ACIT, Circle - 24, Kolkata, Kolkata V. Smt. Mukti Chatterjee & Shri Dipankar Banerjee, North 24 Parganas

ITA 433/KOL/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2573 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-05-2010
• Appeal Filed By: Department
• Bench Allotted: A
• Next Hearing Date: 20-05-2010
• Assessment Year: 1998-1999
• Appeal Filed On: 26-02-2010
• Court: TRIBUNAL
• Department Lawyers: P KOLHE
• Assessee Lawyers: T K CHAKRABORTY
• Keywords: Set aside
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA [BEFORE HONBLE SRI D. K. TYAGI, JM & HONBLE SRI C. D. RAO , AM] I.T.A. NOS.433 & 434/KOL/2010 ASSESSMENT YEASR: 1998-99 & 1999-2000 ASSISTANT COMMISSIONER OF INCOME-TAX, -VS- SMT. MUKTI CHATTERJEE & SR DIPANKAR CIRCLE-24, KOLKATA. BANERJEE, L/R OF LATE ANIMA BANERJEE (APPELLANT) (RESPONDENT) APPELLANT BY : SRI P. KOLHE RESPONDENT BY : SRI T. K. CHAKRABORTY O R D E R PER D. K. TYAGI, JM: BOTH THESE APPEALS PREFERRED BY THE REVENUE ARE DIR ECTED AGAINST THE SEPARATE ORDERS OF THE LD. CIT(A) BOTH DATED 30.11.2009 FOR THE ASSESSMENT YEARS 1998-99 AND 1999-2000. SINCE IN BOTH THE APPEALS COMMON ISSUES ARE INVOLVED AND HAVE BEEN HEARD TOGETHER, FOR THE SAKE OF CONVENIENCE, WE DISPOSE O F BOTH THE APPEALS BY THIS CONSOLIDATED ORDER. 2. THE COMMON ISSUE IN BOTH THE YEARS APPEAL IS TH AT THE REVENUE IS AGGRIEVED BY THE ORDER OF THE LD. CIT(A) WHO, WITHOUT ALLOWING O PPORTUNITY TO THE AO ACCEPTED THE NEW EVIDENCE IN VIOLATION OF THE PROVISIONS OF RULE 46 OF THE I. T. RULES. 3. BRIEF FACTS OF THE CASE IN RESPECT OF ASSESSMENT YEAR 1998-99 ARE THAT THE AO IMPOSED PENALTY OF RS.3,21,856/- U/S. 271(1)(C) OF THE I. T. ACT IN THE PENALTY ORDER THE AO OBSERVED THAT WHILE COMPLETING THE ASSESSMEN T FOR AY 1998-99 THE AO DETERMINED THE INCOME OF THE ASSESSEE AT RS.8,49,50 0/- AGAINST THE RETURNED INCOME OF RS.3,19,740/-. IN THE ASSESSMENT ORDER, THE AO MAD E ADDITION ON NINE ISSUES AND WAS OF THE OPINION THAT ALL THESE ADDITIONS AMOUNTED TO C ONCEALMENT AND FURNISHING OF INACCURATE PARTICULARS BY THE ASSESSEE, HE, THEREFO RE, CALCULATED THE TAX SOUGHT TO BE EVADED AT RS.1,60,928/- AND LEVIED PENALTY U/S. 271 (1)(C) @ 200% OF RS.1,60,928/- AMOUNTING TO RS.3,21,856/-. IN APPEAL, THE LD. CIT (A) DELETED THE PENALTY AS LEVIED BY THE AO. IN RESPECT OF ASSESSMENT YEAR 1999-200, FA CTS ARE THAT IN THE INSTANT CASE ADDITIONS WERE MADE IN 20 INSTANCES BY THE AO AND O N APPEAL, THE LD. CIT(A) DELETED 19 ADDITIONS AND PARTLY CONFIRMED THE KVP INTEREST. AGGRIEVED BY THESE ORDERS, NOW THE REVENUE ARE IN APPEALS BEFORE US. 2 4. AT THE TIME OF HEARING BEFORE US, THE LD. DR SUBMIT TED THAT THE LD. CIT(A) ON BOTH THE OCCASIONS HAVE ALLOWED THE ASSESSEES APPE AL BY ADMITTING NEW EVIDENCE DURING THE COURSE OF APPELLATE PROCEEDINGS IN VIOLA TION OF THE PROVISIONS OF RULE 46 OF THE I. T. RULES WITHOUT ALLOWING REASONABLE OPPORTU NITY TO THE AO. THEREFORE, ON BOTH THE YEARS, THE ORDERS OF THE LD. CIT(A) MAY BE SET ASIDE. 5. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSES SEE HEAVILY RELIED ON THE ORDERS OF THE LOWER AUTHORITIES AND URGED BEFORE THE BENCH TO CONFIRM THE SAME. 6. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. WE FIND THAT THE LD. CI T(A) DELETED THE PENALTY SINCE IN THE QUANTUM APPEAL ADDITIONS HAVE BEEN DELETED. THEREF ORE, WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) IN DELETING THE PENALTY IMP OSED U/S. 271(1)(C) OF THE I. T. ACT. THEREFORE, THE APPEAL FOR ASSESSMENT YEAR 1998-99 I S HEREBY DISMISSED. SO FAR AS THE ASSESSMENT YEAR 1999-2000 IS CONCERN ED, WE FIND THAT AT THE TIME OF HEARING BEFORE US, NO CASE WAS MADE OUT BY THE REVE NUE THAT CIT(A) HAS VIOLATED THE PROVISIONS OF RULE 46A OF THE I. T. RULES. WE ALS O FIND THAT RELIEF HAS BEEN GIVEN BY THE LD. CIT(A) BY PASSING A WELL REASONED ORDER WHI CH DOES NOT REQUIRE ANY INTERFERENCE ON OUR PART. THE SAME IS, THEREFORE, U PHELD. THE APPEALS OF THE REVENUE ARE DISMISSED. 7. IN THE RESULT, THE APPEALS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28.5.10 SD/- SD/- (C. D. RAO) (D. K. TYAGI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED :28TH MAY, 2010 COPY TO : 1. ACIT, CIRCLE-24, KOLKATA. 2. SMT. MUKTI CHATTERJEE & SRI DIPANKAR BANERJEE, L/R OF LATE ANIMA BANERJEE, BANKIMPALLY, MADHYAMGRAM, 24 PARGANAS (N) 3. CIT(A), , KOLKATA. 4. CIT, , KOLKATA. 5. D.R., ITAT, KOLKATA. TRUE COPY BY ORDER DEPUTY REGISTRAR JD.(SR.P.S.) I.T.AT., KOLKATA