Prasanta Kumar Das, Cuttack V. ITO, Ward-2(2), Cuttack, Cuttack

ITA 436/CTK/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7558 (ITAT-CUTTACK)
• Duration Of Justice: 2 year(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 21-11-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 17-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B N DASH
• Assessee Lawyers: P R MOHANTY
• Section: 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK SMC BENCH, CUTTACK BEFORE SHRI N.S SAINI, ACCOUNTANT MEMBER ITA NO. 436/CTK/2014 ASSESSMENT YEAR : 2009 - 2010 SRI PRASANTA KUMAR DAS, GANDHARBA SCHOOL LANE, NAYA BAZAR, CUTTACK `VS ITO, WARD 2(2), CUTTACK PAN/GIR NO. (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI P.R.MOHANTY, AR REVENUE BY : SHRI B.N.DASH, DR DATE OF HEARING : 21 /11 / 2016 DATE OF PRONOUNCEMENT : 21 /11 / 2016 O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - CUTTACK, DATED 2.7.2014, FOR THE ASSESSMENT YEAR 2009 - 2010. 2. THE SOLE ISSUE INVOLVED IN THIS APPEAL IS THAT THE LD CIT() ERRED IN CONFIRMING THE LEVY OF PENALTY OF RS.10,000/ - U/S.271(1)(B) OF THE I.T.ACT, 1961. 3. BRIEF FACTS OF TH E CASE ARE THAT THE ASSESSING OFFICER ISSUED NOTICE U/S.142(1) OF THE ACT REQUIRING THE ASSESSEE TO PRODUCE THE BOOKS OF ACCOUNT 2 ITA NO. 436/CTK/2014 ASSESSMENT YEAR :2009 - 2010 AND OTHER DETAILS. SHRI PANKAJ KUMAR NAYAK, LD A.R. OF THE ASSESSEE APPEARED BEFORE THE ASSESSING OFFICER ON 3.11.2011 AND FIL ED COPY OF AUDIT REPORT AND COPY OF TDS CERTIFICATE. SINCE THE ASSESSEE DID NOT PRODUCE THE BOOKS OF ACCOUNT, BILLS AND VOUCHERS, THE ASSESSING OFFICER TREATED THE SAME AS FAILURE OF THE ASSESSEE TO COMPLY THE DEPARTMENTAL STATUTORY NOTICES AND, THEREFORE , LEVIED PENALTY OF RS.10,000/ - U/S.271(1)(B) OF THE ACT. 4. ON APPEAL, LD CIT(A) CONFIRMED THE PENALTY LEVIED BY THE ASSESSING OFFICER. 5. BEFORE ME, LD A.R. OF THE ASSESSEE SUBMITTED THAT LD A.R. OF THE ASSESSEE HAD APPEARED BEFORE THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND FILED SOME OF THE DETAILS WHICH HAS BEEN ACCEPTED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER. THE BOOKS OF ACCOUNT WERE NOT PRODUCED AS THE SAME WERE NOT MAINTAINED BY THE ASSESSEE. HE ARGUED THAT THE RE ARE SEPARATE PROVISIONS IN THE INCOME TAX ACT FOR DEALING IN CASES WHERE THE ASSESSEE FAILS TO MAINTAIN THE BOOKS OF ACCOUNT PRESCRIBED UNDER THE INCOME TAX RULES AND FOR NOT PRODUCING THE BOOKS OF ACCOUNT, ETC BEFORE THE ASSESSING OFFICER. THE ASSESSI NG OFFICER CAN PENALISE THE ASSESSEE UNDER THOSE SECTIONS BUT HE CANNOT LEVY PENALTY U/S.271(1)(B) OF THE ACT, WHICH IS LEVIABLE FOR NON - COMPLIANCE OF NOTICES U/S . 142(1) AND 143(2) OF THE ACT. HENCE, HE PRAYED THAT THE PENALTY SHOULD BE DELETED. 3 ITA NO. 436/CTK/2014 ASSESSMENT YEAR :2009 - 2010 6. ON THE OTHER HAND, LD D.R. SUPPORTED THE ORDERS OF LOWER AUTHORITIES. 7. AFTER HEARING THE RIVAL SUBMISSIONS AND PERUSING THE ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD, I FIND FROM THE ASSESSMENT ORDER THAT THE ASSESSING OFFICER HAS STATE D IN HIS ORDER THAT BEFORE HIM THE LD A.R. OF THE ASSESSEE APPEARED ON 3.11.2011 IN PURSUANCE TO NOTICE U/S.142 ( 1) OF THE ACT. THE ASSESSING OFFICER ALSO ADMITS IN THE ASSESSMENT ORDER THAT LD A.R. FILED COPY OF AUDIT REPORT AND TDS CERTIFICATE IN PURSUAN CE TO NOTICE S U/S.142(1) AND 143(2) OF THE ACT. THE ONLY GROUND ON WHICH PENALTY U/S.271(1)(B) OF THE ACT HAS BEEN LEVIED BY THE ASSESSING OFFICER IS THAT THE ASSESSEE FAILED TO PRODUCE BOOKS OF ACCOUNT AND OTHER DOCUMENTS BEFORE HIM. IN MY CONSIDERED OPI NION, FOR NOT MAINTAINING THE BOOKS OF ACCOUNT AND OTHER DOCUMENTS AS PRESCRIBED U/S.44AA, THE INCOME TAX ACT PRESCRIBES FOR LEVY OF PENALTY U/S.271A OF THE ACT BUT PENALTY U/S.271(1)(B) OF THE ACT IS NOT LEVIABLE FOR THE SAME AS THE SECTION PROVIDES FOR L EVY OF PENALTY WHERE THE ASSESSEE FAILS TO COMPLY WITH THE NOTICES U/S.142(1) AND 143(2) OF THE ACT. THEREFORE, I SET ASIDE THE ORDERS OF LOWER AUTHORITIES AND DELETE THE PENALTY U/S.271(1)(B) OF THE ACT AND ALLOW GROUNDS OF APPEAL FILED BY THE ASSESSEE. 4 ITA NO. 436/CTK/2014 ASSESSMENT YEAR :2009 - 2010 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCE D IN THE OPEN COURT ON 21/ 11 /2016 IN THE PRESENCE OF PARTIE S. SD/ - ( N.S SAINI) A CCOUNTANT MEMBER CUTTACK; DATED 21 /11 /2016 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER, ASST.REGISTRAR, ITAT, CUTTACK 1. THE APPELLANT : SRI PRASANTA KUMAR DAS, GANDHARBA SCHOOL LANE, NAYA BAZAR, CUTTACK 2. THE RESPONDENT. ITO, WARD 2(2), CUTTACK 3. THE CIT(A) CUTTACK 4. CIT , CUTTACK 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//