M/s Unipack Air Express (P) Ltd., Kolkata V. ITO, Ward-9(1), Kolkata, Kolkata

ITA 421/KOL/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74985 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 10 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-01-2014
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 1996-1997
• Appeal Filed On: 16-03-2012
• Court: TRIBUNAL
• Department Lawyers: RAVI JAIN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH C , KOLKATA [BEFORE HONBLE SRI P.K.BANSAL, AM & HONBLE SRI MAHAVIR SINGH, JM] ITA NO.421/KOL/2012 ASSESSMENT YEAR : 1996-97 ( APPELLANT ) - (RESPONDENT) M/S.UNIPACK AIR EXPRESS(P)LTD. I.T.O., WARD-9(1) , KOLKATA -VERSUS- KOLKATA (PAN:AAACU 7241 C) FOR THE APPELLANT: SHRI SUBHASH AGARWAL FOR THE RESPONDENT: SHRI RAVI JAIN DATE OF HEARING : 13.01.2014 DATE OF PRONOUNCEMENT : / ORDER PER SHRI P.K.BANSAL, AM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A)-VIII, KOLKATA DATED 17.02.2012 SUSTAINING THE PENALTY IMP OSED BY THE AO U/S 271(1)(C) OF THE IT ACT AMOUNTING TO RS.1,19,086/-. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE AO DUR ING THE COURSE OF THE ASSESSEE ADDED A SUM OF RS.2,79,000/- IN RESPECT OF THE PENA LTY IMPOSED U/S 271(1)(C) OF THE IT ACT. IN RESPECT OF THE LOAN TAKEN BY THE ASSESEE FR OM SHRI GOUTAM PAUL WHO HAPPENS TO BE ONE OF THE DIRECTORS OF THE COMPANY THE ASSES SEE COULD NOT PROVE THE CREDITWORTHINESS OF SHRI GOUTAM PAUL AND HAS ALSO N OT WENT IN APPEAL. THE AO INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) WITHOUT MENTIONING FOR WHICH CHARGE THE PENALTY HAS BEEN INITIATED AND ULTIMATELY IMPOSED T HE PENALTY ON THE ASSESSEE AFTER CONSIDERING THE EXPLANATION FILED BY THE ASSESSEE B Y OBSERVING AS UNDER :- IT IS, THEREFORE, A FIT CASE WHERE PENALTY IS IMPO SABLE U/S 271(1)(C) AS PER CALCULATION BELOW :- TAX SOUGHT TO BE EVADED HAD THE AMOUNT OF CASH CRED IT BE TREATED AS ITS TOTAL INCOME I.E RS.2,97,715/- TAX ON SAID RS.2,97,715/- @ 40% RS.1,19,086/- MINIMUM PENALTY IMPOSABLE U/S 271(1)(C) @10% RS.1,1 9,086/- MAXIMUM PENALTY IMPOSABLE U/S 271(1)(C) @300% RS.3, 59,250/- ITA NO. 421/KOL/2012 M/S.UNIPACK AIR EXPRES S (P)LTD. A.YR.1996-97 2 TO END IN JUSTICE, I HEREBY IMPOSE PENALTY U/S 271( 1)(C) @100% OF TAX SOUGHT TO BE EVADED I.E. RS.1,19,086/ ON THE ASSESSEE COMPANY FOR THE A.YR.1996-97 THE ASSESSEE WENT IN APPEAL BEFORE THE LD. CIT(A). BEFORE THE LD. CIT(A) THE ASSESSEE CONTENDED THAT THE ASSESSEE HAS NEITHER CONCEALED T HE PARTICULARS OF INCOME NOR FURNISHED INACCURATE PARTICULARS OF INCOME. THE ASS ESSEE DID NOT APPEAL BEFORE THE APPELLATE AUTHORITY THAT THE ASSESSEE HAS CONCEALED PARTICULARS OF INCOME NOR FURNISHED INACCURATE PARTICULARS OF INCOME. THE ASSESSEE HAS ALSO RELIED ON THE DECISION OF NATIONAL TEXTILES VS CIT 249 ITR 125 (GUJ) BUT T HE LD. CIT(A) CONFIRMED THE ORDER OF THE AO LEVYING THE PENALTY. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y CONSIDERED THE SAME AND THE PENALTY ORDER. WE NOTED THAT U/S 271(1)(C) OF THE A CT THE PENALTY CAN BE IMPOSED EITHER FOR FILING INACCURATE PARTICULARS OR CONCEAL ING PARTICULARS OF INCOME. THE AO IS REQUIRED TO SATISFY THE CHARGE FOR WHICH THE PENALT Y IS IMPOSED. WE HAVE GONE THROUGH THE ASSESSMENT ORDER AS WELL AS THE PENALTY ORDER. WE NOTED THAT THE AO HAS NOT INITIATED PENALTY IN RESPECT OF ANY SPECIFIC CHARGE NOR SPECIFIED ANY PARTICULAR CHARGE WHILE IMPOSING THE PENALTY ON THE ASSESSEE. THE AO SIMPLY OBSERVED THAT THE PENALTY IS LEVIABLE U/S 271(1)(C) OF THE ACT. THE HONBLE S UPREME COURT IN THE CASE OF CIT VS ATUL MOHAN BINDAL 317 1(SC) HAS LAID DOWN THAT BEF ORE IMPOSING THE PENALTY BY THE AO THE REVENUE MUST COMPLY WITH THE CONDITIONS AS S PECIFIED U/S 271(1)(C) OF THE ACT. SIMILAR VIEW HAS BEEN TAKEN BY THE HONBLE SUP REME COURT IN THE CASE OF DILIP N.SHROFF VS JCIT AND ANOTHER 291 ITR 519 (SC) T HE HONBLE GUJARAT HIGH COURT IN THE CASE OF NEW SRATHIA ENGG.CO. VS CIT 282 ITR 642 HAS LAID DOWN THAT ORDER OF PENALTY MUST CLEARLY STATE WHETHER IT IS FOR CONCEA LMENT OR FOR FURNISHING INACCURATE PARTICULARS. 3.1. IN VIEW OF THE AFORESAID DECISION WE ARE OF TH E VIEW THAT THE REVENUE MUST BRING OUT SPECIFIC CHARGE FOR WHICH THE PENALTY U/S 271(1)(C) OF THE ACT HAS TO BE IMPOSED. SINCE NO SPECIFIC CHARGE HAS BEEN BROUGHT OUT AGAINST THE ASSESSEE, WE THEREFORE DELETE THE PENALTY IMPOSED U/S 271(1)(C) OF THE ACT. ITA NO. 421/KOL/2012 M/S.UNIPACK AIR EXPRES S (P)LTD. A.YR.1996-97 3 4. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED. ORDER PRONOUNCED IN THE COURT ON 17.01.2014. SD/- SD/- [MAHAVIR SINGH ] [P.K.BANSAL] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 17.01.2014. R.G.(.P.S.) COPY OF THE ORDER FORWARDED TO: 1. M/S.UNIPACK AIR EXPRESS (P)LTD., VOSTAK HOUSE, KB-2 1, SALT LAKE, KOLKATA- 700098.. 2 I.T.O., WARD-9(1), KOLKATA 3 . CIT KOLKATA 4 . CIT(A)-VIII, KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY, BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES