Surendra Nath Sahani, Kolkata V. ITO, Ward -31(2), Kolkata, Kolkata

ITA 309/KOL/2012

• Counselvise Citation: [2013] 119 COUNSELVISE.COM (IT) 2950 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2013
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 24-02-2012
• Court: TRIBUNAL
• Department Lawyers: K N JANA
• Assessee Lawyers: AMICHAND BAID
• Section: 80C; 143(3)

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA () BEFORE . . . . . . . . , ! /AND ' #!' , ) [BEFORE SHRI P. K. BANSAL, AM & SHRI MAHAVIR SINGH, JM] !$ !$ !$ !$ / I.T.A NO. 309/KOL/2012 #% &' #% &' #% &' #% &'/ // / ASSESSMENT YEAR: 2008-09 SURENDRA NATH SAHANI VS. INCOME-TAX OFFICER, WD -31(2), KOLKATA (PAN:ARKPS6646K) ()* /APPELLANT ) (+,)*/ RESPONDENT ) DATE OF HEARING: 14.02.2013 DATE OF PRONOUNCEMENT: 15.03.2013 FOR THE APPELLANT: SHRI AMICHAND BAID FOR THE RESPONDENT: SHRI K. N. JANA, JCIT, SR. DR - / ORDER PER BENCH: THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-XIX, KOLKATA IN APPEAL NO. 23/CIT(A)-XIX/ITO,WD-31(2),KOL/11-12 DATED 27.12.20 11. ASSESSMENT WAS FRAMED BY ITO, WARD-31(2), KOLKATA U/S. 143(3) OF THE INCOME-TAX A CT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2008-09 VIDE HIS ORDER DA TED 24.11.2010. THE PENALTY WAS IMPOSED BY ITO, WARD-31(2), KOLKATA VIDE HIS ORDER DATED 30 .05.2011 U/S. 271(1)(C) OF THE ACT. 2. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AGA INST THE ORDER OF CIT(A) CONFIRMING LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT. FOR THIS, AS SESSEE HAS RAISED FOLLOWING THREE GROUNDS: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE LD. AO WAS NOT JUSTIFIED IN INITIATING PENALTY PROCEEDINGS U/S. 271(1)(C) OF TH E I. T. ACT, 1961 ON THE ALLEGED GROUND AS YOUR APPELLANT HAD MADE A TRUE AND COMPLETE DISC LOSURE OF HIS INCOME THROUGH A REVISED COMPUTATION OF HIS TOTAL INCOME AND PAID TA XES THEREON SUO MOTU U/S. 140A OF THE I. T. ACT DURING THE ASSESSMENT PROCEEDINGS. ACCOR DINGLY, THE LD. CIT(A-XIX, KOL WAS NOT JUSTIFIED IN UPHOLDING THE SAID PENALTY. 2. THAT THE LD. AO AS WELL AS THE LD. CIT(A-XIX, KO L WERE NOT JUSTIFIED IN NOT GIVING COGNIZANCE TO THE EXPLANATION GIVEN BY YOUR APPELLA NT IN RESPONSE TO PENALTY NOTICE U/S. 274 READ WITH SECTION 271(1)(C) OF THE I. T. ACT TO THE LD. AO, EVEN THOUGH THE LD. AO ACCEPTED THE RECOMPUTATION OF INCOME AND TAXES PAID THEREON U/S. 140A OF THE I. T. ACT. THE LD. CIT(A)-XIX, KOL WAS ALSO NOT JUSTIFIED IN N OT ACCEPTING THE SUBMISSIONS MADE BY YOUR APPELLANT BEFORE HIM IN COURSE OF HEARING OF T HIS APPEAL. 2 ITA NO.309/K/2012 SURENDRA NATH SAHANI 2008-09 3. THAT THE IMPUGNED PENALTY ORDER AS WELL AS THE I MPUGNED APPEAL ORDER ARE OTHERWISE ILLOGICAL, TORTUROUS, UNJUSTIFIED, ILLEGAL AND/OR V OID AB INITIO AND IS LIABLE TO BE QUASHED, SET ASIDE, RESCINDED, RECALLED AND/OR OTHERWISE NUL LIFIED, EVEN ON SYMPATHETIC AND/OR HUMANITARIAN GROUNDS. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE ONLY ISSUE INVOLVED IN THIS APPEAL IS AS REGARDS TO IMPOSITION OF PENALTY U/S. 271(1)(C) OF THE ACT BY THE AO AMOUNTING TO RS.32,3 81/-. THE ASSESSEE IS A RETIRED PERSON AGED ABOUT 86 YEARS RECEIVING PENSION INCOME, INCOME FRO M OTHER SOURCES AS WELL AS CAPITAL GAINS. THE ASSESSEE CLAIMED PENSION INCOME AS EXEMPT AT RS .17,724/- BUT AFTER A REVISED COMPUTATION HE DISCLOSED THE SAME AS TAXABLE. THE ASSESSEE HAS ALSO DISCLOSED SHORT TERM CAPITAL GAIN AT RS.2257/- AND INCOME FROM OTHER SOURCES WAS ENHANCE D TO RS.2,29,391/- INSTEAD OF RS.1,81,000/- SHOWN IN THE ORIGINAL RETURN. SIMILA RLY, THE DEDUCTION U/S. 80C WAS ALSO REDUCED TO RS.13,621/- INSTEAD OF RS.1 LAC CLAIMED IN THE O RIGINAL COMPUTATION. THE AO ASSESSED THE TOTAL INCOME AT RS.3,21,270/- AS AGAINST DECLARED T OTAL INCOME OF RS.1,66,516/-. BEFORE THE LOWER AUTHORITIES AS WELL AS BEFORE US, ASSESSEE CL AIMED THAT NO SOONER THE INCOME ARISING OUT OF PENSION, CAPITAL GAINS AND OTHER SOURCES HAS BROUGH T TO THE NOTICE OF THE ASSESSEE, THROUGH HIS NEW AUTHORISED REPRESENTATIVE HE IMMEDIATELY SUBMIT TED A REVISED COMPUTATION OF TOTAL INCOME AND PAID TAXES THEREON. THE ASSESSEE CLAIMED THAT HE IS A SENIOR CITIZEN OF MORE THAN 86 YEARS OF AGE AND SUFFERING FROM VARIOUS AILMENTS AND UNAB LE TO KEEP ALL FACTS IN HIS MIND. THE ASSESSEE COMMITTED A MISTAKE WHICH IS A TECHNICAL M ISTAKE AND ACCORDING TO HIM THE PENALTY SHOULD NOT HAVE BEEN LEVIED. WE FIND FROM THE ASSE SSMENT ORDER THAT PENALTY WAS INITIATED FOR BOTH I.E. CONCEALMENT OF INCOME AS WELL AS FURNISHI NG OF INACCURATE PARTICULARS OF INCOME AND THE RELEVANT INITIATION IS AS UNDER: SO PENALTY PROCEEDING U/S. 271(1)(C) HAS BEEN INIT IATED SEPARATELY FOR CONCEALMENT OF INCOME/INACCURATE PARTICULARS OF INCOME AND ISSUED NOTICE ACCORDINGLY. 4. WE FIND THAT THIS ISSUE IS SQUARELY COVERED IN F AVOUR OF ASSESSEE AND AGAINST REVENUE BY THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE C ASE OF NEW SORATHIA ENGINEERING CO. VS. CIT (2006) 282 ITR 642 (GUJ), WHEREIN IT IS HELD TH AT NO PENALTY CAN BE LEVIED IN THE ABSENCE OF A CLEAR CUT FINDING BY THE AO THAT EITHER THE AS SESSEE HAS CONCEALED THE PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME I.E. IT CANNOT BE FOR BOTH THE CHARGES. HONBLE GUJARAT HIGH COURT FOLLOWING ITS OWN JUDGMENT IN TH E CASE OF CIT VS. MANU ENGINEERING WORKS (1980) 122 ITR 306 (GUJ), WHEREIN IT IS HELD AS UNDER AT PAGE 310: 3 ITA NO.309/K/2012 SURENDRA NATH SAHANI 2008-09 WE FIND FROM THE ORDER OF THE INSPECTING ASSISTANT COMMISSIONER, IN THE PENALTY PROCEEDINGS, THAT IS, THE FINAL CONCLUSION AS EXPRE SSED IN PARA. 4 OF THE ORDER : I AM OF THE OPINION THAT IT WILL HAVE TO BE SAID THAT THE ASSE SSEE HAD CONCEALED ITS INCOME AND/OR THAT IT HAD FURNISHED INACCURATE PARTICULARS OF SUCH INC OME. NOW, THE LANGUAGE OF AND/OR MAY BE PROPER IN ISSUING A NOTICE AS TO PENALTY ORD ER OR FRAMING OF CHARGE IN A CRIMINAL CASE OR A QUASI-CRIMINAL CASE, BUT IT WAS INCUMBEN T UPON THE INSPECTING ASSISTANT COMMISSIONER TO COME TO A POSITIVE FINDING AS TO W HETHER THERE WAS CONCEALMENT OF INCOME BY THE ASSESSEE OR WHETHER ANY INACCURATE P ARTICULARS OF SUCH INCOME HAD BEEN FURNISHED BY THE ASSESSEE. NO SUCH CLEAR-CUT FINDIN G WAS REACHED BY THE INSPECTING ASSISTANT COMMISSIONER AND, ON THAT GROUND ALONE, T HE ORDER OF PENALTY PASSED BY THE INSPECTING ASSISTANT COMMISSIONER WAS LIABLE TO BE STRUCK DOWN. 5. IN VIEW OF THE ABOVE, IN THE PRESENT CASE ALSO T HE AO AS WELL AS CIT(A) ARE NOT SURE ON WHICH GROUND THE PENALTY IS TO BE LEVIED AND ON WHI CH GROUND IT IS TO BE CONFIRMED. THE CIT(A) HAS CONFIRMED THE PENALTY ENTIRELY ON DIFFERENT GRO UND THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME WHEREAS AO HAS LEV IED THE PENALTY ON THE GROUND THAT THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME, HENCE, WE DELETE THE PENALTY LEVIED BY AO AND CONFIRMED BY CIT(A). APPEAL OF ASSESSEE IS ALL OWED. 6. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. 7. ORDER PRONOUNCED IN THE OPEN COURT ON 15.03.2013 . SD/- SD/- . . . . . . . . , ' ' ' ' #!' #!' #!' #!' , (P. K. BANSAL) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( . . . .) )) ) DATED : 15 TH MARCH, 2013 /0 #12 #3 JD.(SR.P.S.) 4 ITA NO.309/K/2012 SURENDRA NATH SAHANI 2008-09 - 4 +##5 65&7- COPY OF THE ORDER FORWARDED TO: 1 . )* / APPELLANT SHRI SURENDRA NATH SAHANI, 3/C, ABINASH NIKETAN, 22A, GORACHAND ROAD, KOLKATA-700 014. 2 +,)* / RESPONDENT ITO, WARD-31(2), KOLKATA . 3 . #- ( )/ THE CIT(A), KOLKATA 4. 5. #- / CIT KOLKATA 5 <#= +# / DR, KOLKATA BENCHES, KOLKATA ,5 +#/ TRUE COPY, ->/ BY ORDER, ' !2 /ASSTT. REGISTRAR .