Dayamayee Marble & Granite, Hooghly V. ITO, WD-2(1), HOOGHLY, Hooghly

ITA 211/KOL/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1684 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 3 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-06-2017
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 27-02-2015
• Court: TRIBUNAL
• Keywords: Non compliance
• Section: 142(1)

Judgement Text

1 ITA NO.211/KOL/2015 DAYAMAYEE MARBLE & GRANITE. AY 2010-11 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA [BEFORE SHRI P. M. JAGTAP, AM & SHRI A. T. VARKEY, JM] I.T.A. NO. 211/KOL/2015 ASSESSMENT YEAR: 2010-11 DAYAMAYEE MARBLE & GRANITE (PAN: AAFFJ8767J) VS. INCOME-TAX OFFICER, WARD-1(1), HOOGHLY. APPELLANT RESPONDENT DATE OF HEARING 16.05.2017 DATE OF PRONOUNCEMENT 07.06.2017 FOR THE APPELLANT SHRI SOMNATH GHOSH, ADVOCATE FOR THE RESPONDENT SHRI SALLONG YADEN, ADDL. CIT ORDER PER SHRI A.T.VARKEY, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-6, KOLKATA DATED 30.12.2014 FOR AY 2010-11 AGAINST THE PENALTY LEVIED U/S. 271(1)(B) OF THE ACT. 2. AT THE OUTSET, IT WAS POINTED OUT BY LD. COUNSEL FOR THE ASSESSEE THAT THE IMPUGNED ORDER IS AN EX PARTE ORDER PASSED BY THE L D. CIT(A) WITHOUT GIVING SUFFICIENT OPPORTUNITY TO THE ASSESSEE. THE LD. A. R ALSO BROUGHT TO OUR NOTICE THAT THE NOTICE INITIATING U/S. 271 (1 )(B) OF THE INCOME-TA X ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) DID NOT SPELL OUT AS TO THE FAULT AND T HAT TOO ON WHICH DATES OMISSION ON THE PART OF THE ASSESSEE TO COMPLY WITH THE NOTICE CON STITUTES THE FAULT WHICH PROMPTED THE ISSUANCE OF NOTICE U/S. 271 (1) (B) OF THE ACT. AC CORDING TO HIM, AS PER THE ORDER OF THE HONBLE KARNATAKA HIGH COURT IN CIT VS MANJUNATHA COTTON AND GINNING FACTORY REPORTED IN (2013) 359 ITR 565 (KAR) AND CIT VS. S S AS EMERALD MEADOWS, REPORTED IN (2016) 73 TAXMANN. COM 241 (KAR), WHICH HAS BEEN APPROVED BY THE HONBLE SUPREME COURT, THE NOTICE INITIATING PENA LTY HAS TO SPELL OUT CLEARLY THE DEFAULT FOR WHICH THE ASSESSEE IS BEING PROCEEDE D AGAINST BEFORE IMPOSING THE 2 ITA NO.211/KOL/2015 DAYAMAYEE MARBLE & GRANITE. AY 2010-11 PENALTY. IN THIS CASE, THE DEFAULT AS TO WHICH DAT E THE ASSESSEES NON COMPLIANCE OF 142(1) NOTICE HAS NOT BEEN SPECIFIED, SO, NOTICE IT SELF IS BAD IN LAW AND, THEREFORE, CONSEQUENT PENALTY IS BAD IN LAW. HOWEVER, WE ARE N OT INCLINED TO PASS ANY ORDERS ON MERIT OF THE AFORESAID CONTENTION OF THE LD. AR. S INCE THE IMPUGNED ORDER IS AN EX PARTE ORDER, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE SHOULD PLEAD THE SAME IF HE IS SO ADVISED AND OTHER DEFENCE BEFORE THE LD. C IT(A) AND THE LD. CIT(A) HAS TO PASS SPEAKING ORDER ON MERIT. THEREFORE, WE ARE INC LINED TO SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF THE LD. CIT(A) TO DECIDE THE APPEAL ON MERITS. WITH THE AFORESAID OBSERVATION THE APPEA L OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 3. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 07.06.2017 . SD/- SD/- (P. M. JAGTAP) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 7 TH JUNE, 2017 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT DAYAMAYEE MARBLE & GRANITE, C/O, S. N. GHOSH & ASSOCIATES, ADVOCATES, SEVEN BROTHERSLODGE, P.O. BUROSHIBTALA, P. S. CHINDURAH, DIST. HOOGHLY, PIN 712 105 2 RESPONDENT ITO, WARD-2(1), HOOGHLY. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .