Appeal details
Counselvise Citation
[2011] 134 COUNSELVISE.COM (IT) 4460 (ITAT-CUTTACK)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
9 month(s) 6 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
08-04-2011
Appeal Filed By
Assessee
Bench Allotted
DB
Next Hearing Date
06-04-2011
Assessment Year
2006-2007
Appeal Filed On
02-07-2010
Judgement Text
, , IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK ( ) BEFORE . . , , HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER. /AND . . . , S HRI K.S.S.PRASAD RAO, JUDICIAL MEMBER / I.T.A.NO. 258,259 AND 260/CTK/2010 / ASSESSMENT YEARS 2006 - 07, 2007 - 08 AND 2008 - 09 M/S. KAUSHAL FERRO METALS PVT. LTD., A/174,SAHID NAGAR,BHUBANESWAR 751 007. PAN AACK 4096 E - - - V ERSUS - ACIT, CIRCLE 1(2), BHUBANESWAR. ( /APPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI P.C.SETHI, AR / FOR THE RESPONDENT: / SHRI A.K.MAHAPATRA,DR / ORDER . . , , SHRI K.K.GUPTA, ACCOUNTANT MEMBER. THESE THREE APPEALS BY THE ASSESSEE ARE FOR THE AYS 2006 - 07, 2007 - 08 AND 2008 - 09, AGAINST THE CONSOLIDATED ORDER DT.28.4.2010 PASSED BY THE COMMISSIONER OF INCOME - TAX (APPEALS), RAISE A COMMON ISSUE WITH RESPE CT TO CONFIRMATION OF PENALTY LEVIED U/S.271 (1) (B) OF THE INCOME - TAX ACT,1961 ON THE GROUND OF FAILURE OF THE ASSESSEE IN MAKING COMPLIANCE TO THE NOTICES ISSUED U/S S .143(2) AND 142(1) DURING THE COURSE OF ASSESSMENT PROCEEDINGS U/S S .143(3)/153C OF THE INC OME - TAX ACT,1961. 2. AT THE OUTSET THE LEARNED AR OF THE ASSESSEE SUBMITTED THAT IN QUANTUM APPEAL S, ITAT, CUTTACK BENCH IN ASSESSEES OWN CASE , VIDE ORDER DT.18. 2.2011 IN ITA NOS.407,408 AND 409/CTK/2010 , HAS DELETED THE ONLY AD DITION MADE IN THESE AYS UN DER CONSIDERATION (COPY PLACED ON RECORD). IT IS ON THIS BASIS AND PLACING RELIANCE ON THE DECISION OF ITAT, C - BENCH, AHMEDABAD IN THE CASE OF M/S. CHEER TRADING AND INVESTMENT P. LTD., V. THE ITO, IN ITA NO.834/AHD/2009 DT.25.2.2011 (COPY PLACED ON RECORD ) . THE 2 LEARNED AR OF THE ASSESSEE CONTENDED THAT SINCE THERE REMAINED NO TAX DUE, THE PENALTY LEVIED U/S.271(1)(B) IS LIABLE TO CANCELLED. 3. THE LEARNED DR, ON THE OTHER HAND, CONTENDED THAT WHETHER THERE REMAINS ANY TAX DUE OR NOT HAS NO EFFECT IN SO FAR AS LEVY OF PENALTY U/S.271(1)(B) IS CONCERNED , WHICH HAS BEEN LEVIED ONLY FOR THE FAILURE OF THE ASSESSEE TO COMPLY THE NOTICES ISSUED BY THE ASSESSING OFFICER FOR MAKING THE ASSESSMENT. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAI LABLE ON RECORD . IT IS NOT DISPUTED BY THE LEARNED DR THAT THE ONLY ADDITION MADE IN THE ASSESSMENT U/S.143(3)/153C IN THE RESPECTIVE AYS UNDER CONSIDERATION HAS BEEN DELETED BY THE TRIBUNAL IN ITA NO.407,408 AND 409/CTK/2010 . IN THE CASE OF M/S. CHEER TRA DING & INVESTMENT P. LTD (SUPRA), THE ITAT,C - BENCH, AHMEDABAD, ON IDENTICAL FACTS, AS IN THE PRESENT CASE, HAS CANCELLED THE PENALTY LEVIED U/S.271(1)(B). THE TRIBUNAL WHILE RENDERING SUCH A DECISION, HAS FOLLOWED THE DECISION OF ITAT, DELHI BENCH IN THE C ASE OF ITO V. ASHOK SURI (1997) 58 TTJ (DEL) 162, WHEREIN IT IS HELD THAT PENALTY U/S.271(1)(B) IS NOT EXIGIBLE, WHEN THE ADDITION MADE IS DELETED IN QUANTUM APPEAL. THE LEARNED DR COULD NOT CITE ANY DECISION/S CONTRARY TO THE ABOVE DECISIONS OF THE ITAT. IN THE PRESENT CASE ADMITTEDLY THE ONLY ADDITION MADE IN THE QUANTUM ASSESSMENTS IN THE RESPECTIVE AYS UNDER CONSIDERATION, HAS BEEN DELETED BY THE TRIBUNAL. THEREFORE, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND BY FOLLOWING THE DECISIONS OF I TAT, AHMEDABAD AND ITAT, DELHI BENCH , REFERRED TO ABOVE, WHICH STOOD IDENTICAL ON FACTS OF THE PRESENT CASE, WE HAVE NO HESITATION TO CANCEL THE IMPUGNED PENALTY LEVIED U/S.271(1)(B) IN CASE OF THE PRESENT ASSESSEE FOR THE IMPUGNED AYS UNDER CONSIDERATION. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER OF THE LEARNED 3 CIT(A) AND CANCEL THE PENALTY LEVIED U/S.271(1)(B) IN ALL THESE THREE AYS UNDER CONSIDERATION. 5. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED. THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 8 TH APRIL, 2011 SD/ - SD/ - ( . . . ) , (K.S.S.PRASAD RAO), JUDICIAL MEMBER ( . . ) , , (K.K.GUPTA), ACCOUN TANT MEMBER. ( ) DATE: - COPY OF THE ORDER FORWARDED TO: 1 . / THE APPELLANT : M/S. KAUSHAL FERRO META LS PVT. LTD., A/174,SAHID NAGAR,BHUBANESWAR 751 007. 2 / THE RESPONDENT: ACIT, CIRCLE 1(2), BHUBANESWAR. 3 . / THE CIT, 4 . ( )/ THE CIT(A), 5 . / DR, CUTTACK BENCH 6 . GUARD FILE . / TRUE COPY, / BY ORDER, [ ] SENIOR PRIVATE SECRETARY ( ), (H.K.PADHEE), SENIOR.PRIVATE SECRETARY.
