Dum Dum Construction Pvt. Ltd., Kolkata V. ITO, WD-12(2), KOLKATA, Kolkata

ITA 251/KOL/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4079 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 05-09-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 16-03-2015
• Court: TRIBUNAL
• Department Lawyers: MD GYASUDDIN
• Assessee Lawyers: I BAN ERJEE
• Keywords: Unexplained cash credit

Judgement Text

I.T.A. NO. 251/KOL./2015 ASSESSMENT YEAR: 2008-2009 PAGE 1 OF 2 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA SMC BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER I.T.A. NO. 251/KOL/ 2015 ASSESSMENT YEAR: 2008-2009 DUM DUM CONSTRUCTION PVT. LIMITED,................. .........................APPELLANT 258, M.C. GARDEN ROAD, BLOCK B, 3 RD FLOOR, MADHUBANI APARTMENT, KOLKATA-700 030 [PAN: AABCD 1720 G] -VS.- INCOME TAX OFFICER,................................ ........................................RESPONDENT WARD-12(2), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 APPEARANCES BY: SHRI I. BANERJEE, FCA, FOR THE ASSESSEE MD. GYASUDDIN, JCIT, D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : DECEMBER 19, 2016 DATE OF PRONOUNCING THE ORDER : DECEMBER 21, 2016 O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-XII, KOLKATA D ATED 31.10.2014, WHEREBY HE CONFIRMED THE PENALTY OF RS.17,75,514/- IMPOSED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) OF THE AC T. 2. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERV ED THAT THE IMPUGNED PENALTY UNDER SECTION 271(1)(C) WAS IMPOSED BY THE ASSESSING OFFICER IN RESPECT OF ADDITION OF RS.57,46,000/- MADE TO THE T OTAL INCOME OF THE ASSESSEE ON ACCOUNT OF ADVANCES RECEIVED FROM CUSTO MERS BY TREATING THE SAME AS UNEXPLAINED CASH CREDITS. AS SUBMITTED BY T HE LD. COUNSEL FOR THE ASSESSEE, THE SAID ADDITION WAS DISPUTED BY THE ASS ESSEE IN THE QUANTUM PROCEEDINGS AND VIDE ITS ORDER DATED MARCH 2, 2015 PASSED IN ITA NO. I.T.A. NO. 251/KOL./2015 ASSESSMENT YEAR: 2008-2009 PAGE 2 OF 2 406/KOL2012, THE TRIBUNAL HAS RESTORED THE ISSUE RE LATING TO THE SAID ADDITION TO THE FILE OF THE ASSESSING OFFICER FOR D ECIDING THE SAME AFRESH AFTER PROVIDING PROPER AND SUFFICIENT OPPORTUNITY T O THE ASSESSEE OF BEING HEARD. THE VERY BASIS OF THE IMPOSITION OF THE IMPU GNED PENALTY THUS NO MORE SURVIVES AND THE IMPUGNED ORDER OF THE LD. CIT (APPEALS) CONFIRMING THE PENALTY IMPOSED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) IS LIABLE TO BE SET ASIDE AS RIGHTLY CONTENDED BY THE LD. COUNSEL FOR THE ASSESSEE. WE, ACCORDINGLY, SET ASIDE THE IMPUGNED O RDER OF THE LD. CIT(APPEALS) CONFIRMING THE PENALTY IMPOSED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) WITH A LIBERTY TO THE ASSES SING OFFICER TO INITIATE THE PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) AFR ESH DEPENDING ON THE OUTCOME OF THE SET ASIDE PROCEEDINGS IN ACCORDANCE WITH LAW. 3. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON DECEMBER 21, 2016. SD/- (P.M. JAGTAP) ACCOUNTANT MEMBER KOLKATA, THE 21 ST DAY OF DECEMBER, 2016 COPIES TO : (1) DUM DUM CONSTRUCTION PVT. LIMITED, 258, M.C. GARDEN ROAD, BLOCK B, 3 RD FLOOR, MADHUBANI APARTMENT, KOLKATA-700 030 (2) INCOME TAX OFFICER, WARD-12(2), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 (3) COMMISSIONER OF INCOME TAX(APPEALS)-XII, KOLKA TA; (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.