Appeal details
Counselvise Citation
[2010] 136 COUNSELVISE.COM (IT) 4190 (ITAT-CUTTACK)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
8 month(s) 15 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
27-07-2010
Appeal Filed By
Assessee
Bench Allotted
DB
Assessment Year
2006-2007
Appeal Filed On
11-11-2009
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE HONBLE SHRI D.K.TYAGI, JUDICIAL MEMBER. /AND HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER . / I.TA.NO . 255 AND 256 /CKT/2009 AND STAY PETITION S NO. 23 AND 24 /CTK/2009 / ASSESSMENT YEAR 2006 - 07 1. SAJAN KUMAR KEDIA, ABPPK 4824 Q 2. SMT.SAKUNTALA KEDIA , PAN ABPPK 4867 Q ADDRESS FO R BOTH ASSESSEES. KEDIA BHAWAN, AT: TIWARIGALI , P.O.KHETRAJPUR, DIST. SAMBALPUR. - - - VERSUS - . INCOME - TAX OFFICER, WARD 2(1), SAMBALPUR. / A PPELLANT RESPONDENT FOR THE APPELLANT : SHRI SASHI BHUSHAN AGARWAL, AR FOR THE RESPONDENT : SHRI S.C.MOHANTY, DR / ORDER SHRI K.K.GUPTA, ACCOUNTANT MEMBER . ISSUE AND FACTS BEING COMMON IN BOTH THESE APPEALS, ARE BEING DISPOSED OF F BY THIS COMMON ORD ER FOR THE SAKE OF CONVENIENCE AND BREVITY. 2. BOTH THE ASSESSEES HAVE DISPUTED THE LEVY OF PENALTY OF RS.10,000 EACH , U/S.271(1)(B) OF THE INCOME - TAX ACT,1961 FOR THE ASSESSMENT YEAR 2006 - 07 ON THE ALLEGATION THAT THE ASSESSEE S FAILED TO COMPLY WITH NOT ICE ISSUED U/S.142(1) ON 7.2.2008 AND U/S.274 OF THE ACT ON 25.2.2008 BOTH MADE BY WAY OF AFFIXTURE. 3 . WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW. THE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED BEFORE US THAT T HE ISSUE OF ABOVE NOTICES STATED TO BE BY WAY OF AFFIXTURE IS FALSE. NO SUCH NOTICES WERE EVER ISSUED TO THE ASSESSEE S . HE FURTHER SUBMITTED THAT THE ASSESSEE S HAD DULY FILED / I.TA.NO .255/CKT/2009 AND STAY PETITION NO.23/CTK/2009 2 THEIR RETURN S OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION ON 7.12.2006 , IN SUPPORT OF WHICH HE FURNISHED COP IES OF RECEIPT , BEFORE ISSUANCE OF THE NOTICE U/S.142(1) IN BOTH THE CASES OF THE ASSESSEES . FURTHER HE SUBMITTED THAT THE ASSESSEE S HAD FILED APPLICATION S DT.6.11.2009 (COPY FURNISHED) FOR ISSUANCE OF CERTIFIED COPY OF ORDER SHEET AND NOTICES U/S.142(1) AND 274 OF THE ACT, WHICH HAVE NOT BEEN SUPPLIED TO THEM TILL DATE. ON THE BASIS OF ABOVE, HE VEHEMENTLY ARGUED THAT SINCE THE ASSESSEE S HAD ALREADY FILED THEIR RETURN S , WHICH WERE ALREADY AVAILABLE ON RECORD PRIOR TO TH E SO CALLED ISSUE OF NOTICE U/S.142(1), THE IMPOSITION OF PENALTY U/S.271(1)(B) IS ILLEGAL AND LIABLE TO BE CANCELLED. THE LEARNED DR COULD NOT CONTROVERT THE ABOVE SUBMISSIONS OF THE LEARNED COUNSEL OF THE ASSESSEE S . THEREFORE, CONSIDERING THE FACTS AND C IRCUMSTANCES OF THE CASE, PARTICULARLY CONSIDERING THE FACT THAT THE ASSESSEE S HAD FILED THEIR RETURN S ON 7.12.2006 AS IS EVIDENT FROM THE COP IES OF THE RETURN S ITSELF, WHICH WAS PRIOR TO THE SO CALLED ISSUE OF NOTICE U/S.142(1) OF THE ACT, AND IN ABSENCE OF ANY EVIDENCE SHOWING THAT THE NOTICES IN QUESTION WERE SERVED ON THE ASSESSEES BY WAY OF AFFIXTURE, WE ARE OF THE CONSIDERED VIEW THAT THE LEVY OF PENALTY U/S.271(1)(B) IS NOT JUSTIFIED. THEREFORE, WE ALLOW THE APPEAL S BY CANCELLING THE PENALTY OF RS.10 ,000 LEVIED U/S.271(1)(B) OF THE ACT IN RESPECT OF EACH OF THE ASSESSEES . 4 . SINCE, WE HAVE ALLOWED THE APPEAL S , THE STAY PETITION S FILED BY THE ASSESSEE S TO STAY DEMAND OF RS.10,000 FOR EACH BEARING STAY PETITION S NO. 23 AND 2 4 /CTK/200 0 BECOME INFRUCTUO US AND ARE , REJECTED. 5 . IN THE RESULT, THE APPEAL S OF BOTH THE ASSESSEE S ARE ALLOWED AND THE STAY PETITION S ARE REJECTED . THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 27.07.2010 SD/ - SD/ - ( ), D.K.TYAGI JUDICIAL MEMBER (K.K.GUPTA), ACCOUNTANT MEMBER. DATE: 27.07.2010 ( /) H.K.PADHEE SENIOR.PRIVATE SECRETARY. / I.TA.NO .255/CKT/2009 AND STAY PETITION NO.23/CTK/2009 3 - COPY OF THE ORDER FORWARDED TO : / THE APPELLANT : 1. SAJAN KUMAR KEDIA, 2. SMT.SAKUNTALA KEDIA, ADDRESS FOR BOTH ASSESSEES. KEDIA BHAWAN, AT: TIWARIGALI, P.O.KHETRAJPUR, DIST. SAMBALPUR . / THE RESPONDENT : INCOME - TAX OFF ICER, WARD 2(1), SAMBALPUR. THE CIT, THE CIT(A), DR, CUTTACK BENCH GUARD FILE TRUE COPY , BY ORDER , [ ] SENIOR PRIVATE SECRETARY
Mehul