M/s. Jyotsna, Kolkata V. ACIT, Central Circle - XXVII, Kolkata, Kolkata

ITA 2189/KOL/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74957 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 1994-1995
• Appeal Filed On: 10-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJENDRA PRASAD SRDR
• Keywords: Question of law; Corroborative evidences

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI, P.K. BANSAL, ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER ITA NO. 2187 - 2189 / KOL / 2010 ASSESSMENT YEARS :1992-93 TO 1994-95 M/S JYOTSNA 89, N.S.ROAD (3 RD FLOOR), KOLKATA 700 001 [ PAN NO.AABFJ 8456 G ] V/S . ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-XXVII, KOLKATA /APPELLANT .. / RESPONDENT /BY ASSESSEE SHRI SUBASH AGARWAL, AR /BY REVENUE SHRI RAJENDRA PRASAD, SR-DR /DATE OF HEARING 07-01-2014 /DATE OF PRONOUNCEMENT 08-01-2014 / // / O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER:- THESE THREE APPEALS ARE FILED BY THE ASSESSEE AGAI NST THE ORDERS OF COMMISSIONER OF INCOME-TAX (APPEALS)-CENTRAL-II, KO LKATA IN APPEALS NO.80- 82/CC-XXVII/CIT(A)C-II/KOL./07-08 DATED 30-09-2010 FOR THE ASSESSMENT YEARS 1992-93, 1993-94 AND 1994-95 RESPECTIVELY AG AINST THE CONFIRMATION OF THE LEVY OF PENALTY U/S.271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). SHRI SUBASH AGARWAL, ADV OCATE REPRESENTED ON BEHALF OF ASSESSEE AND SHRI RAJENDRA PRASAD, SR-DR REPRESE NTED ON BEHALF OF REVENUE. ITA NO.2187-2189/KOL/2010 A.YS. 92-03 TO 94-95 M/S JYOTSNA V. ACIT CC-XXVII KOL PAGE 2 2. AS THE ISSUE IN ALL THREE APPEALS RELATE TO THE SAME ASSESSEE AND ARE IDENTICAL, THE SAME ARE BEING DISPOSED OF BY THIS C OMMON ORDER. 3. IT WAS THE SUBMISSION BY THE LD. AR THAT IN THE COURSE OF ASSESSMENT ADDITIONS HAD BEEN MADE ON ACCOUNT OF UNEXPLAINED P AYMENT AND UNEXPLAINED RECEIPTS. IT WAS THE SUBMISSION THAT AS SESSEE HAD FILED APPEALS AGAINST THE ADDITIONS AND THE ADDITIONS HAD ALSO BE EN CONFIRMED BY THE TRIBUNAL. IT WAS THE SUBMISSION FURTHER THAT APPEAL IN THE FORM OF WRIT PETITION HAD BEEN FILED BEFORE THE HONBLE JURISDICTIONAL HI GH COURT AT CALCUTTA IN WRIT PETITION NO.1203 OF 2007 AND THE SAME WAS ADMITTED VIDE ORDER OF THE HONBLE JURISDICTIONAL HIGH COURT DATED22-11-2007. IT WAS THE SUBMISSION THAT IN VIEW OF THE DECISION OF THE HONBLE THIRD MEMBER IN THE CASE OF RUPAM MERCANTILES LTD. V. DCIT (2004) 91 ITD 237 (AHD.) (TM). ONCE THE HONBLE HIGH COURT HAS ADMITTED AN APPEAL HOLDING THAT THE ISSUES IN THIS APPEAL GIVE RISE TO SUBSTANTIAL QUESTION OF LAW THEN SUCH PLEAS MADE BY THE ASSESSEE THAT HAVE NOT BEEN ACCEPTED BY THE APPELLATE AUTHORITIES CANNOT BE TREATED AS FALSE OR MALA FIDE SO AS TO ATTRACT THE LEVY OF PENALTY U/S. 271(1) OF THE ACT. IT WAS FURTHER THE SUBMISSIONS THAT IN VIEW OF THE DECISIO N OF THE THIRD MEMBER IN THE CASE OF RUPAM MERCANTILES REFERRED TO (SUPRA) THE PENALTY AS LEVIED WAS LIABL E TO BE CANCELLED. IT WAS ALSO THE PLEA THAT IN THE C OURSE OF PENALTY PROCEEDINGS THE ASSESSEE HAD GIVEN EXPLANATION WHICH HAD NOT BE EN FOUND TO BE FALSE BUT HAD BEEN REJECTED BY SIMPLY CLAIMING THAT THE ASSES SEE HAD FAILED TO PRODUCE ANY SUPPORTING EVIDENCE IN CONNECTION WITH THE WRIT TEN SUBMISSION. IT WAS SUBMISSION THAT THE ASSESSEE HAVING GIVEN AN EXPLAN ATION AND SUCH EXPLANATION HAVING NOT BEEN FOUND TO BE FALSE OR NO T PLAUSIBLE BY THE ASSESSING OFFICER PENALTY WAS NOT LEVIABLE. IT WAS THE SUBMISSION THAT AO HAD LEVIED THE PENALTY AND THE LD. CIT(A) HAD CONFIRMED THE PENALTY ONLY ON THE GROUND THAT THE TRIBUNAL HAD CONFIRMED THE ADDITION S MADE IN THE COURSE OF ASSESSMENT. IT WAS THE SUBMISSION THAT THIS WAS NOT GROUND ENOUGH FOR THE LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT. IT WAS T HE SUBMISSION THAT THE PENALTY AS LEVIED BY THE AO AND CONFIRMED BY THE LD. CIT(A) MAY BE DELETED. ITA NO.2187-2189/KOL/2010 A.YS. 92-03 TO 94-95 M/S JYOTSNA V. ACIT CC-XXVII KOL PAGE 3 4. IN REPLY LD. SR-DR VEHEMENTLY SUPPORTED THE ORDE RS OF LD. CIT(A) AND THE AO. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSION. ON PERU SAL OF THE ORDER OF THE THIRD MEMBER IN THE CASE OF RUPAM MERCANTILES LTD. REFERRED TO (SUPRA) CLEARLY SHOW THAT ONCE THE APPEAL HAS BEEN ADMITTED BY THE HONBLE HIGH COURT THEN ON ACCOUNT OF THE FACT THAT THE ISSUE IS DEBATABLE, PENALTY IS NOT LEVIABLE. THIS HAS ALSO THE CONSISTENT STAND TAKEN BY THE TRIBUNAL IN OTHER CASE ALSO. IN THE CIRCUMSTANCES RESPECTFULLY FOLLOWING T HE DECISION OF THE HONBLE THIRD MEMBER IN THE CASE OF RUPAM MERCANTILES LTD. REFERRED TO (SUPRA) WHICH HAS THE EFFECTED OF A SPECIAL BENCH DECISION AND IS BINDING ON THE DIVISION BENCHES OF THE TRIBUNAL, THE PENALTY AS LEVIED BY T HE AO AND CONFIRMED BY LD. CIT(A) STAND DELETED. EVEN ON MERITS, ON PERUSAL OF THE PENALTY ORDER IT CLEARLY SHOWS THAT THE AO HAS NOT FOUND THE EXPLANATION GIV EN BY THE ASSESSEE TO BE FALSE OR NOT PLAUSIBLE. IN FACT, THE FACT THAT APPE AL OF THE ASSESSEE HAS BEEN ADMITTED IN WRIT PROCEEDINGS BEFORE THE HONBLE JUR ISDICTIONAL HIGH COURT CLEARLY SHOWS THAT THE EXPLANATION GIVEN BY THE ASS ESSEE IS A PLAUSIBLE EXPLANATION. IN THE CIRCUMSTANCES, EVEN ON MERITS, IN SO FAR AS THE REVENUE HAS NOT POINTED OUT ANY FALSIFIED OR THE IMPROBABIL ITY OR IMPOSSIBILITY IN THE EXPLANATION PROVIDED BY THE ASSESSEE, WE ARE OF THE VIEW THAT THE PENALTY AS CONFIRMED BY LD. CIT(A) IN THIS CASE IS NOT SUSTAIN ABLE. IN THE CIRCUMSTANCES, THE PENALTY HAS LEVIED BY THE AO AND HAS CONFIRMED BY LD. CIT STANDS DELETED. 6. IN THE RESULT, ALL THREE APPEALS OF THE ASSESSEE ST AND ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 08 /01/2014 SD/- SD/- (P.K.BANSAL) (GEORGE MATHAN) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, ITA NO.2187-2189/KOL/2010 A.YS. 92-03 TO 94-95 M/S JYOTSNA V. ACIT CC-XXVII KOL PAGE 4 *DKP #- 08/01/2014 . . . . /. /. /. /. / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. 4 / CONCERNED CIT 4. 4- / CIT (A) 5. . , , / DR, ITAT, KOLKATA 6. ; / GUARD FILE. BY ORDER/ , /TRUE COPY/ / ,