A.C.I.T., Circle-2, Asansol, Asansol V. M/s G.C.Super Cement Pvt. Ltd., Asansol

ITA 2561/KOL/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1703 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-06-2017
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 28-03-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 08-11-2013
• Court: TRIBUNAL
• Department Lawyers: SAURABH KUMAR
• Assessee Lawyers: U DASGUPTA

Judgement Text

1 ITA NO.2561/KOL/2013 & CO NO.11/KOL/2014 M/S.G. G. SUPER CEMENT PVT. LTD., AY 2008-09 , B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA () BEFORE .., /AND ... , ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] / I.T.A NO. 2561/KOL/2013 / ASSESSMENT YEAR: 2008-09 ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-2, ASANSOL VS. M/S. G. G. SUPER CEMENT PVT. LTD., (PAN: ADKPR8212J) ( /APPELLANT ) ( / RESPONDENT ) & C.O. NO.11/KOL/2014 IN / I.T.A NO. 2561/KOL/2013 / ASSESSMENT YEAR: 2008-09 M/S. G. G. SUPER CEMENT PVT. LTD., VS. ASSISTANT COMMISSIONER OF INCOME- TAX, CIRCLE-2, ASANSOL ( /APPELLANT ) /CROSS OBJECTOR ( / RESPONDENT ) DATE OF HEARING 28.03.2017 DATE OF PRONOUNCEMENT 09.06.2017 FOR THE APPELLANT/ SHRI SAURABH KUMAR, ADDL. CIT, DR FOR THE RESPONDENT/ SHRI U. DASGUPTA, ADVOCATE / ORDER PER SHRI A.T.VARKEY, JM THE APPEAL FILED BY THE REVENUE IS AGAINST THE ORDE R OF LD. CIT(A), ASANSOL DATED 02.09.2013 FOR AY 2008-09 AGAINST THE DELETION OF P ENALTY BY THE LD. CIT(A) AND THE CROSS OBJECTION FILED BY THE ASSESSEE IS IN SUPPORT OF TH E ORDER OF THE LD. CIT(A). 2. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE AS SESSEE DREW OUR ATTENTION TO THE NOTICE U/S. 274 OF THE ACT R.W.S. 271 OF THE ACT DATED 02. 06.2010 SERVED ON THE ASSESSEE WHEREIN WE 2 ITA NO.2561/KOL/2013 & CO NO.11/KOL/2014 M/S.G. G. SUPER CEMENT PVT. LTD., AY 2008-09 NOTE THAT THE AO HAS NOT STRUCK DOWN THE LIMB OF CH ARGE/DEFAULT FOR WHICH THE PENALTY IS BEING INITIATED AGAINST THE ASSESSEE. WE FIND THAT THE NOTICE HAS BEEN ISSUED FOR HAVING CONCEALED THE PARTICULARS OF INCOME OR FURNISHED IN ACCURATE PARTICULARS OF SUCH INCOME. WE NOTE THAT IN A SIMILAR CASE THE HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF CIT VS MANJUNATHA COTTON AND GINNING FACTORY REPORTED IN ( 2013) 359 ITR 565 (KAR) HAS CANCELLED THE PENALTY TAKING NOTE OF THE FACT THAT THE PENALTY NOTICE DID NOT SPELL OUT CLEARLY AS TO WHETHER THE ASSESSEE HAS CONCEALED THE PARTIC ULARS OF INCOME OR HAS FURNISHED INACCURATE PARTICULARS OF INCOME. WE ALSO FIND THAT HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. SSAS EMERALD MEADOWS, REPORTED IN (2016) 73 TAXMANN.COM 241 (KAR) ENDORSED THE SAME VIEW IN MANJUNATHA COTTON AND GIN NING FACTORY (SUPRA) AND HELD AS UNDER: 3. THE TRIBUNAL HAS ALLOWED THE APPEAL FILED BY T HE ASSESSEE HOLDING THE NOTICE ISSUED BY THE ASSESSING OFFICER UNDER SECTION 274 READ WITH S ECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT), TO BE BAD IN LAW AS IT DID NOT SPECIFY WHICH LIMB OF SECTION 271(1)(C) OF THE ACT, THE PENALTY PROCEEDINGS HAD B EEN INITIATED I.E., WHETHER FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE TRIBUNAL, WHILE ALLOWING THE APPEAL OF THE ASSESSEE , HAS RELIED ON THE DECISION OF THE DIVISION BENCH OF THIS COURT RENDERED IN THE CASE O F CIT VS. MANJUNATHA COTTON & GINNING FACTORY (2013) 359 ITR 565/218 TAXMAN 423/35 TAXMAN N.COM 250(KAR). 4. IN OUR VIEW, SINCE THE MATTER IS COVERED BY JUD GMENT OF THE DIVISION BENCH OF THIS COURT, WE ARE OF THE OPINION, NO SUBSTANTIAL QUESTION OF L AW ARISES IN THIS APPEAL FOR DETERMINATION BY THIS COURT. THE APPEAL IS ACCORDINGLY DISMISSED . WE ALSO FIND THAT THE AFORESAID ORDER OF THE HONBL E HIGH COURT WAS CHALLENGED BY THE DEPARTMENT BEFORE THE HONBLE SUPREME COURT BY PREF ERRING AN SLP WHICH HAS BEEN DISMISSED WHICH FACT HAS BEEN REPORTED IN CIT VS. S SAS EMERALD MEADOWS (2016) 73 TAXMANN.COM 248 (SC). 3. WE NOTE THAT SINCE THE PENALTY NOTICE ISSUED TO THE ASSESSEE DATED 02.06.2010 DID NOT SPELL OUT AS TO WHICH DEFAULT THE ASSESSEE HAS COMM ITTED FOR WHICH PENALTY U/S. 271(1)(C) OF THE ACT HAS BEEN INITIATED, THEREFORE, RESPECTFULLY FOLLOWING THE HONBLE KARNATAKA HIGH COURTS ORDER IN MANJUNATHA COTTON & GINNING FACTOR Y (SUPRA) AND SSAS EMERALD MEADOWS (SUPRA), WE CANCEL THE PENALTY IMPOSED BY T HE AO AND CONFIRM THE ORDER OF LD. CIT(A). THEREFORE, APPEAL OF THE REVENUE IS DISMIS SED. 3 ITA NO.2561/KOL/2013 & CO NO.11/KOL/2014 M/S.G. G. SUPER CEMENT PVT. LTD., AY 2008-09 4. SINCE THE CROSS OBJECTION FILED BY THE ASSESSEE IS IN SUPPORT OF THE ORDER OF LD. CIT(A), WE ARE REFRAINING FROM COMMENTING ON THE SA ME AND HENCE, THE SAME IS ALSO DISMISSED AS INFRUCTUOUS. 5. IN THE RESULT, BOTH THE APPEAL OF REVENUE AND CR OSS OBJECTION OF ASSESSEE ARE DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 09.06.20 17. SD/- SD/- (DR. A. L. SAINI) (ABY. T. VARKEY) (...) ( ..) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 9 TH JUNE, 2017 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT ACIT, CIRCLE-2, ASANSOL. 2 RESPONDENT M/S. G. G. SUPER CEMENT PVT. LTD., 317 , APCAR GARDEN, ASANSOL-713304, DIST. BURDWN, W.B. 3 . THE CIT(A), ASANSOL 4. 5. CIT , ASANSOL DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, SENIOR PRIVATE SECRETARY