Prasant Kumar Das, Keonjhar V. ACIT, Circle-1(1), Sambalpur

ITA 387/CTK/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3853 (ITAT-CUTTACK)
• Duration Of Justice: 5 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 18-04-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 07-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MOHAPATRA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH , CUTTACK BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND KULDIP SINGH JUDICIAL MEMBER ITA NO.387 /CTK/2016 ASSESSMENT YEAR : 2009 - 2010 SRI PRASANT KUMAR DAS, BARBIL BASTI, WARD NO.6, BARBIL, KEONJHAR. VS. ACIT, CIRCLE 1(1), SAMBALPUR PAN/GIR NO. AAOPD 1277 G (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI NIHAR RANJAN BISWAL, AR REVENUE BY : SHRI A.K.MOHAPATRA, CIT , DR DATE OF HEARING : 18 /04/ 2017 DATE OF PRONOUNCEMENT : 21 /04/ 2017 O R D E R PER N.S.SAINI, AM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - CUTTACK, DATED 25.5.2016 , FOR THE ASSESSMENT YEAR 2009 - 2010 . 2. THE SOLE ISSUE INVOLVED IN THIS APPEAL IS THAT THE LD CIT(A) ERRED IN CONFIRMING THE LEVY OF PENALTY OF RS.5,76,760/ - U/S.271(1)(C) OF THE ACT. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED RETURN OF INCOME AT RS.44,28,220/ - . THE ASSESSMENT WAS COMPLETED U/S.143(3) OF THE ACT AT RS.67,26,540/ - BY MENTIONING THAT AN ADDITION OF RS.11,76,436/ - ON 2 ITA NO.387/CTK/2016 ASSESSMENT YEAR :2009 - 2010 ACCOUNT OF NEGATIVE CASH BALANCE ON DIFFERENT DATES AND BOGUS EXPENDITURE OF RS.11,26,879/ - U/S.69C OF THE ACT. 4. ON APPEAL, THE CIT(A) WAS SATISFIED WITH THE EVIDENCE REGARDING EXPENDITURE MADE AND ALLOWED RELIEF OF RS.3,75,783/ - TO THE ASSESSEE AND AFTER APPEAL EFFECT, THE ADDITION MADE BY THE ASSESSING OFFICER WAS REDUCED TO RS.19,22,532/ - . THEREAFTER, THE ASSESSING OFFICER LEVIED PENALTY U/S.271(1)(C) OF THE ACT AT RS.5,76,759/ - BY TREATING THE AMOUNT OF RS.19,22,532/ - AS DELIBERA TE SUPPRESSION OF HIS INCOME. 5. ON APPEAL, THE CIT(A) OBSERVED THAT THE TRIBUNAL ON AN APPEAL BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) REDUCED THE ADDITION BY RS.11,93,144/ - AND, THEREFORE, ADDITION U/S.68 OF THE ACT WAS RS.6,97,793/ - , U/S.69C OF THE ACT WAS RS.14,216 AND RS.17,379/ - WHICH CAME TO RS.7,29,388/ - . HENCE, THE CIT(A) DIRECTED THE ASSESSING OFFICER TO LEVY PENALTY U/S.271(1)(C) OF THE ACT ON THE AMOUNT OF RS.7,29,388/ - AND PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. 6. AT TH E OUTSET, LD AUTHORISED REPRESENTATIVE OF THE ASSESSEE FILED BEFORE US A COPY OF NOTICE ISSUED U/S.271(1)(C) OF THE ACT DATED 28.12.2011 , COPY OF WHICH IS PLACED ON RECORD AND POINTED OUT THEREFROM THAT IN THE SAID NOTICE, THE ASSESSING OFFICER HAS STATED AS UNDER: WHEREAS IN THE COURSE OF PROCEEDINGS BEFORE ME FOR THE ASSESSMENT YEAR 2009 - 10, IT APPEARS TO ME THAT YOU : - HAVE CONCEALED THE PARTICULARS OF YOUR INCOME .. F OR THE ABOVE ASSESSMENT YEAR AND FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. 3 ITA NO.387/CTK/2016 ASSESSMENT YEAR :2009 - 2010 7. HE SUBMITTED THAT THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. SSAS. EMARLD MEADOWS DATED 11 TH JANUARY, 2017 PASSED IN SPECIAL LEAVE TO APPEAL (CC NO.11485/2016) HAS HELD THAT OMISSION BY THE AO TO EXPLICITLY SPECIFY IN THE PENALTY NOTICE AS TO WH ETHER PENALTY PROCEEDINGS ARE BEING INITIATED FOR FURNISHING OF INACCURATE PARTICULARS OR FOR CONCEALMENT OF INCOME MAKES THE PENALTY ORDER LIABLE FOR CANCELLATION. HENCE, HE SUBMI TTED THAT THE ORDER DATED 26.12.2013 LEVYING PENALTY OF RS.5,76,760 / - IMPOSED BY THE ASSESSING OFFICER U/S.271(1)(C) IS, THEREFORE, LIABLE TO BE CANCELLED. 8 . THE DEPARTMENTAL REPRESENTATIVE EXCEPT RELYING ON THE ORDERS OF LOWER AUTHORITIES COULD NOT CONTROVERT THE ABOVE SUBMISSION OF LD AUTHORISED REPRESENTATIVE OF THE ASSESSEE. 9 . WE FIND THAT THE FACTS IN THE PRESENT APPEAL ARE NOT IN DISPUTE AND THE ASS ESSING OFFICER IN THE NOTICE U/S.271(1)(C) DATED 28.12.2011 HAS STATED AS UNDER: WHEREAS IN THE COURSE OF PROCEEDINGS BEFORE ME FOR THE ASSES SMENT YEAR 2009 - 10, IT APPEARS TO ME THAT YOU: - HAVE CONCEALED THE PARTICULARS OF YOUR INCOME.. FOR THE ABOVE ASSESSMENT YEAR AND FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. 10. TH E FACTS OF THE PRESENT APPEAL ARE IDENTICAL TO THE FACTS OF THE CASE BEFORE THE HONBLE SUPREME COURT IN THE CASE OF SSAS. EMARLD MEADOWS(SUPRA) AND, THEREFORE, THE DECISION OF HONBLE SUPREME COURT SQUARELY APPLIES TO THE CASE OF THE ASSESSEE. HENCE, RES PECTFULLY FOLLOWING 4 ITA NO.387/CTK/2016 ASSESSMENT YEAR :2009 - 2010 THE SAME, I CANCEL TH E ORDER OF THE ASSESSING OFFICER DATED 26.12.2013 LEVY ING PENALTY OF RS.5,76,760 / - U/S.271(1)(C) AND ALLOW THE GR OUND OF APPEAL OF THE ASSESSEE. 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRO NOUNCED IN THE OPEN COURT ON 21 /04/2017 IN THE PRESENCE OF PARTIES. SD/ - SD/ - (KULDIP SINGH) ( N.S SAINI) JUDICIAL MEMBER A CCOUNTANT MEMBER CUTTACK; DATED 21 /04/2017 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER, SR.PRIVATE SECRETARY ITAT, CUTTACK 1. THE APPELLANT : SRI PRASANT KUMAR DAS, BARBIL BASTI, WARD NO.6, BARBIL, KEONJHAR 2. THE RESPONDENT. ACIT, CIRCLE 1(1), SAMBALPUR 3. THE CIT(A) CUTTACK 4. PR.CIT , CUTTACK 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//