Mr Amar Roy, Kolkata V. Income Tax Officer, Ward - 34(2), Kolkata, Kolkata

ITA 2531/KOL/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1790 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 5 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2017
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 01-11-2016
• Assessment Year: 2001-2002
• Appeal Filed On: 04-11-2013
• Court: TRIBUNAL
• Department Lawyers: DEBASISH BANERJEE
• Section: 142(1); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : KOLKATA [BEFORE HONBLE SRI N.V.VASUDEVAN, JM & SHRI WASE EM AHMED, AM] I.T.A NOS. 2531 TO 25 36/KOL/2013 ASSESSMENT YEARS : 2001- 02 TO 2006-07 MR. AMAR ROY -VS.- I.T.O., WARD-34(2) KOLKATA KOLKATA [PAN : ACWPR 1248 K] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI RAVI TU LSIYAN, FCA FOR THE RESPONDENT : SHRI DEBASISH BANERJEE, JCIT, SR.DR DATE OF HEARING : 20.04.2017. DATE OF PRONOUNCEMENT : 03.05.2017. ORDER PER BENCH THESE ARE APPEALS BY THE ASSESSEE AGAINST SIX ORDER S ALL DATED 17.07.2013 OF C.I.T (A)-XX, KOLKATA RELATING TO A.Y.2001-02 TO 20 06-07. 2. IN ALL THESE APPEALS THE ASSESSEE HAS CHALLENGE D THE ORDER OF CIT(A) WHEREBY THE CIT(A) CONFIRMED THE ORDER OF AO IMPOSING PENALTY O N THE ASSESSEE U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (ACT). 3. THE FACTS AND CIRCUMSTANCES UNDER WHICH PENALTY U/S 271(1)(C) OF THE ACT WAS LEVIED ON THE ASSESSEE BY THE AO ARE AS FOLLOWS :- THE ASSESSEE BEING A DEALER AND DISTRIBUTOR OF TUBE WELL AND ALLIED SPARE PARTS RUNS BUSINESS UNDER THE NAME AND STYLE OF M/S. ROY ENTER PRISE. THE ORIGINAL RETURN OF INCOME FOR THE ASSESSMENT YEARS 2001-02 TO 2006-07 WERE FILED AS UNDER: 2001-02: ORIGINAL RETURN FILED ON 16/07/2001 SHOWIN G TOTAL INCOME OF RS.L,33,589/-. 2002-03: ORIGINAL RETURN FILED ON 29/07/2002 SHOWIN G TOTAL INCOME OF RS.L,47,832/-. 2003-04: ORIGINAL RETURN FILED ON 16/07/2003 SHOWIN G TOTAL INCOME OF RS.95,544/-. 2004-05: ORIGINAL RETURN FILED ON 16/07/2004 SHOWIN G TOTAL INCOME OF RS.L,38,607/-. 2005-06: ORIGINAL RETURN FILED ON 27/07 1200S SHOWI NG TOTAL INCOME OF RS.L,08,295/-. 2006-07: ORIGINAL RETURN FILED ON 14110/2006 SHOWIN G TOTAL INCOME OF RS.L,41,335/-. 2 ITA NO2531 TO 2536/KOL/2013 MR.AMAR ROY A.YR.2001-02 TO 2006-07 2 INITIALLY, THE RETURNS FOR THE AFORESAID ASSESSMEN T YEARS WERE PROCESSED U/S.L43(1) OF THE ACT AT THE FIGURE OF RETURNED INCOME. 4. SUBSEQUENTLY, BASED ON SOME INFORMATION RECEIV ED FROM THE ADIT(INV), UNIT (1), KOL, WHEREIN, IN COURSE OF VERIFICATION IT WAS REVE ALED FROM STATEMENT RECORDED U/S.131 OF THE ACT ON 02/07/2007 THAT THE ASSESSEE HAS ADMI TTED THAT INCOME FROM INHERITED INVESTMENTS AFTER THE DEATH OF HIS FATHER WHICH WER E LATER ON REINVESTED IN UNITS OF MUTUAL FUND WERE NOT INCLUDED IN THE RETURN OF INCO ME FOR THE ABOVE-MENTIONED ASSESSMENT YEARS, PROCEEDING U/S.147 WAS INITIATED ON 31103/2008 WITH THE PRIOR APPROVAL OF THE ADDL.CIT R-34, KOL AND NOTICES U/S. 148 OF THE ACT FOR THE A.Y'S 2001- 02 TO 2006-07 WERE SERVED UPON THE ASSESSEE WITHIN THE STIPULATED PERIOD. IN RESPONSE TO NOTICES ISSUED U/S.148 OF THE ACT, THE ASSESSEE FIL ED RETURNS ON THE FOLLOWING DATES FOR THE ABOVE-MENTIONED ASSESSMENT YEARS: 2001-02: RETURN FILED ON 11/11/2009 SHOWING INCOME OF RS.L,56,516/- . 2002-03: RETURN FILED ON 11/11/2009 SHOWING INCOME OF RS.2,99,394/-. 2003-04: RETURN FILED ON 11/11/2009 SHOWING INCOME OF RS.2,55,040/-. 2004-05: RETURN FILED ON 11/11/2009 SHOWING INCOME OF RS.2,17,163/-. 2005-06: RETURN FILED ON 11/11/2009 SHOWING INCOME OF RS.2,04,430/-. 2006-07: RETURN FILED ON 11/11/2009 SHOWING INCOME OF RS.2,96,659/-. 5. NOTICES U/S.143(2) & 142(1) OF THE IT ACT WERE ISSUED AND FINALLY THE ASSESSMENT U/S.143(1)/143(3)/147 OF THE ACT WERE COMPLETED ON 21/12/2009 FOR THE ASSESSMENT YEARS 2001-02 TO 2006-07 AT THE FOLLOWING FIGURES: 2001-02: (RS.1,33,589/- + RS.1,92,940) = RS.3,26,52 9/- 2002-03: (RS.1,47,832/- + RS.1,82,328) = RS.3,30,16 0/- 2003-04: (RS.95,544/- + RS.1,81,156) = RS.2,76,700/ - 2004-05: (RS.1,38,607/-+ RS.2,37,931) = RS.3,76,540 /- 2005-06: (RS.1 ,08,295/- + RS.1,89,666) = RS.2,97,9 61/- 2006-07: (RS.1,08,295/- + RS.1,89,666) = RS.2,97,96 1/- 6. IN RESPECT OF THE ADDITIONS MADE IN THE ASSESS MENT PROCEEDINGS AS ABOVE, THE AO INITIATED PENALTY PROCEEDINGS U/S.271 (1)(C ) OF T HE ACT FOR A.Y.'S 2001-02 TO 2006-07 AND IMPOSED PENALTY HOLDING THAT THE ASSESSEE HAS VIOLATED THE PROVISION OF SECTION 3 ITA NO2531 TO 2536/KOL/2013 MR.AMAR ROY A.YR.2001-02 TO 2006-07 3 271(1)(C) OF THE ACT. THE AO IMPOSED PENALTY AT 10 0% OF THE TAX SOUGHT TO BE EVADED. ON APPEAL BY THE ASSESSEE, THE CIT(A) CONFIRMED TH E ORDERS OF AO. AGGRIEVED BY THE ORDERS OF CIT(A) THE ASSESSEE HAS PREFERRED THE PRE SENT APPEALS BEFORE THE TRIBUNAL. 7. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED BEF ORE US THAT THE SHOW CAUSE NOTICES ISSUED U/S 274 OF THE ACT BEFORE IMPOSING PENALTY D O NOT CONTAIN THE SPECIFIC CHARGE AGAINST THE ASSESSEE NAMELY AS TO WHETHER THE ASSES SEE WAS GUILTY OF HAVING CONCEALED PARTICULARS OF INCOME OR HAVING FURNISHED INACCURAT E PARTICULARS OF INCOME. COPIES OF THE SHOW CAUSE NOTICES U/S 274 OF THE ACT ARE PLACE D AT PAGES-1 TO 12 OF THE ASSESSEES PAPER BOOK AND PERUSAL OF THE SAME REVEALS THAT AO HAS NOT STRUCK OUT THE IRRELEVANT PORTION IN THE SHOW CAUSE NOTICE AND THEREFORE THE SHOW CAUSE NOTICE DOES NOT SPECIFY THE CHARGE AGAINST THE ASSESSEE AS TO WHETHER THE C HARGE IS OF CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS O F INCOME. 8. THE LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTEN TION TO THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. SSAS E MERALD MEADOWS IN ITA NO.380 OF 2015 DATED 23.11.2015 WHEREIN THE HONBLE KARNAT AKA HIGH COURT FOLLOWING ITS OWN DECISION IN THE CASE OF CIT VS MANJUNATHA COTTON AN D GINNING FACTORY (2013) 359 ITR 565 TOOK A VIEW THAT IMPOSING OF PENALTY U/S 271(1) (C) OF THE ACT IS BAD IN LAW AND INVALID FOR THE REASON THAT THE SHOW CAUSE NOTICE U /S 274 OF THE ACT DOES NOT SPECIFY THE CHARGE AGAINST THE ASSESSEE AS TO WHETHER IT IS FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE LD. COUNSEL FURTHER BROUGHT TO OUR NOTICE THAT AS AGAINST THE DECISION OF THE HON BLE KARNATAKA HIGH COURT THE REVENUE PREFERRED AN APPEAL IN SLP IN CC NO.11485 OF 2016 A ND THE HONBLE SUPREME COURT BY ITS ORDER DATED 05.08.2016 DISMISSED THE SLP PREFER RED BY THE DEPARTMENT. THE LD. COUNSEL ALSO BROUGHT TO OUR NOTICE THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS SHRI SAMSON PERINCHERY IN ITA NO .1154 OF 2014 DATED 05.01.2017 WHEREIN THE HONBLE BOMBAY HIGH COURT FOLLOWING THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS MANJUNAT HA COTTON AND GINNING FACTORY (SUPRA) CAME TO THE CONCLUSION THAT IMPOSITION OF P ENALTY ON DEFECTIVE SHOW CAUSE 4 ITA NO2531 TO 2536/KOL/2013 MR.AMAR ROY A.YR.2001-02 TO 2006-07 4 NOTICE WITHOUT SPECIFYING THE CHARGE AGAINST THE AS SESSEE CANNOT BE SUSTAINED. OUR ATTENTION WAS ALSO DRAWN TO THE DECISION OF ITAT IN THE CASE OF SUVAPRASANNA BHATTACHARYA VS ACIT IN ITA NO.1303/KOL/2010 DATED 06.11.2015 WHEREIN IDENTICAL PROPOSITION HAS BEEN FOLLOWED BY THE TRIBUNAL. THE LD. DR RELIED ON THE ORDER OF CIT(A). 9. WE HAVE ALREADY OBSERVED THAT THE SHOW CAUSE NOTICES ISSUED IN THE PRESENT APPEALS U/S 274 OF THE ACT DO NOT SPECIFY THE CHARGE AGAINS T THE ASSESSEE AS TO WHETHER IT IS FOR CONCEALING PARTICULARS OF INCOME OR FURNISHING INAC CURATE PARTICULARS OF INCOME. THE SHOW CAUSE NOTICE U/S 274 OF THE ACT DOES NOT STRIK E OUT THE INAPPROPRIATE WORDS. IN THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT IMPOSI TION OF PENALTY CANNOT BE SUSTAINED. THE PLEA OF THE LD. COUNSEL FOR THE ASSESSEE WHICH IS BASED ON THE DECISIONS REFERRED TO IN THE EARLIER PART OF THIS ORDER HAS TO BE ACCEPT ED. WE THEREFORE HOLD THAT IMPOSITION OF PENALTY IN THE PRESENT APPEALS CANNOT BE SUSTAINED AND THE SAME ARE DIRECTED TO BE CANCELLED. 10. IN THE RESULT THE APPEALS OF THE ASSESSEE AR E ALLOWED. ORDER PRONOUNCED IN THE COURT ON 03.05.2017. SD/- SD/- [WASEEM AHMED] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUD ICIAL MEMBER DATED : 03.05.2017. [RG PS] COPY OF THE ORDER FORWARDED TO: 1. MR. AMAR ROY, PROP.ROY ENTERPRISES, 109, N.S.ROA D, KOLKATA-700001. 2. I.T.O., WARD-34(2), KOLKATA. 3. CIT(A)- XX, KOLKATA. 4. C.I.T.-XII, KOLK ATA. 3. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSTT.REGISTRAR, ITAT, KOLKATA BENCHES 5 ITA NO2531 TO 2536/KOL/2013 MR.AMAR ROY A.YR.2001-02 TO 2006-07 5