Kesoram Industries Limited, Kolkata V. DCIT, Circle-5, Kolkata, Kolkata

ITA 2111/KOL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1558 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 7 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 17-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GOULEN HANGSHING
• Assessee Lawyers: D S DAMLE

Judgement Text

1 ITA NO.2111/KOL/2014 KESORAM INDUSTRIES LTD., AY 2005-06 , C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA () BEFORE . , /AND . . , ) [BEFORE SHRI J. SUDHAKAR REDDY, AM & SHRI A. T. VA RKEY, JM] I.T.A. NO. 2111/KOL/2014 ASSESSMENT YEAR: 2005-06 KESORAM INDUSTRIES LTD. (PAN: AABCK2417P) VS. DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-5, KOLKATA. APPELLANT RESPONDENT DATE OF HEARING 20.06.2017 DATE OF PRONOUNCEMENT 12.07.2017 FOR THE APPELLANT SHRI D. S. DAMLE, AR FOR THE RESPONDENT SHRI GOULEN HANGSHING, CIT, DR ORDER PER SHRI A.T.VARKEY, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-VI, KOLKATA DATED 03.09.2014 FOR AY 2005-06 CONFIRMING THE PENA LTY U/S. 271(1)(C) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE AS SESSEE SHRI D. S. DAMLE DREW OUR ATTENTION TO PAGE NO. 1 OF THE PAPER BOOK, WHICH IS THE NOTICE U/S. 274 OF THE ACT R. W. S. 271 OF THE ACT DATED 31.12.2007 SERVED ON THE ASSESSEE WHEREIN WE NOTE THAT THE AO HAS NOT STRICKEN OUT THE LIMB OF CHARGE / DEFAULT FOR WHICH THE PENALTY IS BEING INITIATED AGAINST THE ASSESSEE. WE FIND THAT THE NOTICE HAS BEEN ISSUED FOR BOTH THE FAULTS SPELLED OUT IN SEC. 271(1)(C) OF THE ACT I. E. HAVING CONCEALED THE P ARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME WITHOUT SPECI FYING FOR WHICH FAULT THE ASSESSEE IS BEING PROCEEDED AGAINST BY THE AO. WE NOTE THAT I N A SIMILAR CASE THE HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF CIT VS MANJUNATHA COTTON AND GINNING FACTORY REPOR TED IN (2013) 359 ITR 565 (KAR) HAS CANCELLED THE PENALTY TAKING NOTE OF THE FACT THAT THE PENALTY NOTICE DID NOT SPELL OUT CLEARLY AS TO WHET HER THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME OR HAS FURNISHED INACCURAT E PARTICULARS OF INCOME. WE ALSO FIND 2 ITA NO.2111/KOL/2014 KESORAM INDUSTRIES LTD., AY 2005-06 THAT HONBLE KARNATAKA HIGH COURT IN THE CASE OF CI T VS. SSAS EMERALD MEADOWS, REPORTED IN (2016) 73 TAXMANN.COM 241 (KAR) ENDORSE D THE SAME VIEW IN MANJUNATHA COTTON AND GINNING FACTORY (SUPRA) AND HELD AS UNDER: 3. THE TRIBUNAL HAS ALLOWED THE APPEAL FILED BY T HE 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 B EEN 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 ASSESSEE , HAS RELIED ON THE DECISION OF THE DIVISION BENCH OF THIS COURT RENDERED IN THE CASE O F CIT VS. MANJUNATHA COTTON & GINNING FACTORY (2013) 359 ITR 565/218 TAXMAN 423/35 TAXMAN N.COM 250(KAR). 4. IN OUR VIEW, SINCE THE MATTER IS COVERED BY JUD GMENT OF THE DIVISION BENCH OF THIS COURT, WE ARE OF THE OPINION, NO SUBSTANTIAL QUESTION OF L AW ARISES IN THIS APPEAL FOR DETERMINATION BY THIS COURT. THE APPEAL IS ACCORDINGLY DISMISSED . WE ALSO FIND THAT THE AFORESAID ORDER OF THE HONBL E HIGH COURT WAS CHALLENGED BY THE DEPARTMENT BEFORE THE HONBLE SUPREME COURT BY PREF ERRING AN SLP WHICH HAS BEEN DISMISSED WHICH FACT HAS BEEN REPORTED IN CIT VS. S SAS EMERALD MEADOWS (2016) 73 TAXMANN.COM 248 (SC). 3. WE NOTE THAT SINCE THE PENALTY NOTICE ISSUED TO THE ASSESSEE DATED 31.12.2007 DID NOT SPELL OUT AS TO WHICH DEFAULT THE ASSESSEE HAS COMM ITTED FOR WHICH PENALTY U/S. 271(1)(C) OF THE ACT HAS BEEN INITIATED, THEREFORE, RESPECTFULLY FOLLOWING THE HONBLE KARNATAKA HIGH COURTS ORDER IN MANJUNATHA COTTON & GINNING FACTOR Y (SUPRA) AND SSAS EMERALD MEADOWS (SUPRA), WE CANCEL THE PENALTY IMPOSED BY T HE AO WHICH HAS BEEN ERRONEOUSLY CONFIRMED BY THE LD. CIT(A). THEREFORE, APPEAL OF THE ASSESSEE IS ALLOWED. 4. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 12.07.2017 SD/- SD/- (J. SUDHAKAR REDDY) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 12TH JULY, 2017 JD.(SR.P.S.) 3 ITA NO.2111/KOL/2014 KESORAM INDUSTRIES LTD., AY 2005-06 COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT KESORAM INDUSTRIES LTD., 9/1, R. N. MUK HERJEE ROAD, KOLKATA-700 001. 2 RESPONDENT DCIT, CIRCLE-5, KOLKATA. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, SR. PVT. SECRETARY