THE BANGA COOPERATIVE MARKETING SOCIETY LIMITED, BANGA V. INCOME TAX OFFICER, NAWANSHAHAR

ITA 362/ASR/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7132 (ITAT-AMRITSAR)
• Duration Of Justice: 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 01-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANKIT KUMAR AGGARWAL
• Keywords: Question of law
• Section: 271(1)(c); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CAMP BENCH AT JALANDHAR BEFORE SH. N. K. SAINI, HONBLE VICE PRESIDENT AND SH. RAVISH SOOD, JUDICIAL MEMBER ITA NO.358/ASR./2018 : ASSTT. YEAR : 2009-10 ITA NO.359/ASR./2018 : ASSTT. YEAR : 2010-11 ITA NO.362/ASR./2018 : ASSTT. YEAR : 2011-12 ITA NO.363/ASR./2018 : ASSTT. YEAR : 2014-15 THE BANGA CO-OPERATIVE MARKETING SOCIETY LTD., DANA MANDI, BANGA, DISTT. SBS NAGAR VS INCOME TAX OFFICER, NAWANSHAHAR (APPELLANT) (RESPONDENT) PAN NO. AAAAT6370M ASSESSEE BY : SH. NIRMAL MAHAJAN, CA REVENUE BY : SH. ANKIT KUMAR AGGARWAL, DR DATE OF HEARING : 11.01.2019 DATE OF PRONOUNCEMENT : 16.01.2019 ORDER PER BENCH: THESE FOUR APPEALS BY THE ASSESSEE ARE DIRECTED AGA INST THE SEPARATE ORDERS EACH DATED 29.03.2018 FOR THE ASSESSMENT YEA RS 2009-10 TO 2011-12 AND 2014-15 BY THE LD. CIT(A)-1, JALANDHAR. 2. SINCE, THE ISSUES INVOLVED ARE COMMON AND THE AP PEALS WERE HEARD TOGETHER, SO THESE ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. ITA NOS.358 & 359/ASR./2018 ITA NOS.362 & 363/ASR./2018 BANGA COOPERATIVE MARKETING SOCIETY LTD. 2 3. AT THE FIRST INSTANCE, WE WILL DEAL WITH THE APP EAL IN ITA NO.358/ASR./2018 FOR THE ASSESSMENT YEAR 2009-10. F OLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (A) FELL INTO GRAVE ERROR IN CONFIRMING THAT THE NOTICE ISSUED BY AO U/S 274 WITHOUT DELETING THE NON-APPLICABLE L IMB IS VALID AND WITHIN LAW. 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (A) FELL INTO GRAVE ERROR BY APPLYING THE DECISION OF HONBL E BOMBAY HIGH COURT IN CIT VS. SMT. KAUSHALYA, 216 IT R 660 WITHOUT CONFRONTING THE APPELLANT AND WITHOUT DIFFERENTIATING THE DECISION OF HONBLE APEX COURT IN THE CASE OF CIT VS SSAS EMERALD MEADOWS. 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX (A) FELL INTO GRAVE ERROR HOLDING THAT THE ASSESSEE WAS AWAR E OF EXCESS CLAIM OF DEDUCTION U/S 80P. 4. THAT THE LEARNED CIT(A) FELL INTO GREAT ERROR BY CONFIRMING THE PENALTY OF RS. 55,690/-. 4. THE ONLY ISSUE INVOLVED RELATES TO THE CONFIRMAT ION OF PENALTY LEVIED BY THE AO U/S 271(1)(C) OF THE INCOME TAX AC T, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 5. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 03.09.2009 DECLARING A NIL INCOME. LATER ON, THE CASE WAS REOPENED U/S 148 OF THE ACT AND THE ASSESSEE DECLARED ADDITIONAL INC OME OF RS.1,58,960/-. HOWEVER, THE AO FRAMED THE ASSESSMENT AT AN INCOME OF RS.1,90,240/- AND ALSO INITIATED THE PENALTY PROCEEDINGS U/S 271(1)(C ) OF THE ACT FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. HOWEVER, THE PENA LTY U/S 271(1)(C) OF THE ACT WAS LEVIED BY THE AO FOR CONCEALMENT OF INACCURATE PARTICULARS OF INCOME. ITA NOS.358 & 359/ASR./2018 ITA NOS.362 & 363/ASR./2018 BANGA COOPERATIVE MARKETING SOCIETY LTD. 3 6. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO SUSTAINED THE PENALTY LEVIED BY THE AO. 7. NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL F OR THE ASSESSEE DREW OUR ATTENTION TOWARDS PAGE NO. 31 OF THE ASSESSEES PAP ER BOOK WHICH IS THE COPY OF THE NOTICE ISSUED U/S 274 R.W.S. 271 OF THE ACT AND SUBMITTED THAT THE AO HAS NOT MENTIONED AS TO WHETHER THE PENALTY PROCEEDINGS WERE INITIATED FOR THE CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME BECAUSE NOTING HAS BEEN STRUCK OFF IN THE SA ID NOTICE. IT WAS ALSO STATED THAT THE AO LEVIED THE PENALTY FOR CONCEALMENT OF I NCOME WHILE THE PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT WERE INITIATED FOR FURNISHING INACCURATE PARTICULAR OF INCOME. THEREFORE, THE PENALTY LEVIED BY THE AO AND SUSTAINED BY THE LD. CIT(A) WAS NOT JUSTIFIED. RELIANCE WAS ALSO PLACED ON THE DECISION OF THE ITAT DELHI BENCH A, NEW DELHI IN THE CASE OF AMAN MEHTANI VS DCIT, CC-I, FARIDABAD IN ITA NO. 4325/DEL/2016 FOR THE AS SESSMENT YEAR 2010-11, ORDER DATED 22.11.2017. 8. IN HIS RIVAL SUBMISSIONS, THE LD. DR STRONGLY SU PPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND REITERATED THE O BSERVATIONS MADE THEREIN. 9. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IT IS NOTICED THA T AN IDENTICAL ISSUE HAVING SIMILAR FACTS HAS BEEN ADJUDICATED BY THE ITAT DELH I BENCH A, NEW DELHI IN THE CASE OF AMAN MEHTANI VS DCIT (SUPRA) WHEREIN ON E OF US (VICE PRESIDENT) IS A CO-SIGNATORY IN THE SAID ORDER DATED 22.11.201 7, IT HAS BEEN HELD AS UNDER: 8. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THERE IS NO CONCEALMENT IN THE PRESENT CASE. THE ASSESSEE HAS ALSO FILED ALL THE DETAILS DURING THE REGULAR ITA NOS.358 & 359/ASR./2018 ITA NOS.362 & 363/ASR./2018 BANGA COOPERATIVE MARKETING SOCIETY LTD. 4 ASSESSMENT PROCEEDINGS. FROM THE NOTICE DATED 28.12 .2011 PRODUCED BY THE LD. AR DURING THE HEARING, IT CAN B E SEEN THAT THE ASSESSING OFFICER WAS NOT SURE UNDER WHICH PROVISIO NS OF SECTION 271 OF THE INCOME TAX ACT, 1961, THE ASSESSEE IS LI ABLE FOR PENALTY. THE ISSUE IS SQUARELY COVERED BY THE DECISION OF TH E HON'BLE SUPREME COURT IN CASE OF M/S SSA EMERALD MEADOWS. THE EXTRACT OF THE HONBLE KARNATAKA HIGH COURT IN M/S. SSA EM ERALD MEADOWS ARE AS UNDER WHICH WAS CONFIRMED BY THE HON BLE APEX COURT: '3. THE TRIBUNAL HAS ALLOWED THE APPEAL FILED BY TH E ASSESSEE HOLDING THE NOTICE ISSUED BY THE ASSESSING OFFICER UNDER SECTION 274 READ WITH SECTION 271(L)(C) OF THE INCOME TAX A CT, 1961 (FOR SHORT THE ACT) TO BE BAD IN LAW AS IT DID NOT SPE CIFY WHICH LIMB OF SECTION 271(L)(C) OF THE ACT, THE PENALTY PROCEE DINGS HAD BEEN INITIATED I.E., WHETHER FOR CONCEALMENT OF PARTICUL ARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE TRIBUNAL, WHILE ALLOWING THE APPEAL OF THE ASSESSEE, HAS RELI ED ON THE DECISION OF THE DIVISION BENCH OF THIS COURT RENDER ED IN THE CASE OF COMMISSIONER OF INCOME TAX -VS- MANJUNATHA COTTON AND GINNING FACTORY (2013) 359 ITR 565. 4. IN OUR VIEW, SINCE THE MATTER IS COVERED BY JUDG MENT OF THE DIVISION BENCH OF THIS COURT, WE ARE OF THE OPINION , NO SUBSTANTIAL QUESTION OF LAW ARISES IN THIS APPEAL F OR DETERMINATION BY THIS COURT. THE APPEAL IS ACCORDIN GLY DISMISSED. 10. SINCE, THE FACTS OF THE PRESENT CASE ARE SIMILA R TO THE AFORESAID REFERRED TO CASE. SO, RESPECTFULLY FOLLOWING THE AFORESAID REFE RRED TO ORDER DATED 22.11.2017, THE IMPUGNED PENALTY LEVIED BY THE AO A ND SUSTAINED BY THE LD. CIT(A) IS DELETED. 11. IN ALL OTHER APPEALS IN ITA NOS. 359, 362 & 363 /ASR./2018, THE FACTS ARE SIMILAR, THE ONLY DIFFERENCE IS IN THE AMOUNT OF PE NALTY LEVIED IN EACH OF THE YEARS. THEREFORE, OUR FINDINGS GIVEN IN THE FORMER PART OF THIS ORDER SHALL APPLY MUTATIS MUTANDIS. ITA NOS.358 & 359/ASR./2018 ITA NOS.362 & 363/ASR./2018 BANGA COOPERATIVE MARKETING SOCIETY LTD. 5 12. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE ALLOWED. (ORDER PRONOUNCED IN THE COURT ON 16/01/2019) SD/- SD/- (RAVISH SOOD) (N. K. SAINI) JUDICIAL MEMBER V ICE PRESIDENT DATED: 16/01/2019 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR