NOT SPECIFY THE CHARGE AGAINST THE ASSESSEE AS TO WHETHER IT IS FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE LD. COUNSEL FURTHER BROUGHT TO OUR NOTICE THAT AS AGAINST THE DECISION OF THE HON'B LE KARNATAKA HIGH COURT THE REVENUE PREFERRED AN APPEAL IN SLP IN CC NO.11485 OF 2016 AND THE HON'BLE SUPREME COURT BY ITS ORDER DATED 05.08.2016 DISMISSED THE SLP PREFERRED BY THE DEPARTMENT. THE LD. COUNSEL ALSO BROUGHT TO OUR NOTICE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS SHRI SAMSON PERINCHERY IN ITA NO.1154 OF 2014 DATED 05.01.2017 WHEREIN THE HON'BLE BOMBAY HIGH COURT FOLLOWING THE DECISION OF THE THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF OF CIT VS MANJUNATHA FACTORY (SUPRA) CAME TO THE CONCLUSION THAT IMPOSITION OF PENALTY ON DEFECTIVE SHOW CAUSE NOTICE WITHOUT SPECIFYING THE CHARGE AGAINST THE ASSESSEE CANNOT BE SUSTAINED. OUR ATTENTION WAS ALSO D RAWN TO THE DECISION OF ITAT IN THE CASE OF SUVAPRASANNA BHATTACHARYA VS ACIT IN ITA NO 1303/KOL/2010 DATED 06.11.2015 WHEREIN IDENTICAL PROPOSITION HAS BEEN FOLLOWED BY THE TRIBUNAL. THE LEARNED DR RELIED ON THE ORDER OF THE BSERVED 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 THE LIER 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. ' MR. CHOWDHURY IN COURSE OF ARGUMENT HAS URGED US TO REMAND THE MATTER BEFORE THE SSESSING OFFICER. ACCORDING TO HIM, THIS WAS A TECHNICAL FLAW, WHICH THE REVENUE MUST BE GIVEN A CHANCE TO CURE. THE REASON WHY THE PENALTY ORDER WAS NOT SUSTAINED BY THE TRIBUNAL APPEARS FROM THE PASSAGES OF THE DECISION OF THE TRIBUNAL QUOTED EARLIER IN THIS JUDGEMENT. WE FIND THAT THERE WAS NO SPECIFIC CHARGE AGAINST THE ASSESSEE IN THE NOTICE. REVENUE HAS MISSED OUT THEIR OPPORTUNITY TO SUBJECT THE ASSESSEE TO THE PENALTY PROCEEDING BY NOT ISSUING A PROPER NOTICE. NO SPECIFIC CASE HAS BEEN MADE OUT BY THE REVENUE AS TO WHY THE MATTER SHOULD BE REMANDED EXCEPT THAT THE ASSESSEE HAD NOT PARTICIPATED PROPERLY IN THE ASSESSMENT PROCEEDINGS BUT FOR THAT REASON BEST JUDGMENT ASSESSMENT HAS BEEN MADE AND THE INCOME, WHICH HAD ESCAPED ASSESSMENT HAS BEEN ADDED TO THE INCOME OF THE ASSESSEE. IT ITA NO. 2044/KOL/2018 ASSESSMENT YEAR: 2008-09 ARUN KUMAR BOSE HILE THE NOTICE APPEARS TO BE FOR PENALTY WAS LEVIED FOR CONCEALMENT OF PR. CIT VS. DR. MURARI MOHAN JULY, 2018, HELD AS 10. THE LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE DECISION OF THE HON'BLE 'S EMERALD MEADOWS IN ITA NO.380 OF 2015 DATED 23.11.2015 WHEREIN THE HON'BLE KARNATAKA HIGH COURT FOLLOWING ITS OWN DECISION IN FACTORY (2013) 359 ITR 565 TOOK A VIEW THAT IMPOSING OF PENALTY U/S. 271(1)(C) OF THE ACT IS BAD IN LAW AND INVALID FOR THE REASON THE ACT DOES NOT SPECIFY THE CHARGE AGAINST THE ASSESSEE AS TO WHETHER IT IS FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE LD. COUNSEL FURTHER BROUGHT TO OUR NOTICE THAT AS LE KARNATAKA HIGH COURT THE REVENUE PREFERRED AN APPEAL IN SLP IN CC NO.11485 OF 2016 AND THE HON'BLE SUPREME COURT BY ITS ORDER DATED 05.08.2016 DISMISSED THE SLP PREFERRED BY THE DEPARTMENT. THE LD. COUNSEL ALSO BROUGHT TO OUR NOTICE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS SHRI SAMSON PERINCHERY IN ITA NO.1154 OF 2014 DATED 05.01.2017 WHEREIN THE HON'BLE BOMBAY HIGH COURT FOLLOWING CIT VS MANJUNATHA FACTORY (SUPRA) CAME TO THE CONCLUSION THAT IMPOSITION OF PENALTY ON DEFECTIVE SHOW CAUSE NOTICE WITHOUT SPECIFYING THE CHARGE AGAINST THE ASSESSEE CANNOT BE RAWN TO THE DECISION OF ITAT IN THE CASE OF SUVAPRASANNA BHATTACHARYA VS ACIT IN ITA NO 1303/KOL/2010 DATED 06.11.2015 WHEREIN IDENTICAL PROPOSITION HAS BEEN FOLLOWED BY THE TRIBUNAL. THE LEARNED DR RELIED ON THE ORDER OF THE BSERVED 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 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 THE LIER 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. ' MR. CHOWDHURY IN COURSE OF ARGUMENT HAS URGED US TO REMAND THE MATTER BEFORE THE SSESSING OFFICER. ACCORDING TO HIM, THIS WAS A TECHNICAL FLAW, WHICH THE REVENUE MUST BE GIVEN A CHANCE TO CURE. THE REASON WHY THE PENALTY ORDER WAS NOT SUSTAINED BY THE TRIBUNAL THIS JUDGEMENT. WE FIND THAT THERE WAS NO SPECIFIC CHARGE AGAINST THE ASSESSEE IN THE NOTICE. REVENUE HAS MISSED OUT THEIR OPPORTUNITY TO SUBJECT THE ASSESSEE TO THE PENALTY PROCEEDING BY NOT ISSUING WHY THE MATTER SHOULD BE REMANDED EXCEPT THAT THE ASSESSEE HAD NOT PARTICIPATED PROPERLY IN THE ASSESSMENT PROCEEDINGS BUT FOR THAT REASON BEST JUDGMENT ASSESSMENT HAS BEEN MADE AND THE ASSESSEE. IT WAS INCUMBENT UPON THE REVENUE TO MAKE OUT A SPECIFIC CASE FOR IMPOSITION OF PENALTY, ON WHICH COUNT THE REVENUE HAS FAILED. UNDER SUCH CIRCUMSTANCES, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE TRIBUNAL'S ORDER. THE TRIBUNAL'S ORDER DOES NOT SUFFER FROM ANY ERROR OF LAW. NO SUBSTANTIAL QUESTION OF LAW IS INVOLVED IN THIS APPEAL. HENCE, THE SAME IS DISMISSED. HENCE, STAY PETITION IS ALSO DISMISSED. THERE SHALL BE NO ORDER AS TO COSTS. 4. THE PROPOSITION OF LAW LAID DOWN IN THE ABOVE THE PRESENT CASE. WE, THEREFORE, RESPECTFULLY FOLLOW JURISDICTIONAL HIGH COURT A N OFFICER UNDER SECTION 271(1)(C) 5. IN THE RESULT, APPEAL OF THE ASSESSEE KOLKATA, THE SD/- [S.S. GODARA] JUDICIAL MEMBER DATED : 19.02.2020 {SC SPS} COPY OF THE ORDER FORWARDED TO: 1. ARUN KUMAR BOSE PROPRIETOR OF TECHNO POWER G.T. ROAD (WEST) GOPALPUR P.O. ASANSOL DIST. PASCHIM BARDHAMAN (W.B.) PIN - 713304 2. INCOME TAX OFFICER, WARD- 1(2), ASANSOL 3.CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 5 WAS INCUMBENT UPON THE REVENUE TO MAKE OUT A SPECIFIC CASE FOR IMPOSITION OF PENALTY, ON WHICH COUNT THE REVENUE HAS FAILED. UNDER SUCH CIRCUMSTANCES, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE TRIBUNAL'S ORDER. DOES NOT SUFFER FROM ANY ERROR OF LAW. NO SUBSTANTIAL QUESTION OF LAW IS INVOLVED IN THIS APPEAL. HENCE, THE SAME IS DISMISSED. HENCE, STAY PETITION IS ALSO DISMISSED. THERE SHALL BE NO ORDER AS TO COSTS. THE PROPOSITION OF LAW LAID DOWN IN THE ABOVE CASE-LAW IS SQUARELY APPLICABLE IN THE PRESENT CASE. WE, THEREFORE, RESPECTFULLY FOLLOW ING THE SAID DECISION OF THE N D QUASH THE IMPUGNED PENALTY IMPOSED BY THE UNDER SECTION 271(1)(C) OF THE ACT AND CONFIRMED BY THE LD. CIT(A). IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. KOLKATA, THE 19 TH DAY OF FEBRUARY, 20 20 [ J. SUDHAKAR REDDY ACCOUNTANT MEMBER DIST. PASCHIM BARDHAMAN (W.B.) 1(2), ASANSOL 5. CIT(DR), KOLKATA BENCHES, KOLKATA. ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES ITA NO. 2044/KOL/2018 ASSESSMENT YEAR: 2008-09 ARUN KUMAR BOSE WAS INCUMBENT UPON THE REVENUE TO MAKE OUT A SPECIFIC CASE FOR IMPOSITION OF PENALTY, ON UNDER SUCH CIRCUMSTANCES, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE TRIBUNAL'S ORDER. DOES NOT SUFFER FROM ANY ERROR OF LAW. NO SUBSTANTIAL QUESTION OF LAW IS INVOLVED IN THIS APPEAL. HENCE, THE SAME IS DISMISSED. HENCE, STAY PETITION IS ALSO DISMISSED. SQUARELY APPLICABLE IN THE SAID DECISION OF THE HONBLE PENALTY IMPOSED BY THE ASSESSING AND CONFIRMED BY THE LD. CIT(A). 20 . SD/- J. SUDHAKAR REDDY ] ACCOUNTANT MEMBER TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES