Shilpa Bihani, Hooghly V. I.T.O.,Ward-23(2), Hooghly

ITA 2180/KOL/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 7243 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 20-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 271(1)(c); 274

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA A BENCH, KOLKATA [BEFORE SHRI P.M. JAGTAP, HONBLE VICE PRESIDENT-KZ & SHRI ABY T. VARKEY, HONBLE JUDICIAL MEMBER] I.T.A. NO. 2180/KOL/2019 ASSESSMENT YEAR: 2014-15 SHILPA BIHARI...........................................................APPELLANT C/O S.N. GHOSH & ASSOCIATES, ADVOCATES SEBEN BROTHERS LODGE P.O. BUROSHIBTALA P.S. CHINSURAH DIST. HOOGHLY WEST BENGAL 712 105 [PAN: BBMPB 6879 A] VS. INCOME TAX OFFICER, WARD-23(2), HOOGHLY.....................................................RESPONDENT APPEARANCES BY: SHRI SOMNATH GHOSH, ADVOCATE, APPEARED ON BEHALF OF THE ASSESSEE. SHRI SUPRIYO PAL, JCIT, SR. D/R, APPEARING ON BEHALF OF THE REVENUE DATE OF CONCLUDING THE HEARING : OCTOBER 25 TH , 2019 DATE OF PRONOUNCING THE ORDER : OCTOBER 25 TH , 2019 O R D E R PER ABY T. VARKEY, JM :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY LD. COMMISSIONER OF INCOME TAX (APPEALS)-6, KOLKATA [LD. CIT(A)], DATED 31/07/2019, CONFIRMING THE PENALTY IMPOSED BY THE AO U/S 271(1)(C) OF THE INCOME TAX ACT, 1961, FOR THE ASSESSMENT YEAR 2014-15 2. WE HAVE HEARD THE ARGUMENTS OF THE RESPECTIVE PARTIES AND ALSO PERUSED THE RELEVANT MATERIALS AVAILABLE ON RECORD. 4. THE LD. COUNSEL FOR THE ASSESSEE HAS RAISED A PRELIMINARY OBJECTION CHALLENGING THE PENALTY IMPOSED U/S 271(1)(C) ON THE GROUND THAT THE NOTICE ISSUED INITIATING THE PENALTY PROCEEDINGS BEING DEFECTIVE, THE PENALTY IMPOSED IN PURSUANCE OF SUCH DEFECTIVE NOTICE IS NOT SUSTAINABLE IN LAW. HE HAS PLACED ON RECORD, A COPY OF THE SAID NOTICE ISSUED BY THE A.O. AND POINTED OUT THAT THE IRRELEVANT PORTION HAVING BEEN NOT STRUCK OFF BY THE A.O. IN THE SAID NOTICES, THE EXACT CHARGE/S AGAINST THE ASSESSEE AS TO WHETHER HE CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCUR SUPPORT OF HIS CONTENTION, THE DECISION OF THE COORDINATE B VIDE ITS ORDER DATED 01.12.2017 ISSUE HAS BEEN DECIDED BY THE TRIBUNAL AFTER TAKING INTO CONSIDERATION, THE RELEVANT DECISION OF THE DIFFERENT HIGH COURTS VIDE PARAGRAPH NO. 14 AND 15 OF ITS ORDER WHICH READ AS UNDER: FROM THE AFORESAID DISCUSSIO HONBLE BOMBAY HIGH COURT AND THE HONBLE PATNA HIGH COURT IS THAT ISSUANCE OF NOTICE IS AN ADMINISTRATIVE DEVICE FOR INFORMING THE ASSESSEE ABOUT THE PROPOSAL TO LEVY PENALTY IN ORDER TO ENABLE HIM TO EXP MERE MISTAKE IN THE LANGUAGE USED OR MERE NON CANNOT BY ITSELF INVALIDATE THE NOTICE. THE TRIBUNAL BENCHES AT MUMBAI AND PATNA BEING SUBORDINATE TO THE HONBLE BOMBAY HIGH COURT AND P BOUND TO FOLLOW THE AFORESAID VIEW. THE TRIBUNAL BENCHES AT BANGALORE HAVE TO FOLLOW THE DECISION OF THE HONBLE KARNATAKA HIGH COURT. AS FAR AS BENCHES OF TRIBUNAL IN OTHER JURISDICTIONS ARE CONCERNED, THERE ARE TWO VIEWS ON THE ISSUE, ONE IN FAVOUR OF THE ASSESSEE RENDERED BY THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON & GINNING (SUPRA) AND OTHER OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF SMT. KAUSHALYA. IT IS SETTLED LEGAL POSITION THAT WHERE TWO VIEWS ARE A VAILABLE ON AN ISSUE, THE VIEW FAVOURABLE TO THE ASSESSEE HAS TO BE FOLLOWED. WE, THEREFORE, PREFER TO FOLLOW THE VIEW EXPRESSED BY THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON & GINNING (SUPRA). WE HAVE ALREADY OBSERVED THAT THE SHOW 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 DO 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 EARLIER PART OF THIS ORDER ACCEPTED. WE, THEREFORE, HOLD THAT IMPOSITION OF PENALTY IN THE PRESENT CASE CANNOT BE SUSTAINED AND THE SAME IS DIRECTED TO BE CANCELLED. 4. IN OUR OPINION, THE DECISION RENDERED BY THE COORDINATE BENCH IN THE CASE OF JEETMAL CHORARIA VS ACIT (SUPRA) EVEN THE LD. DR HAS NOT DISPUTED THIS RESPECTFULLY FOLLOWING THE SAID DECISION OF THE COORDINATE BENCH IMPUGNED PENALTY IMPOSED BY THE ACT AND CONFIRMED BY THE LD. CIT(A). 2 HIS INCOME OR FURNISHED INACCUR ATE PARTICULARS OF SUCH INCOME WAS NOT CLEAR. IN SUPPORT OF HIS CONTENTION, THE LEARNED COUNSEL FOR THE ASSESSEE HAS RELIED B ENCH IN THE CASE OF JEETMAL CHORARIA VS ACIT 01.12.2017 PASSED IN ITA NO. 956/KOL/2016 WHEREIN A SIMILAR DECIDED BY THE TRIBUNAL AFTER TAKING INTO CONSIDERATION, THE RELEVANT DECISION OF THE DIFFERENT HIGH COURTS VIDE PARAGRAPH NO. 14 AND 15 OF ITS ORDER FROM THE AFORESAID DISCUSSIO N IT CAN BE SEEN THAT THE LINE OF REASONING OF THE HONBLE BOMBAY HIGH COURT AND THE HONBLE PATNA HIGH COURT IS THAT ISSUANCE OF NOTICE IS AN ADMINISTRATIVE DEVICE FOR INFORMING THE ASSESSEE ABOUT THE PROPOSAL TO LEVY PENALTY IN ORDER TO ENABLE HIM TO EXP LAIN AS TO WHY IT SHOULD NOT BE DONE. MERE MISTAKE IN THE LANGUAGE USED OR MERE NON - STRIKING OF THE INACCURATE PORTION CANNOT BY ITSELF INVALIDATE THE NOTICE. THE TRIBUNAL BENCHES AT MUMBAI AND PATNA BEING SUBORDINATE TO THE HONBLE BOMBAY HIGH COURT AND P ATNA HIGH COURT ARE BOUND TO FOLLOW THE AFORESAID VIEW. THE TRIBUNAL BENCHES AT BANGALORE HAVE TO FOLLOW THE DECISION OF THE HONBLE KARNATAKA HIGH COURT. AS FAR AS BENCHES OF TRIBUNAL IN OTHER JURISDICTIONS ARE CONCERNED, THERE ARE TWO VIEWS ON THE ISSUE, ONE IN FAVOUR OF THE ASSESSEE RENDERED BY THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON & GINNING (SUPRA) AND OTHER OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF SMT. KAUSHALYA. IT IS SETTLED LEGAL POSITION THAT WHERE VAILABLE ON AN ISSUE, THE VIEW FAVOURABLE TO THE ASSESSEE HAS TO BE FOLLOWED. WE, THEREFORE, PREFER TO FOLLOW THE VIEW EXPRESSED BY THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON & GINNING (SUPRA). WE HAVE ALREADY OBSERVED 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 DO ES 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 EARLIER PART OF THIS ORDER ACCEPTED. WE, THEREFORE, HOLD THAT IMPOSITION OF PENALTY IN THE PRESENT CASE CANNOT BE SUSTAINED AND THE SAME IS DIRECTED TO BE CANCELLED. IN OUR OPINION, THE DECISION RENDERED BY THE COORDINATE BENCH IN THE CASE OF (SUPRA) IS SQUARELY APPLICABLE IN THE PRESENT CASE AND DR HAS NOT DISPUTED THIS ASPECT OF THE MATTER . WE, THEREFORE, THE SAID DECISION OF THE COORDINATE BENCH PENALTY IMPOSED BY THE ASSESSING OFFICER U NDER SECTION 271(1)(C) AND CONFIRMED BY THE LD. CIT(A). I.T.A. NO. 2180/KOL/2019 ASSESSMENT YEAR: 2014-15 SHILPA BIHARI ATE PARTICULARS OF SUCH INCOME WAS NOT CLEAR. IN RELIED UPON THE JEETMAL CHORARIA VS ACIT RENDERED WHEREIN A SIMILAR DECIDED BY THE TRIBUNAL AFTER TAKING INTO CONSIDERATION, THE RELEVANT DECISION OF THE DIFFERENT HIGH COURTS VIDE PARAGRAPH NO. 14 AND 15 OF ITS ORDER N IT CAN BE SEEN THAT THE LINE OF REASONING OF THE HONBLE BOMBAY HIGH COURT AND THE HONBLE PATNA HIGH COURT IS THAT ISSUANCE OF NOTICE IS AN ADMINISTRATIVE DEVICE FOR INFORMING THE ASSESSEE ABOUT THE PROPOSAL TO LAIN AS TO WHY IT SHOULD NOT BE DONE. STRIKING OF THE INACCURATE PORTION CANNOT BY ITSELF INVALIDATE THE NOTICE. THE TRIBUNAL BENCHES AT MUMBAI AND PATNA ATNA HIGH COURT ARE BOUND TO FOLLOW THE AFORESAID VIEW. THE TRIBUNAL BENCHES AT BANGALORE HAVE TO FOLLOW THE DECISION OF THE HONBLE KARNATAKA HIGH COURT. AS FAR AS BENCHES OF TRIBUNAL IN OTHER JURISDICTIONS ARE CONCERNED, THERE ARE TWO VIEWS ON THE ISSUE, ONE IN FAVOUR OF THE ASSESSEE RENDERED BY THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON & GINNING (SUPRA) AND OTHER OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF SMT. KAUSHALYA. IT IS SETTLED LEGAL POSITION THAT WHERE VAILABLE ON AN ISSUE, THE VIEW FAVOURABLE TO THE ASSESSEE HAS TO BE FOLLOWED. WE, THEREFORE, PREFER TO FOLLOW THE VIEW EXPRESSED BY THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON & GINNING (SUPRA). 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 ES 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 EARLIER PART OF THIS ORDER HAS TO BE ACCEPTED. WE, THEREFORE, HOLD THAT IMPOSITION OF PENALTY IN THE PRESENT CASE CANNOT IN OUR OPINION, THE DECISION RENDERED BY THE COORDINATE BENCH IN THE CASE OF IS SQUARELY APPLICABLE IN THE PRESENT CASE AND . WE, THEREFORE, THE SAID DECISION OF THE COORDINATE BENCH QUASH THE NDER SECTION 271(1)(C) OF THE 5. IN THE RESULT, APPEAL OF THE ASSESSEE KOLKATA, THE SD/- [P.M. JAGTAP] VICE PRESIDENT DATED : 25.10.2019 {SC SPS} C OPY OF THE ORDER FORWARDED TO: 1. SHILPA BIHARI C/O S.N. GHOSH & ASSOCIATES, ADVOCATES SEBEN BROTHERS LODGE P.O. BUROSHIBTALA P.S. CHINSURAH DIST. HOOGHLY WEST BENGAL 712 105 2. INCOME TAX OFFICER, WARD- 23(2), HOOGHLY 4. CIT(A)- 5. CIT- , 6 . CIT(DR), KOLKATA BENCHES, KOLKATA. 3 IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. KOLKATA, THE 25 TH DAY OF OCTOBER, 2019. [ ABY T. VARKEY] JUDICIAL MEMBER OPY OF THE ORDER FORWARDED TO: C/O S.N. GHOSH & ASSOCIATES, ADVOCATES 23(2), HOOGHLY . CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES I.T.A. NO. 2180/KOL/2019 ASSESSMENT YEAR: 2014-15 SHILPA BIHARI SD/- ABY T. VARKEY] JUDICIAL MEMBER TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES