Seikh Boni Israil, Howrah V. ITO, Ward - 46(4), Kolkata, Kolkata

ITA 43/KOL/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1617 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 12-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NICHOLUS MURMU
• Assessee Lawyers: P K ROY

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : KOLKATA [BEFORE HONBLE SHRI N.V.VASUDEVAN, JM & HONBLE SHRI M.BALAGANESH, AM ] I.T.A NO. 43/KOL/2015 ASSESSMENT YEAR : 2009-1 0 SEIKH BONI ISRAIL -VS- ITO, WA RD-46(4), KOLKATA [PAN: AJFPS 5882 C] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI P.K. ROY, ADVO CATE FOR THE REVENUE : SHRI NICHOLUS MURMU, ADDL. C IT SR. DR DATE OF HEARING : 30.01.2018 DATE OF PRONOUNCEMENT : 02.02.2018 ORDER PER M.BALAGANESH, AM 1. THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-XXX, KOLKATA [IN SHORT THE LD CITA] IN APPEAL NO. 66/CIT(A)-XXX/WD-46(4)/2012-13 DATED 23.09.2014 AG AINST THE PENALTY ORDER PASSED BY THE ITO, WARD-46(4), KOLKATA[ IN SHORT THE LD AO ] UNDER SECTION 271(1)(C ) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 27 .06.2012 FOR THE ASSESSMENT YEAR 2009-10. 2. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL IS A S TO WHETHER THE LD. CIT(A) WAS JUSTIFIED IN UPHOLDING THE LEVY OF PENALTY U/S 271( 1)(C ) OF THE ACT, IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 2 ITA NO.43/KOL/2015 SEIKH BONI ISRAIL A.YR.2009-10 2 3. THE BRIEF FACTS OF THIS ISSUE IS THAT THE ASSESS EE IS AN INDIVIDUAL EARNING INCOME FROM BUSINESS BY DOING CONTRACTUAL SERVICES TO DIFFERENT SECTORS SUCH AS PRIVATE, PUBLIC, GOVERNMENT AND SEMI-GOVERNMENT SECTORS. THE ASSESSE E HAD FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2009-10 ON 01.10.2009 DECLA RING TOTAL INCOME OF RS. 6,40,050/-. DURING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDING S, THE LD. AO OBSERVED THAT THE AIR INFORMATION REPORTED THAT THE ASSESSEE HAS RECE IVED CONTRACT PAYMENT FROM DIFFERENT PERSONS AS UNDER: THE ASSESSEE STATED BEFORE THE LD. AO THAT THE PART Y BALANCES ARE TO BE RECONCILED. HOWEVER FOR THE SAKE OF ASSESSMENT PROCEEDINGS THE AFORESAID DISCREPANCIES WERE ACCEPTED TO BE OFFERED TO TAX AND THE SAME WAS TAXE D ACCORDINGLY. THE LD. AO LEVIED PENALTY U/S 271(1)(C ) OF THE ACT ON THE SAID ADDIT ION OF RS. 86,454/- WHICH WAS ACCEPTED BY THE ASSESSEE IN THE ASSESSMENT PROCEED INGS. THE PENALTY LEVIED WAS IN THE SUM OF RS. 30,000/-. THE ACTION OF THE LD. AO WAS U PHELD BY THE LD. CIT(A). AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US ON THE FOLLOWI NG GROUNDS: 1. THAT THE IMPUGNED ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)- XXX, KOLKATA IS AN ARBITRARY, ILLEGAL AND IN EXCESS OF HIS JURISDICTION WHILE ISSUING THE ORDER. 2. THAT THE ASSESSMENT AUTHORITY BASED THE PENALTY UPO N THE STATEMENT OF THIRD PARTY, NOT CONSIDERED THE VIEW OF THE APPELLANT. 3 ITA NO.43/KOL/2015 SEIKH BONI ISRAIL A.YR.2009-10 3 3. THAT THE ASSESSMENT AUTHORITY DID NOT CONSIDER THE JUDGMENT OF SIMILAR CASE WHICH IS FAVOURABLE OF THE APPELLANT. THEREFORE, YOUR APPELLANT PRAYS TO THE HONBLE MEMB ERS OF THE APPELLATE TRIBUNAL FOR DELETION OF PENALTY MADE BY THE LD. AS SESSING OFFICER, CONFIRMED BY THE LD. COMMISSIONER OF INCOME TAX(APPEALS). THE APPELLANT CRAVES THE LEAVE OF THE HONBLE MEMBE RS OF INCOME TAX APPELLATE TRIBUNAL TO URGE FURTHER GROUND(S) AT THE TIME OF HEARING AND TO PRODUCE THE DOCUMENTS IN SUPPORT OF ITS ARGUMENT, I F REQUIRED. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS. WE FIND THA T THE ASSESSEE HAD GIVEN PROPER EXPLANATION BEFORE THE LD. AO THAT THE PARTY BALANC ES WERE SUBJECT TO RECONCILIATION AS IT WAS BEING CARRIED OVER FROM EARLIER YEARS. THIS BON A FIDE EXPLANATION GIVEN BY THE ASSESSEE WAS NOT FOUND TO BE FALSE BY THE LD. AO. H OWEVER AS A MEASURE OF COOPERATION THE ASSESSEE HAD ALSO COME FORWARD TO OFFER TO TAX THE SAID DISCREPANCY DURING THE ASSESSMENT PROCEEDINGS. IN OUR CONSIDERED OPINION, THE MERE ACCEPTANCE BY THE ASSESSEE ALONE WOULD NOT INVITE THE ASSESSEE FROM L EVY OF PENALTY. IN OUR OPINION AND IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE ASSESSE E HAD DULY DISCHARGED HIS ONUS IN TERMS OF EXPLANATION 1 TO SECTION 271(1)(C ) OF THE ACT AND HENCE THIS IS NOT A FIT CASE TO LEVY OF PENALTY U/S 271(1)(C) OF THE ACT. ACCORDING LY, WE ARE INCLINED TO CANCEL THE SAME. ACCORDINGLY, GROUNDS RAISED BY THE ASSESSEE A RE ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE COURT ON 02.02.2018 SD/- SD/- [N.V. VASUDEVAN] [ M.BALAGANESH ] JUDICIAL MEMBER ACCOUNTANT MEMB ER DATED : 02.02.2018 SB, SR. PS 4 ITA NO.43/KOL/2015 SEIKH BONI ISRAIL A.YR.2009-10 4 COPY OF THE ORDER FORWARDED TO: 1. SEIKH BONI ISRAIL, VILL & P.O.-NABAGHARA, P.S.-S ANKRIAL, DISTRICT-HOWRAH, PIN- 711322. 2. ITO, WARD-46(4), KOLKATA, 3, GOVT. PLACE (WEST), KOLKATA-700001 3..C.I.T.(A)- , KOLKATA 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVAT E SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHE S