Sukanta Dash, Bhubaneswar V. ITO, Bhubaneswar

ITA 313/CTK/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58389 (ITAT-CUTTACK)
• Duration Of Justice: 7 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2012
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 19-12-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 07-06-2011
• Court: TRIBUNAL
• Department Lawyers: S C MOHANTY
• Assessee Lawyers: PARTHENDU RAY
• Keywords: Business income

Judgement Text

IN THE INC O ME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE : SHRI K.K.GUPTA, AM , AND SHRI K.S.S.PRASAD RAO, JM ITA NO. 313/CTK/2011 (ASSESSMENT YEAR 2006 - 07) SRI SUKANTA DASH,FLATNO.404, MADHABNILAYAM APARTMENT, LEWIS ROAD, BHUBANESWAR. PN: AAMPD 2919 B VERSUS INCOME - TAX OFFICER, WARD 2(2), BHUBANESWAR (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI PARTHENDU RAY, AR FOR THE RESPONDENT SHRI S.C.MOHANTY, DR DATE OF HEARING : 19.12.2011 DATE OF PRONOUNCEMENT : 13.01.2012 ORDER SHRI K.K.GUPTA, AM : THE ASSESSEE HAS FILED THIS APPEAL AGAINST THE ORDER DT.11.3.2011 OF THE COMMISSIONER OF INCOME - TAX (APPEALS) CONFIRMING THE PENALTY OF 1,01,200 LEVIED U/S.271(1)(C) OF THE INCOME - TAX ACT,1961 FOR THE ASSESSMENT YEAR 2006 - 07. 2. THE APPEAL IS FILED DELAYED BY 11 DAYS. CONSIDERING THE FACT THAT THE ASSESSEE WAS SUFFERING FROM BRONCHIAL INFECTION, WHICH FACT IS SUPPORTED BY AN AFFIDAVIT FILED BEFORE THE TRIBUNAL, WE HOLD THE DELAY AS NOT INTENTIONAL AND THEREFORE, WE CONDONE THE SAME A ND ADMIT THE APPEAL FOR HEARING. 3. HAVING HEARD BOTH THE PARTIES AND PERUSING THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW, WE FIND THAT THE ASSESSING OFFICER HAVE LEVIED PENALTY U/S.271(1)(C) BECAUSE IN THE QUANTUM ASSESSMENT, THERE WAS AN ADDITION TO T HE TUNE OF 3,45,720 DUE TO ASSESSEES WRONG TREATMENT OF INCENTIVE BONUS AS BUSINESS RECEIPT AND FURNISHING INACCURATE PARTICULARS OF THE GROSS SALARY. THE UNDISPUTED FACTS ARE THAT THE ASSESSEE DISCLOSED RECEIPT OF GROSS SALARY OF 5,92,012 ON THE BASI S OF FORM 16, WHICH WAS SUBSEQUENTLY CLARIFIED BY THE EMPLOYER IN RESPONSE TO REQUISITION U/S.133(6) TO BE AN INADVERTENT MISTAKE AGAINST GROSS SALARY OF 6,79,069. FURTHER, IN THE RETURN THE ASSESSEE CLAIMED DEDUCTION OF CONVEYANCE ALLOWANCE AND EXPENSES ON INCENTIVE ITA NO.313/CTK/2011 2 BONUS. THE ASSESSING OFFICER WAS OF THE OPINION THAT THE INCENTIVE BONUS BEING PART OF SALARY, THE ASSESSEE IS NOT ENTITLED TO ANY DEDUCTION EXCEPT DEDUCTION TOWARDS PROFESSIONAL TAX U/S.16(III). LAW IS WELL SETTLED THAT FOR LEVY OF PENALTY U /S.271(1)(C), THE FINDING GIVEN IN THE ASSESSMENT PROCEEDINGS FOR DETERMINING OR COMPUTING THE TAX IS NOT CONCLUSIVE. BEFORE SUCH PENALTY IS IMPOSED , THE ENTIRETY OF CIRCUMSTANCES MUST REASONABLY POINT TO THE CONCLUSION THAT THE ASSESSEE HAS CONSCIOUSLY CO NCEALED THE PARTICULARS OF HIS INCOME OR HAS DELIB ERATELY FURNISHED INACCURATE PARTICULARS . HERE IN THE PRESENT CASE BOTH THE CONDITION PRECEDENT IS LACKING INASMUCH AS THE ASSESSEE HAD DISCLOSED GROSS SALARY ON THE BASIS OF FORM 16 ISSUED BY ITS EMPLOYER , WHICH WAS ADMITTED BY THE EMPLOYER TO BE AN INADVERTENT MISTAKE, WHICH CLEARLY INDICATE THAT THERE WAS NO CONSCIOUSLY CONCEALMENT OF INCOME OR FURNISHING OF ANY INACCURATE PARTICULARS OF INCOME. FURTHER, THE ASSESSEE HAD CLAIMED SOME DEDUCTIONS, WHICH AC CORDING TO THE ASSESSING OFFICER IS INADMISSIBLE AND IN SUCH SITUATION LAW IS WELL SETTLED THAT NO PENALTY U/S.271(1)(C) IS ATTRACTED. THEREFORE, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE IN ITS ENTIRETY, WE ARE OF THE CONSIDERED VIEW THAT LEVY O F PENALTY U/S.271(1)(C) IN THE INSTANT CASE IS NOT JUSTIFIED AND ACCORDINGLY, WE CANCEL THE SAID PENALTY BY SETTING ASIDE THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW AND ALLOWING THE APPEAL OF THE ASSESSEE. 4. IN TH E RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. S D/ - S D/ - (K.S.S.PRASAD RAO) JUDICIAL MEMBER (K.K.GUPTA) ACCOUNTANT MEMBER DATE: 13.01.2012 H.K.PADHEE, SENIOR PRIVATE SECRETARY. ITA NO.313/CTK/2011 3 COPY OF THE ORDER FORWARDED T O : 1. THE APPELLANT: SRI SUKANTA DASH,FLATNO.404, MADHABNILAYAM APARTMENT, LEWIS ROAD, BHUBANESWAR. 2. THE RESPONDENT: INCOME - TAX OFFICER, WARD 2(2), BHUBANESWAR 3. THE CIT, 4. THE CIT(A), 5. THE DR, CUTTACK 6. GUARD FILE (IN DUPLICATE) TRUE COPY, BY ORDER, SENIOR PRIVATE SECRETARY.