Binod Kumar Agarwal., Uttar Dinajpur V. J.C.I.T Range - 2,Jalpaiguri, Jalpaiguri

ITA 237/KOL/2013

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3201 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-02-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 02-02-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 04-02-2013
• Court: TRIBUNAL
• Department Lawyers: G MALLIKAR JUN CITLD
• Assessee Lawyers: RAJEEV KUMAR FCA LD
• Section: 143(3)

Judgement Text

ITA NOS. 237 & 238/KOL/2013-C-AM BINOD KUMAR AGARWAL 1 IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, KOLKATA BEFORE : SHRI MAHAVIR SINGH, JUDICIAL MEMBER, AND SHRI M. BALAGANESH, ACCOUNTANT MEMBER I.T.A NO. 237 & 238/KOL/2013 A.Y 2008-09 BINOD KUMAR AGARWAL VS. J.C.I.T, RANGE-2, JAL PAIGURI PAN: ACYPA 6908P (APPELLANT) (RE SPONDENT) FOR THE APPELLANT: SHRI RAJEEV KUMAR, FCA, LD.AR FOR THE RESPONDENT : SHRI G. MA LLIKARJUN, CIT, LD.DR DATE OF HEARING: 04-02-2016 DATE OF PRONOUNCEMENT: 04 -02-20 16 ORDER SHRI M.BALAGANESH, AM THESE APPEALS OF THE ASSESSEE ARISE OUT OF THE ORDE RS OF THE LEARNED CIT(A), JALPAIGURI IN APPEAL NOS. 26 & 27/JAL/CIT(A)/JAL/11 -12 DATED 06-11-2012 & 12- 11-2012 FOR THE ASST YEAR 2008-09 AGAINST THE SE PARATE ORDERS OF PENALTY LEVIED BY THE LEARNED JCIT/ LEARNED AO U/S. 271D & U/S 271E OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) RESPECTIVELY . 2. THE ONLY ISSUE TO BE DECIDED IN THESE TWO A PPEALS OF THE ASSESSEE IS AS TO WHETHER THE PENALTY U/S. 271D AND 271E OF THE ACT COULD B E LEVIED IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE BRIEF FACTS OF THIS ISSUE ARE THAT THE ASSES SEE IS A DISTRIBUTOR OF GOODS LIKE BPL RICE, WHEAT, KEROSENE OIL ETC. AND SUPPLIES THE SAME TO ITS VARIOUS DEALERS IN AND ITA NOS. 237 & 238/KOL/2013-C-AM BINOD KUMAR AGARWAL 2 AROUND THE LOCALITY ALLOTTED TO THE ASSESSEE. THE ASSESSEE HAD RECEIVED ADVANCES RECEIVED FROM 11 PARTIES IN CASH. AGAINST THESE AD VANCES, THE ASSESSEE HAD ACTUALLY SUPPLIED THE GOODS TO THOSE PARTIES. THE ASSESSEE COLLECTED ADVANCES FROM VARIOUS DEALERS IN CASH, WHICH ARE TO BE ADJUSTED AGAINST THE SUPPLY OF GOODS. THE ASSESSMENT WAS COMPLETED U/S. 143(3) OF THE ACT ON 10/12/2010 ACCEPTING THE RETURNED INCOME. IN THE ASSESSMENT NO ADVERSE COMMENTS WERE RECORDED BY THE LD.AO AND NOT EVEN ANY WHISPER WAS MADE WITH REGARD TO ADVANCES RECEIVED IN CASH BY THE ASSESSEE FROM VARIOUS DEALERS AND REPAYMENT MADE THEREON IN CASH THEREBY VIOLATING THE PROVISIONS OF SECTION 269SS AND 269T OF THE ACT. THE LD.AO DI D NOT RECORD ANY SATISFACTION IN THE ASSESSMENT ORDER WITH REGARD TO VIOLATION OF P ROVISIONS OF SECTION 269SS AND 269T OF THE ACT. THE LD.AO, HOWEVER, ON COMPLETION OF AS SESSMENT PROCEEDINGS SOUGHT TO PASS ON THE INFORMATION TO THE LD.JCIT, WHO IN TURN ISSUED SHOW CAUSE NOTICES U/S. 271D AND 271E OF THE ACT FOR INITIATING THE PENALT Y PROCEEDINGS FOR VIOLATION OF PROVISIONS OF SECTION 269SS AND 269T RESPECTIVELY. THE LD. JCIT IGNORING THE SUBMISSIONS OF THE ASSESSEE PROPOSED TO LEVY THE IMPUGNED PENALTIES U/S. 271D AND 271E OF THE ACT AMOUNTING TO RS. 4,68,000/- EACH. T HIS ACTION OF THE LD. JCIT WAS UPHELD BY THE LD. CIT(A). AGGRIEVED, THE ASSESSEE I S IN APPEAL BEFORE US ON VARIOUS GROUNDS. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THOUGH THE ASSESSEE HAS RAISED SEVERAL GROU NDS IN RESPECT OF AFORESAID APPEALS, WE FIND THAT THE CENTRAL GROUND REVOLVES ONLY ON L EVY OF PENALTY U/S. 271D AND 271E OF THE ACT. WE FIND FROM THE FACTS THAT THE ASSES SEE HAS MERELY COLLECTED ADVANCES IN CASH FROM VARIOUS DEALERS FOR SUPPLY OF RICE AND W HEAT DURING THE COURSE OF BUSINESS. HENCE, IT CAN SAFELY BE CONCLUDED THAT THE SAID REC EIPTS PERTAINED THE CHARACTER OF REVENUE RECEIPTS IN THE HANDS OF THE ASSESSEE. IT IS NOT IN DISPUTE THAT THE SAID ADVANCES WERE DULY ADJUSTED BY SUPPLY OF GOODS BY T HE ASSESSEE BEFORE THE END OF PREVIOUS YEAR. IN THESE CIRCUMSTANCES, WE HOLD THAT THE ADVANCE RECEIPT ON SALE OF ITA NOS. 237 & 238/KOL/2013-C-AM BINOD KUMAR AGARWAL 3 GOODS FROM DEALERS AS DEPOSIT AND INVOKING THE PRO VISIONS OF SECTION 269SS AND 269T IS NOT WARRANTED. 5. WE ALSO FIND THAT THE LD.AO HAS NOT RECORDED ANY SATISFACTION IN THE ASSESSMENT ORDER FOR VIOLATION OF PROVISIONS OF SECTION 269SS AND 269T OF THE ACT, WHICH IS SINE QUA NON BEFORE THE LD. JCIT PROCEEDED TO INITIATE P ENALTY PROCEEDINGS U/S. 271D AND 271E OF THE ACT. IN SUPPORT OF OUR SUBMISSION WE RE LY ON THE RECENT DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. JAI LA XMI RICE MILLS AMBALA CITY REPORTED IN (2015) 379 ITR 521(SC)/64 TAXMANN.COM 75(SC), WHEREIN IT HAS BEEN HELD AS UNDER:- 4. THE TRIBUNAL AS WELL AS THE HIGH COURT HAS HELD THAT IT COULD NOT BE SO FOR THE SIMPLE REASON THAT WHEN THE ORIGI NAL ASSESSMENT ORDER ITSELF WAS SET ASIDE, THE SATISFACTION RECORD ED THEREIN FOR THE PURPOSE OF INITIATION OF THE PENALTY PROCEEDING UND ER SECTION 271E WOULD ALSO NOT SURVIVE. THIS ACCORDING TO US IS THE CORRECT PROPOSITION OF LAW STATED BY THE HIGH COURT IN THE IMPUGNED ORDER IS CONCERNED, THERE WAS NO SATISFACTION RECORDED REGAR DING PENALTY PROCEEDING UNDER SECTION 271E OF THE ACT, THOUGH IN THAT ORDER THE ASSESSING OFFICER WANTED PENALTY PROCEEDING TO BE I NITIATED UNDER SECTION 271( 1) ( C ) OF THE ACT. THUS, INSOFAR AS PENALTY UNDER SECTION 271E IS CONCERNED, IT WAS WITHOUT ANY SATIS FACTION AND, THEREFORE, NO SUCH PENALTY COULD BE LEVIED. THESE A PPEALS ARE, ACCORDINGLY, DISMISSED. IN VIEW OF AFORESAID FACTS AND FINDINGS GIVEN THERE ON AND RESPECTFULLY FOLLOWING THE AFORESAID DECISION OF THE HONBLE APEX COURT I N THE CASE (REFERRED TO SUPRA), WE HAVE NO HESITATION IN DIRECTING THE LD. JCIT TO DELETE THE IMPUGNED PENALTY LEVIED U/S. 271D AND 271E OF THE ACT. THE GROUNDS RAISED BY TH E ASSESSEE IN THESE APPEALS ARE ALLOWED. ITA NOS. 237 & 238/KOL/2013-C-AM BINOD KUMAR AGARWAL 4 5. IN THE RESULT, THE APPEALS OF THE ASSESSE E ARE ALLOWED AS STATED ABOVE. THIS ORDER IS PRONOUNCED IN OPEN COURT ON 04 -0 2- 2016 1.. THE APPELLANT: SHRI BINOD KUMAR AGARWAL P.O CH OPRA DIST UTTAR DINAJPUR 733216. 2 THE RESPONDENT- THE JOINT COMMISSIONER OF INCOME TAX RANGE-2 CENTRAL REVENUE BUILDING NAYA BASTI, JALPAIGURI (WB). 3 /THE CIT, 4.THE CIT(A ) 5. DR, KOLKATA BENCH 6. GUARD FILE. TRUE COPY, BY ORDER, ASSTT REGISTRAR **PRADIP SPS SD/- ( MAHAVIR SINGH, JUDICIAL MEMBER ) SD/- (M. BALAGANESH, ACCOUNTANT MEMBER) DATE: DATE 04 -02-2016 COPY OF THE ORDER FORWARDED TO:-