Srichand G. Galani, Pune V. Deputy Commissioner of Income-tax, Circle - 6, Pune

ITA 2309/PUN/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4764 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 4 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 03-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJENDRA B DOND
• Assessee Lawyers: V L JAIN
• Section: 271(1)(c); 274; 113; 73; 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER I.T.A. NO. 2309 /PUN/2017 ASSESSMENT YEAR : 200 8 - 0 9 SHRI SRICHAND G. GALANI E WING, KK MARKET, PUNE SA TARA ROAD, NEAR SHANKAR MAHARAJ MATH, PUNE - 411 043. ABJPG 4152 H APPELLANT VS. THE DY. COMMISSIONER OF INCOME TAX , CIRCLE 6, PUNE RESPONDENT APPELLANT BY : SHRI V.L. JAIN RESPONDENT BY : SHRI RAJENDRA B. DOND DATE OF HEARING : 1 8 - 02 - 2020 DATE OF PRONOUNCEMENT: 20 - 02 - 2020 ORDER PER GEORGE MATHAN, JUDICIAL MEMBER: TH IS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST ORDER OF THE LEARNED CIT(A) 4, PUNE IN APPEAL NO. PN/CIT(A) - 5/DY.CIT CIR.6 , PUNE/ 138 /201 6 - 17/305 FOR A.Y. 200 8 - 09 DATED 19 - 5 - 2017 CONFIRMING THE LEVY OF PENALTY U/S 271(1)(C) OF THE INCOME - TAX ACT, 1961 (HEREINAFTER REFERRED TO THE ACT). 2. SHRI V.L. JAIN IS REPRESENTED FOR THE ASSESSEE AND SHRI RAJENDRA B. DOND IS REPRESENTED FOR THE REVENUE. ITA NO. 2309 /PUN/2017 SRICHAND G. GALANI A.Y. 2008 - 09 2 3. IT WAS SUBMITTED BY THE LEARNED A.R. THAT IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE A.O HAS INITIATE D PENALTY PROCEEDINGS IN PARA 3. 7 OF HIS ORDER HOLDING THAT THE ASSESSEE HAS FILED INACCURATE PARTICULARS OF HIS INCOME. IT WAS HIS SUBMISSION THAT IN THE SHO W CAUSE NOTICE U/S 274 READ WITH SEC. 271(1)(C) OF THE ACT, DATED 22 - 12 - 2010, THE A.O HAS NOT CANCELLED OR CUT - OFF EITHER OF THE PROCESS FOR CONCEALMENT OR FOR FURNISHING INACCURATE PARTICULARS OF INCOME. IT WAS HIS FURTHER SUBMISSION THAT THE LEARNED A.O IN PARA 8 OF HIS ORDER HOLDS THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS AND CONCEALED HIS INCOME. IT WAS HIS SUBMISSION THAT THE A.O HAS NOT BROUGHT OUT FOR WHAT PURPOSES, PENALTY IS BEING INITIATED AND CONSEQUENTLY THE PENALTY IS NOT LEVIABL E IN VIEW OF THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. SSAS EMARALD MEADOW REPORTED AT (2016) 73 TAXMANN.COM 248 (SC), AS ALSO THE DECISION OF HONBLE HIGH COURT OF BOMBAY IN THE CASE OF PRINCIPAL C.I.T. (CENTRAL) BANGALURU VS. GOA COASTAL RESORTS AND RECREATION (P) LTD. REPORTED AT (2020) 113 TAXMANN.COM 574 (BOMBAY) AS ALSO THE DECISION OF CO - ORDINATE BENCH OF THIS TRIBUNAL IN ITA NO. 1718/PUN/2017 AND OTHERS DATED 19 - 07 - 2019 . 4. IN REPLY, THE LEARNED D.R HAS VEHEMENTLY SUPPORTED ORDER OF THE A.O AND THE CIT(A). IT WAS HIS SUBMISSION THAT THE PENALTY AS CONFIRMED BY THE LEARNED CIT(A) WAS LIABLE TO BE CONFIRMED. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. A PERUSAL OF THE ASSESSMENT ORDER CLEARLY SHOWS THAT THE A.O HAS INITIATED THE PENALTY PROCEEDINGS FOR FURNISHING OF INACCURATE PARTICULARS. HOWEVER, THE PENALTY HAS BEEN LEVIED FOR CONCEALMENT OF INCOME. THUS, THE A.O HAS INITIATED PENALTY FOR ONE REASON BUT HAS LEVIED THE PENALTY FOR ANOTHER. SUCH PENALTY CANNOT BE CONFIRMED IN VIEW OF THE HONBLE SUPREME COURT JUDGMENT IN ITA NO. 2309 /PUN/2017 SRICHAND G. GALANI A.Y. 2008 - 09 3 THE CASE OF SSAS EMERALD MEADOWS (SUPRA) AS ALSO THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF GOA COASTAL RESORTS AND RECREATION (P) LTD (SUPRA). THIS BE ING SO, RESPECTFULLY FOLLOWING THE PRINCIPLES LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF SSAS EMERALD MEADOWS (SUPRA), AS ALSO THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF GOA COASTAL RESORTS AND RECREATION (P) LTD (SUPRA) AND A LSO DECISION OF THE CO - ORDINATE BENCH OF THIS TRIBUNAL CITED SUPRA, THE PENALTY LEVIED BY THE A.O AND CONFIRMED BY THE LEARNED CIT(A) STANDS DELETED. 6 . IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THIS 20 TH DAY OF FEBRUARY 20 20 . SD/ - SD/ - ( ANIL CHATURVEDI) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE ; DATED : 20 TH FEBRUARY 2020 . ANKAM COPY OF THE ORDER IS FORWARDED TO : 1. A SSESSEE 2. RESPONDENT 3. THE PR. CCIT PUNE 4. THE PR. CIT 3 PUNE 5. THE ADDL. CIT RANGE 6 , PUNE 6. THE ASSESSING OFFICER 7. THE D.R. ITAT PUNE BENCH B 8. GUARD FILE TRUE COPY BY ORDER SR. PRIVATE SECRETARY ITAT PUNE BENCH, PUNE ITA NO. 2309 /PUN/2017 SRICHAND G. GALANI A.Y. 2008 - 09 4 1 DRAFT DICTATED ON 1 8 . 02 .20 20 SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR 1 8 . 02 .20 20 SR. PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 5 APPROVED DRAFT COMES TO THE SR. PS/PS 20 - 02 - 20 20 SR. PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR. PS/PS 7 DATE OF UPLOADING OF ORDER SR. PS/PS 8 FILE SENT TO BENCH CLERK SR. PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER