Mr. Tarun Kumar Saha, Durgapur V. ACIT, Circle - 2, Durgapur, Durgapur

ITA 2165/KOL/2009

• Counselvise Citation: 216523514 RSA 2009
• Duration Of Justice: 3 year(s) 7 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2013
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 23-08-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 29-12-2009
• Court: TRIBUNAL
• Department Lawyers: AMITAVA CHOUDHURY L
• Assessee Lawyers: S K TULSIYAN LD
• Keywords: Reasonable cause
• Section: 273B

Judgement Text

ITA NO. 2165/KOL/09-A-JM 1 , A IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH: KO LKATA () , !'!# 1%& , , ( BEFORE SRI PRAMOD KUMAR, AM & SRI GEORGE MATHAN, JM ) ' / I.T.A NO.2165/KOL/2009 (&' )*/ ASSESSMENT YEAR :2005-06 MR. TARUN KUMAR SAHA VS. A.C.I.T, CIRC LE-2, DURGAPUR PAN: AIXPS 9491A ( %, /APPELLANT ) ( -%,/ RESPONDENT ) %, / FOR THE APPELLANT/ASSESSEE: . / SHRI S.K TULSIYAN, ADVOCATE, LD. AR -%, / FOR THE RESPONDENT/DEPARTMENT: . / SHRI AMITAVA CHOUDHURY, LD. SR.DR &/ 0 1 /DATE OF HEARING: 05-08-2013 2) 0 1 /DATE OF PRONOUNCEMENT: 8 -08-2013 3 /ORDER !'!# 1%& , SHRI GEORGE MATHAN, JUDICIAL MEMBER: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST T HE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS), DURGAPUR IN APPEAL NO. 31/DGP/CIT(A)/08-09 DATED 22-01-2009 FOR THE ASSESSMENT YEAR 2005-06 AG AINST THE LEVY OF PENALTY U/S. 271E OF THE I.T ACT 1961.. 2. SHRI S.K TULSIYAN, ADVOCATE, LEARNED AUTHORISE D REPRESENTATIVE APPEARED ON BEHALF OF THE ASSESSEE AND SHRI AMITAVA CHOUDHURY , LEARNED SR..DR APPEARED ON BEHALF OF THE REVENUE. 3. IN THE ASSESSEES APPEAL, THE ASSESSEE HAS RAI SED FOLLOWING GROUNDS OF APPEAL:- 1. THAT THE A.O. AND THE C1T(A) WRONGLY IMPOSED AND UPHELD PENALTY UNDER SECTION 271 E IN RESPECT OF REPAYMENT OF LOAN TO MR.A. KHATOR RS. 1.00 LAKH AND TO MR. N.C.SAHA RS. 1,15 ,000/- WHEN THE IMPUGNED LOAN WAS FOUND GENUINE. 2. THAT WHEN CIT(A) HIMSELF DELETED AN ADDITION OF RS.L,00,000!- IN THE CASE OF A.KHATOR, A GENUINE REPAYMENT OF LOAN, HE ERRED IN HAVING UPHELD THE PENALTY IN RESPECT OF THE IMPUGNE D LOAN. 3. THAT THE CIT(A) FAILED TO APPRECIATE THE PROVISI ONS OF SECTION 273B AS PER WHICH IN THE CASE OF REASONABLE CAUSE, PENALTY IS NOT WARRANTED. 4. THAT THE ORDER OF THE A.O. & CIT(A) ON THE AFORE SAID POINT MAY BE ANNULLED AND THE APPELLANT BE GIVEN NECESSARY RELIE F AS PRAYED FOR. ITA NO. 2165/KOL/09-A-JM 2 5. THE APPELLANT CRAVES LEAVE TO AMEND, ALTER, MODI FY, ADD TO, ABRIDGE AND! OR RESCIND ANY OR ALL OF THE ABOVE GRO UNDS. 4. IT WAS SUBMITTED BY THE LEARNED AUTHORISED REP RESENTATIVE FOR THE ASSESSEE THAT THE APPEAL WAS ONLY IN RELATION TO THE PENALTY CON FIRMED IN RESPECT OF SHRI. A. KHATOR AND SHRI N.C SAHA. IT WAS THE SUBMISSION THAT THE LEA RNED COMMISSIONER OF INCOME- TAX(APPEALS) UNDER SIMILAR CIRCUMSTANCES HAD DELETE D THE PENALTY LEVIED IN THE CASE OF SHRI A.K LAHIRI AND SHRI TATHATGATA SAHA. IT WAS THE S UBMISSION THAT THE ASSESSEE HAD REPAID THE LOANS TAKEN BY HIM (ASSESSEE) FROM THE SAID 4 PERSONS BY ISSUING OF BEARER CHEQUES. IT WAS THE SUBMISSION THAT THE CHEQUES ISSUED WERE NOT ACCOUNT PAYEE CHEQUES. IT WAS THE FURTHER SUBMISSION THAT THE APPEAL FILED BY THE A SSESSEE WAS BELATED BY 9 MONTHS. IT WAS THE SUBMISSION THAT THE DELAY WAS ON ACCOUNT OF THE FACT THAT THE ASSESSEE WAS FROM MOFFUSIL PLACE AND HIS CHARTERED ACCOUNTANT ALSO DID NOT HAVE ANY EXPERIENCE IN FILING THE APPEAL BEFORE THE HONBLE TRIBUNAL. THE ASSESSEE H AS ALSO FILED NECESSARY AFFIDAVIT. IT WAS THE SUBMISSION THAT ONLY ON ACCOUNT OF TECHNICAL B REACH, THE PENALTY U/S. 271E HAS BEEN LEVIED IN THE CASE OF THE ASSESSEE. IT WAS THE FU RTHER SUBMISSION THAT THE PENALTY AS DELETED BY THE COMMISSIONER OF INCOME-TAX(APPEALS ) IN RESPECT OF 2 PERSONS BEING S/SHRI A.K LAHIRI AND TATHATGATA SAHA HAS ALSO BEEN ACCE PTED BY THE REVENUE AND NO APPEAL HAS BEEN PREFERRED. IT WAS THE SUBMISSION THAT TH E PENALTY AS CONFIRMED IN THE CASE OF REPAYMENT TO S/SHRI A. KHATOR AND N.C SAHA BE DELE TED. 5. IN REPLY, THE LEARNED SR.DR DID NOT OBJECT TO T HE CONDONATION OF THE DELAY IN FILING THE APPEAL. IT WAS THE SUBMISSION THAT THE BANK A CCOUNT OF THE ASSESSEE SHOWS THAT THE PAYMENTS MADE TO S/SHRI A. KHATOR AND N.C SAHA WER E THROUGH BEARER CHEQUES. THUS, THE PROVISIONS OF SECTION 269T OF THE ACT WAS VIOLATED. IT WAS THE SUBMISSION AS THERE WAS VIOLATION OF SECTION 269T, THE PENALTY U/S. 271E HA S BEEN RIGHTLY LEVIED. IT WAS, HOWEVER, FAIRLY AGREED BY BOTH THE SIDES THAT THE ISSUE COU LD BE RESTORED TO THE FILE OF THE ASSESSING OFFICER IN SO FAR AS THE ASSESSING OFFICER HAS NO T CONSIDERED THE REASONABLE CAUSE. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AS TH E LEARNED DR HAS NOT OBJECTED TO THE CONDONATION OF DELAY, THE DELAY IS CONDONED. AD MITTEDLY, A PERUSAL OF THE BANK ACCOUNT OF THE ASSESSEE CLEARLY SHOWS THAT THE ASSESSEE H AS ISSUED BEARER CHEQUES TO BOTH S/SHRI A.KHATOR AND N.C SAHA. FURTHER, A PERUSAL O F THE APPELLATE ORDER SHOWS THAT THE ASSESSING OFFICER HAD ORIGINALLY DISALLOWED THE C ASH CREDIT IN THE CASE OF SHRI A. KHATOR, ITA NO. 2165/KOL/09-A-JM 3 WHICH HAS BEEN SUBSEQUENTLY DELETED BY THE LEARNED COMMISSIONER OF INCOME- TAX(APPEALS). THUS, THE QUESTION OF GENUINENESS OF TRANSACTIONS BETWEEN THE ASSESSEE AND SHRI A.KHATOR NO MORE REMAINS IN DOUBT. ADMITTEDLY, THE DEFAULT IN THE HANDS OF THE ASSESSEE IS TECHNICAL AND VENIAL DEFAULT. FOR SUC H TECHNICAL AND VENIAL DEFAULT, THE PROVISIONS OF SECTION 273B IS MADE APPLICABLE, WHIC H SHOWS THAT REASONABLE CAUSE CAN BE EXAMINED. A PERUSAL OF THE PENALTY ORDER CLEARLY SHOWS THAT THE ASSESSING OFFICER HAD NO OPPORTUNITY TO EXAMINE THE REASONABLE CAUSE FOR TH E TRANSACTION. IN THE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ISSUE OF PENALTY LEVIED U /S. 271E OF THE ACT IN RESPECT OF S/SH. A.KHATOR AND N.C SAHA IS LIABLE TO BE RESTORED TO T HE FILE OF THE ASSESSING OFFICER FOR RE- ADJUDICATION AFTER EXAMINING THE REASONABLE CAUSE U /S. 273B AS ALSO AFTER TAKING THE COGNIZANCE OF THE DELETION OF PENALTY BY THE LEARN ED COMMISSIONER OF INCOME-TAX(APPEALS) IN THE CASES OF S/SH. A.K LAHIRI AND TATHAGATA SAHA , WHICH HAS NOT BEEN APPEALED BY THE REVENUE. THEREFORE, THE ISSUES ARE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR RE- ADJUDICATION AFTER GRANTING THE ASSESSEE ADEQUATE OPPORTUNITY OF HEARING TO SUBSTANTIATE HIS CASE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED FOR STATISTICAL PURPOSE. 4 3 5 & 6 47 THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON 8-08 -2013 - SD/- SD/- *PP/SPS 3 0 ((8 98): / COPY OF THE ORDER FORWARDED TO: 1. . %, / THE APPELLANT : SHRI TARUN KUMAR SAHA PROP: NIRM ALA SERVICE STATION, M.G AVENUE, DURGAPUR-5, BURDWAN. 2 -%, / THE RESPONDENT: ACIT, CIRCLE-2, DURGAPUR. 3 4. . (3& / THE CIT (3& ( )/ THE CIT(A) 5 . ;(6 (& / DR, KOLKATA BENCH 6 . GUARD FILE . -8 (/ TRUE COPY, 3&/ BY ORDER, 4 ! /ASSTT REGISTRAR ( . , ) ( PRAMOD KUMAR, ACCOUNTANT MEMBER) ( !'!# 1 % & , ) (GEORGE MATHAN, JUDICIAL MEMBER) ( (( ( 1 1 1 1 ) )) ) DATE 8 -08-2013