Sri Chandan Das, Kolkata V. ITO, WD-24(3), KOLKATA, Kolkata

ITA 293/KOL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1368 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 26-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DAVID Z CHAWNGTHU ACIT
• Keywords: Question of law

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C, BENCH KOLKATA BEFORE SHRI A. T. VARKEY, JM & DR. A.L.SAINI, AM ./ITA NO.293/KOL/2016 ( / ASSESSMENT YEAR: 2010-11 SRI CHANDAN DAS 68/38, JESSORE ROAD, AMARPALLY, KOLKATA 700 064. VS. I.T.O, WARD 24(3), KOLKATA ./ ./PAN/GIR NO. : ADOPD 6585 G (APPELLANT) .. (RESPONDENT) APPELLANT BY :SHRI SUNIL SURANA, FCA RESPONDENT BY :SHRI DAVID Z. CHAWNGTHU, ACIT, SR. DR / DATE OF HEARING : 03/10/2017 /DATE OF PRONOUNCEMENT : 06/10/2017 / O R D E R PER DR. ARJUN LAL SAINI, AM: THE APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF LD. CIT(A)- 18, KOLKATA DATED 28.01.2016 FOR A.Y 2010-11. 2. AT THE OUTSET ITSELF, AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE NOTICES U/S. 274 OF THE ACT R.W.S. 271 OF THE ACT DATED 13.12.2012 AND SERVED ON THE ASSESSEE WHEREIN WE NOTE THAT THE AO HAS NOT STRUCK DOWN THE LIMB OF CHARGE/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 INACCURATE 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 PARTICULARS 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 GINNING FACTORY (SUPRA) AND HELD AS UNDER: SRI CHANDAN DAS ITA NO.293/KOL/2016 ASSESSMENT YEAR: 2010-11 PAGE | 2 3. THE TRIBUNAL HAS ALLOWED THE APPEAL FILED BY THE ASSESSEE HOLDING THE NOTICE ISSUED BY THE ASSESSING OFFICER UNDER SECTION 274 READ WITH SECTION 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 BEEN 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 OF CIT VS. MANJUNATHA COTTON & GINNING FACTORY (2013) 359 ITR 565/218 TAXMAN 423/35 TAXMANN.COM 250(KAR). 4. IN OUR VIEW, SINCE THE MATTER IS COVERED BY JUDGMENT OF THE DIVISION BENCH OF THIS COURT, WE ARE OF THE OPINION, NO SUBSTANTIAL QUESTION OF LAW ARISES IN THIS APPEAL FOR DETERMINATION BY THIS COURT. THE APPEAL IS ACCORDINGLY DISMISSED. 3. WE ALSO FIND THAT THE AFORESAID ORDER OF THE HONBLE HIGH COURT WAS CHALLENGED BY THE DEPARTMENT BEFORE THE HONBLE SUPREME COURT BY PREFERRING AN SLP WHICH HAS BEEN DISMISSED WHICH FACT HAS BEEN REPORTED IN CIT VS. SSAS EMERALD MEADOWS (2016) 73 TAXMANN.COM 248 (SC). 4. WE NOTE THAT SINCE THE PENALTY NOTICE ISSUED TO THE ASSESSEE DATED 13.12.2012 DID NOT SPELL OUT AS TO WHICH DEFAULT THE ASSESSEE HAS COMMITTED 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 FACTORY (SUPRA) AND SSAS EMERALD MEADOWS (SUPRA), WE CANCEL THE PENALTY IMPOSED BY THE AO WHICH HAS BEEN ERRONEOUSLY CONFIRMED BY THE LD. CIT(A). THEREFORE, THE APPEAL OF THE ASSESSEE IS ALLOWED. 5. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 06/10/2017. SD/- (A. T. VARKEY) SD/- (DR. A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA ; DATED 06/10/2017 [ RS SPS] SRI CHANDAN DAS ITA NO.293/KOL/2016 ASSESSMENT YEAR: 2010-11 PAGE | 3 / COPY OF THE ORDER FORWARDED TO : TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY, HEAD OF OFFICE/D.D.O, I.T.A.T, KOLKATA BENCHES, KOLKATA . 1. / THE ASSESSEE SRI CHANDAN DAS 2. / THE REVENUE- I.T.O, WARD 24(3), KOLKATA 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, KOLKATA 6. / GUARD FILE.