Sri Sunil Kumar Agarwal, Raichur V. Income-Tax Officer, Raichur

ITA 2197/BANG/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 4582 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 13-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PADMA MEENAKSHI
• Assessee Lawyers: RAVISHANKAR S V

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, JUDICIAL MEMBER AND SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO. 2197 / BANG/201 6 ASSESSMENT YEAR : 20 1 2 - 1 3 SHRI SUNIL KUMAR AGARWAL, H.NO. 1-8-131, OPP. UMA HOTEL, STATION ROAD, RAICHUR 584 101. PAN: AEOPA6856J VS. THE INCOME TAX OFFICER, WARD 1, RAICHUR. APPELLANT RESPONDENT APPELLANT BY : SHRI RAVISHANKAR .S.V., ADVOCATE RESPONDENT BY : SMT. PADMA MEENAKSHI, JCIT (DR) DATE OF HEARING : 0 7 .0 6 .2018 DATE OF PRONOUNCEMENT : 15 .0 6 .2018 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE ASSESSEE AND THE SAME I S DIRECTED AGAINST THE ORDER OF LD. CIT (A) GULBARGA, DATED 18.10.2016 FOR ASS ESSMENT YEAR 2012-13. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE ORDERS OF THE AUTHORITIES BELOW IN SO FAR AS THEY ARE AGAINST THE APPELLANT, ARE OPPOSED TO LAW, EQUITY, WEIGHT O F EVIDENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. GROUND NOT BEFORE CIT[A] - ADMISSION FILED SEPARATELY 2. WITHOUT PREJUDICE TO THE ABOVE THE ORDER OF PENA LTY PASSED U/S 271[1][C] OF THE ACT IS BAD IN LAW AS FROM THE NOTICE ISSUED UNDER SECTION 274 RWS 271 OF THE ACT, IT IS NOT DISCERNABLE AS TO WHETHER THE PENALTY PROCEEDINGS A RE INITIATED EITHER FOR FURNISHING OF INACCURATE PARTI CULARS OF INCOME OR CONCEALMENT OF INCOME, WHICH ARE TWO DIFF ERENT AND DISTINCT ACTIONABLE DEFAULTS [CIT V. HARSHA N. BILIANGADY REPORTED IN 379 ITR 529 (KAR)] WARRANTING LEVY OF PENALTY EVEN ON MERITS, IF IT WERE TO BE SU STAINED ITA NO. 2197/BANG/2016 PAGE 2 OF 4 WHICH WAS NOT SPELT OUT BY THE LEARNED A.O. IN THE ORDER AS WELL AS THE NOTICE AND THEREFORE, HAVING REGARD TO THE RATIO OF THE DECISIONS OF THE HON'BLE KARNATAKA HIGH COURT I N THE CASE OF MANJUNATHA COTTON AND GINNING FACTORY REPORTED IN 359 ITR 565 HON'BLE ITAT IN THE CASE OF SMT. MADHU SOLANKI IN ITA NO.828/BANG/2011 DATED 20/09/2013 AND SRINIDHI GOLD IN ITA NO.493/BANG/2013 DATED 19/12/2014, IN THE ABSENCE OF THE SATISFACTION RECORDED, THE IMPUGNED ORDER PASSED DE SERVES TO BE CANCELLED. 3. THE AUTHORITIES BELOW FAILED TO APPRECIATE THAT THE APPELLANT HAS NEITHER CONCEALED ANY INCOME NOR FURNISHED INACCURA TE PARTICULARS OF INCOME TO WARRANT LEVY OF PENALTY AND THEREFORE, TH E PENALTY LEVIED U/S.271[1][C] OF THE ACT REQUIRES TO BE CANCELLED. 4. WITHOUT PREJUDICE TO THE ABOVE, THE PENALTY LEVI ED IS HIGHLY EXCESSIVE AND LIABLE TO BE REDUCED SUBSTANTIALLY. 5. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGE D AT THE TIME OF HEARING OF THE APPEAL, YOUR APPELLANT HUMBL Y PRAYS THAT THE APPEAL MAY BE ALLOWED AND JUSTICE RENDERED AND THE APPELLANT MAY BE AWARDED COSTS IN PROSECUTING THE A PPEAL AND ALSO ORDER FOR THE REFUND OF THE INSTITUTION FEES A SPART OF THE COSTS . 3. THE ASSESSEE HAS ALSO RAISED ADDITIONAL GROUNDS WHICH ARE AS UNDER. 1. WITHOUT PREJUDICE TO THE ABOVE THE ORDER OF PENA LTY PASSED U/S 271[1][C] OF THE ACT IS BAD IN LAW AS FROM THE NOTI CE ISSUED UNDER SECTION 274 RWS 271 OF THE ACT, IT IS NOT DISCERNAB LE AS TO WHETHER THE PENALTY PROCEEDINGS ARE INITIATED EITHER FOR FURNIS HING OF INACCURATE PARTICULARS OF INCOME OR CONCEALMENT OF INCOME, WHI CH ARE TWO DIFFERENT AND DISTINCT ACTIONABLE DEFAULTS [CIT V. HARSHA N. BILIANGADY REPORTED IN 379 ITR 529 (KAR)] WARRANTIN G LEVY OF PENALTY EVEN ON MERITS, IF IT WERE TO BE SUSTAINED WHICH WAS NOT SPELT OUT BY THE LEARNED A.O. IN THE ORDER AS WELL AS THE NOTICE AND THEREFORE, HAVING REGARD TO THE RATIO OF THE DECISI ONS OF THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTT ON AND GINNING FACTORY REPORTED IN 359 ITR 565 HON'BLE ITA T IN THE CASE OF SMT. MADHU SOLANKI IN ITA NO.828/BANG/2011 DATED 20/09/2013 AND SRINIDHI GOLD IN ITA NO.493/BANG/201 3 DATED 19/12/2014, IN THE ABSENCE OF THE SATISFACTION RECO RDED, THE IMPUGNED ORDER PASSED DESERVES TO BE CANCELLED. 2. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGE D AT THE TIME OF HEARING OF THE APPEAL, YOUR APPELLANT HUMBLY PRAYS THAT THE APPEAL MAY BE ALLOWED AND JUSTICE RENDERED. ITA NO. 2197/BANG/2016 PAGE 3 OF 4 4. IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT THE NOTICE ISSUED BY THE AO U/S. 274 R.W.S. 271 OF IT ACT IS AVAILABLE ON PAGE NO. 1 OF THE PAPER BOOK AND FROM THE SAME, IT CAN BE SEEN THAT THE AO HAS NOT MADE I T CLEAR AS TO WHETHER THE ASSESSEE IS GUILTY OF CONCEALMENT OF INCOME OR OF F URNISHING INACCURATE PARTICULARS OF INCOME. THEREAFTER, HE SUBMITTED A COPY AND PLACED RELIANCE ON TRIBUNAL ORDER RENDERED IN THE CASE OF SHRI ARUN KU MAR VS. ACIT IN ITA NO. 117/BANG/2016 DATED 16.12.2016 AND POINTED OUT THAT IN THIS TRIBUNAL ORDER, THE TRIBUNAL HAS FOLLOWED THE JUDGMENT OF HON'BLE K ARNATAKA HIGH COURT RENDERED IN THE CASE OF CIT VS. MANJUNATHA COTTON A ND GINNING FACTORY AS REPORTED IN (2013) 359 ITR 565 AND IT WAS HELD THAT THE PENALTY ORDER IS INVALID AND CONSEQUENTLY THE PENALTY WAS DELETED. HE SUBMI TTED THAT IN THE PRESENT CASE ALSO, THE ISSUE SHOULD BE DECIDED IN FAVOUR OF THE ASSESSEE ON SIMILAR LINE. THE LD. DR OF REVENUE SUPPORTED THE ORDERS OF AUTHO RITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND SIN CE IN THE PRESENT CASE, THE AO HAS NOT MADE IT CLEAR IN THE NOTICE ISSUED BY HI M U/S. 274 R.W.S. 271 OF IT ACT AS TO WHETHER THE ASSESSEE IS GUILTY OF CONCEAL MENT OF INCOME OR OF FURNISHING INACCURATE PARTICULARS OF INCOME, THE TR IBUNAL ORDER CITED BY LD. AR OF ASSESSEE RENDERED IN THE CASE OF SHRI ARUN KUMAR VS . ACIT (SUPRA) AND IN TURN THE JUDGMENT OF HON'BLE KARNATAKA HIGH COURT RENDER ED IN THE CASE OF CIT VS. MANJUNATHA COTTON AND GINNING FACTORY (SUPRA) ARE S QUARELY APPLICABLE AND RESPECTFULLY FOLLOWING THESE JUDGEMENTS, WE HOLD TH AT IN THE PRESENT CASE ALSO, THE PENALTY ORDER PASSED BY AO IS INVALID AND AS A CONSEQUENCE, THE PENALTY IMPOSED BY AO STANDS DELETED. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- SD/- (N.V. VASUDEVAN) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 15 TH JUNE, 2018. /MS/ ITA NO. 2197/BANG/2016 PAGE 4 OF 4 COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.