Sri Surendra Kumar Sharma, Durgapur V. ITO, Ward-1(4), Asansol, Asansol

ITA 207/KOL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0741 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 9 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 26-02-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ARINDAM BHATTACHARYA
• Assessee Lawyers: V N PUROHIT

Judgement Text

IN THE INCOME TAX APPELLATE TR IBUNAL KOLKATA D BENCH, KOLKATA [BEFORE SRI J. SUDHAKAR REDDY, HONBLE ACCOUNT ANT MEMBER & SRI S.S. VISWANETHRA RAVI, HONBLE JUD ICIAL MEMBER] I.T.A. NO. 497/KOL/2015 ASSESSMENT YEAR: 2005-06 I.T.A. NO. 206/KOL/2015 ASSESSMENT YEAR: 2005-06 I.T.A. NO. 207/KOL/2015 ASSESSMENT YEAR: 2005-06 SRI SURENDRA KUMAR SHARMA. ... APPELLANT PROP: SHEKHAWATI RAJASTHAN ROADWAYS MAIN GATE P.O. DURGAPUR 713 203 DIST. BURDWAN (WB) [PAN: ACGPA 1496 G INCOME TAX OFFICER, WARD 1(4), ASANSOL. ....RESPONDENT SAHANA APARTMENT LOWER CHELIDANGA PO: ASANSOL 713 304 DIST: BURDWAN (WB) APPEARANCES BY: SHRI V.N. PUROHIT, FCA, APPEARED ON BEHALF OF THE A SSESSEE. SHRI ARINDAM BHATTACHARYA, ADDL. CIT, DR APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : DECEMBER 12 TH , 2017 DATE OF PRONOUNCING THE ORDER : DECEMBER 21 ST , 2017 O R D E R PER BENCH :- THESE THREE APPEALS ARE FILED BY THE SAME ASSESSEE. AS THEY ARE PASSED UNDER DIFFERENT SECTIONS OF THE INCOME TAX ACT, 196 1 (HEREINAFTER THE ACT), WE ADJUDICATE THEM SEPARATELY, THOUGH BY WAY OF THIS C OMMON ORDER. 2. I.T.A. NO. 206/KOL/2015, IS AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-ASANSOL (HEREINAFTER THE LD. CIT(A)), WHEREIN HE REFUSED TO CONDONE THE DELAY IN FILING OF THE APPEAL. THE ASSE SSEES CONTENTION IS THAT THE ASSESSING OFFICER ASKED THE ASSESSEE TO SIGN A BLAN K ACKNOWLEDGEMENT SLIP AND 2 I.T.A. NO. 497/KOL/2015 ASSESSMENT YEAR: 2005-06 I.T.A. NO. 206/KOL/2015 ASSESSMENT YEAR: 2005-06 I.T.A. NO. 207/KOL/2015 ASSESSMENT YEAR: 2005-06 SRI SURENDRA KUMAR SHARMA THEREAFTER THE ASSESSING OFFICER INCORPORATED THE D ATE OF 31/12/2009, AS THE DATE OF SERVICE, THOUGH THE ASSESSEE ACTUALLY RECEIVED T HE ASSESSMENT ORDER ON 26/07/2010. THE LD. CIT(A) DISBELIEVED THE SAME AND HELD THAT FILING OF THE APPEAL ON 06/08/2010 BY THE ASSESSEE, AFTER RECEIVING THE ORDER ON 31/12/2009, IS BEYOND LIMITATION AND THE ASSESSEE COULD NOT PROPER LY EXPLAIN THE SAME. HE POINTED OUT THAT THE ACKNOWLEDGEMENT SLIP WAS A COM PUTER PRINTED ONE AND THERE WAS NO SCOPE OF THE ASSESSING OFFICER SUPER IMPOSIN G ANYTHING AND UNDER THESE CIRCUMSTANCES, THE CONTENTION OF THE ASSESSEE CANNO T BE BELIEVED. 2.1. THE ASSESSEE FILED AN AFFIDAVIT DT. 2 ND FEBRUARY, 2015, WHEREIN ALL THESE CONTENTIONS HAVE BEEN STATED. SUCH SWORN AFFIDAVIT CANNOT BE TAKEN IN A LOUD MANNER AND IT HAS TO BE CONTROVERTED WITH EVIDENCE. 3. WE ARE OF THE VIEW THAT THIS ISSUE SHOULD BE SET ASIDE TO THE FILE OF THE LD. CIT(A), FOR FRESH CONSIDERATION FOR THE FOLLOWING R EASONS:- A) AS POINTED OUT BY THE LD. COUNSEL FOR THE ASSESS EE, NORMAL TEAR OFF ACKNOWLEDGEMENT SLIPS ARE NOT PRE-TYPED BUT ARE GEN ERALLY PRINTED AND THE BLANKS ARE FILLED IN BY THE ASSESSING OFFICER. B) NORMALLY, THE DISPATCH SECTION OF THE OFFICE SER VES THE ASSESSMENT ORDER ON THE ASSESSEE AND WHEREAS IN THIS CASE, THE ASSESSEE CLAIMS THAT THE ASSESSING OFFICER HIMSELF HAS SERVED THE NOTICE. 4. ACCORDINGLY, WE DIRECT THE LD. CIT(A) TO ENQUIR E INTO THIS ISSUE RAISED BY EXAMINING THE DISPATCH REGISTER, THE DEMAND REGI STER AND ALSO WHETHER THE ASSESSING OFFICER HAS OBTAINED SIMILAR PRE-TYPED TE AR OFF ACKNOWLEDGEMENT SLIPS FROM OTHER ASSESSEE OF HIS CHARGE. HE ALSO MAY COND UCT ANY FURTHER ENQUIRY AS HE MAY DEEM FIT. 5. IN THE RESULT, THIS APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. 6. NOW WE TAKE UP, ITA NO. 497/KOL/2015. AT THE OU TSET WE FIND THAT THERE IS A DELAY OF 536 DAYS IN FILING OF THIS APPEAL. AFTER EXAMINING THE PETITION FOR 3 I.T.A. NO. 497/KOL/2015 ASSESSMENT YEAR: 2005-06 I.T.A. NO. 206/KOL/2015 ASSESSMENT YEAR: 2005-06 I.T.A. NO. 207/KOL/2015 ASSESSMENT YEAR: 2005-06 SRI SURENDRA KUMAR SHARMA CONDONATION, WE FIND THAT THE ASSESSEE WAS PREVENTE D BY SUFFICIENT CAUSE FROM APPEARING BEFORE THE TRIBUNAL. HENCE WE CONDONE THE DELAY AND ADMIT THIS APPEAL. 6.1. THE LD. CIT(A), HAS CONFIRMED THE PENALTY U/S 271A OF THE ACT, ON THE GROUND THAT HE ASSESSEE DID NOT MAINTAIN BOOKS OF A CCOUNTS AS SPECIFIED IN RULE 6F OF THE INCOME TAX RULES, 1962 (HEREINAFTER THE RUL ES). A PERUSAL OF RULE 6F OF THE RULES DEMONSTRATES THAT THIS DOES NOT APPLY TO THE ASSESSEE, WHO IS A TRANSPORT COMMISSION AGENT. HENCE ON THIS GROUND, THIS PENALT Y HAS TO BE CANCELLED. MOREVER, THE ASSESSING OFFICER AT PAGE 3 OF HIS ORDER RECORD S THAT THE LD. COUNSEL FOR THE ASSESSEE HAS PRODUCED PRINTED CASH BOOK AND LEDGER BEFORE HIM, EVEN A TAX AUDIT REPORT HAS BEEN FILED WITH A RETURN. MERELY, BECAUS E THE ASSESSING OFFICER IS OF THE OPINION THAT THE BOOKS OF ACCOUNTS ARE NOT RELIABLE , THE QUESTION OF THE LEVY OF PENALTY U/S 271A OF THE ACT, DOES NOT ARISE. 7. HENCE, FOR THESE REASONS, WE QUASH THE PENALTY L EVIED ON THE ASSESSEE AND ALLOW THIS APPEAL. 8. ITA NO. 206/KOL/2015. THE SOLE ISSUE IS AGAINST THE LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. A PERUSAL OF THE NOTICE ISSUE FOR LEVY OF PENALTY U/S 271(1)(C) OF THE ACT, DEMONSTRATES THAT THE CHARGE HAS NOT BE EN SPECIFIED BY STRIKING OFF THE INAPPLICABLE PORTIONS OF THE NOTICE. THUS, WE DEEM IT FIT AND PROPER TO QUASH THIS LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED IN PART. KOLKATA, THE 21 ST DAY OF DECEMBER, 2017. SD/- SD/- [ S. S. VISWANETHRA RAVI ] [ J. SUDHAKAR REDDY ] JUDICIAL MEMBER ACCOUNTANT M EMBER DATED : 21.12.2017 {SC SPS} 4 I.T.A. NO. 497/KOL/2015 ASSESSMENT YEAR: 2005-06 I.T.A. NO. 206/KOL/2015 ASSESSMENT YEAR: 2005-06 I.T.A. NO. 207/KOL/2015 ASSESSMENT YEAR: 2005-06 SRI SURENDRA KUMAR SHARMA COPY OF THE ORDER FORWARDED TO: 1. SRI SURENDRA KUMAR SHARMA PROP: SHEKHAWATI RAJASTHAN ROADWAYS MAIN GATE P.O. DURGAPUR 713 203 DIST. BURDWAN (WB) 2. INCOME TAX OFFICER, WARD 1(4), ASANSOL SAHANA APARTMENT LOWER CHELIDANGA PO: ASANSOL 713 304 DIST: BURDWAN (WB) 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY HEAD OF OFFICE/ D.D.O. ITAT, KOLKATA BENCHES