Sri Sanjay Mehta, Kolkata V. The Addl. CIT, Range-36, Kolkata, Kolkata

ITA 45/KOL/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 5903 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 09-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAAURABH KUMAR CITSRDR
• Assessee Lawyers: ANIKESH BANERJEE
• Keywords: Reasonable cause
• Section: 133(6)

Judgement Text

, C , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 44 - 46 / KOL / 20 17 ASSESSMENT YEARS :2011-12, 2013- 14 & 2014-15 SRI SANJAY MEHTA, C/O M/S SUNNY SALES, 29/1C BENTICK STREET, KOLKATA-700001 [ PAN NO.AERPM 0968 G ] V/S . ADDL. CIT, RANGE-36, AAYAKAR BHAWAN POORVA, 110, SHANTI PALLY, KOLKATA-700107 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI ANIKESH BANERJEE, ADVOCATE /BY RESPONDENT SHRI SAAURABH KUMAR, ADDL. CIT-SR-DR /DATE OF HEARING 10-07-2018 /DATE OF PRONOUNCEMENT 25-07-2018 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THESE THREE ASSESSEES APPEALS FOR ASSESSMENT YEARS 2011-12, 2013-14 & 2014-15 ARISE AGAINST COMMISSIONER OF INC OME TAX (APPEALS)-10, KOLKATAS ORDERS; ALL DATED 01.09.20 16, PASSED IN CASE NO.288-290/CIT(A)-10/R/36/15-16/KOL UPHOLDING ASSES SING OFFICERS ACTION(S) IMPOSING IDENTICAL PENALTY OF 12,400 EACH, IN PROCEEDINGS U/S. 272A(C) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. ITA NO.44-46/KOL/2017 AYS 11-12, 1 3-14 &14-15 SH SANJAY MEHTA VS. ACIT, RG-36, KOL. PAGE 2 2. BOTH THE LEARNED REPRESENTATIVES STATE AT THE OU TSET THAT ALL THE THREE INSTANT CASES RAISE SOLE SUBSTANTIVE ISSUE OF CORRECTNESS OF BOTH THE LOWER AUTHORITIES IDENTICAL ACTION PENALIZING THE TAXPAYER U/S. 272A(2)(C) OF THE ACT ON ACCOUNT OF HIS ALLEGED FA ILURE TO ANSWER / FURNISH NECESSARY INFORMATION TO THE ASSESSING OFFI CER IN RESPONSE TO SECTION 133(6) NOTICE. THE SAID COMMON NOTICE DATE D 10.09.2015 SOUGHT ASSESSEES NECESSARY INFORMATION FROM THE AS SESSEE SEEKING DETAILS OF ALLEGED BOGUS LONG TERM CAPITAL GAINS AN D SHORT TERM CAPITAL LOSS IN ALL THREE ASSESSMENT YEARS AS PER THE DGIT( INV) KOLKATAS INVESTIGATION. BOTH THE LOWER AUTHORITIES IMPOSED T HE IMPUGNED PENALTY FROM 07.10.2015 ALLEGING DEFAULT OF 124 DAYS TILL T HE IDENTICAL PENALTY ORDER(S); ALL DATED 08.12.2016 @ 100/- PER DAY AS UPHELD IN LOWER APPELLATE PROCEEDINGS. 3. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL CONTENTIONS. LEARNED DEPARTMENT REPRESENTATIVE STRONGLY SUPPORTS BOTH THE LOWER AUTHORITIES ACTION. HE REITERATES THE FACT THAT AS SESSEE HAD NOT FILED THE RELEVANT DETAILS IN FURTHERANCE U/S. 133(6) NOTICE WHICH ATTRACTS THAT THE IMPUGNED PENAL ACTION AS PER THE ACT. WE FIND NO ME RIT IN THE REVENUES ARGUMENT. THE FACT REMAINS THAT THE ASSESSEE HAD FU RNISHED THE NECESSARY INFORMATION AVAILABLE TO HIM ON 09.10.201 5 EXPLAINING THEREIN THAT HIS RETURN FILED CONTAINED ALL THE RELEVANT IN FORMATION INCLUDING THAT OF COMPUTATION OF LONG TERM CAPITAL GAINS AS SOUGHT FO R BY THE ASSESSING OFFICER. HE HAD FURTHER ASKED FOR THE INVESTIGATION REPORT COMING FROM THE DGIT (INV) WING TO THE ASSESSING OFFICER. IT IS ASS ESSEES SAID REPLY WHICH HAS INVITED THE IMPUGNED PENAL ACTION. WE SEE NO SUBSTANCE TO UPHOLD THE IMPUGNED PENALTY IN THESE CIRCUMSTANCES AS THE FACT THAT ASSESSEE HAD ALREADY FILED NECESSARY COMPUTATION DE TAILS OF ITS CAPITAL GAINS AT THE FIRST INSTANCE ITSELF GONE UNREBUTTED FROM THE REVENUE SIDE. ITA NO.44-46/KOL/2017 AYS 11-12, 1 3-14 &14-15 SH SANJAY MEHTA VS. ACIT, RG-36, KOL. PAGE 3 THERE IS FURTHER NO MATERIAL IN THE CASES FILE WHIC H COULD INDICATE TREATMENT OF THE ABOVE CAPITAL GAINS TO BE BOGUS TR ANSACTIONS. WE THEREFORE DIRECT THE ASSESSING OFFICER TO DELETE AL L THE PENALTY UNDER CHALLENGE AS THE ASSESSEE HAS BEEN ABLE TO MAKE OUT THE REASONABLE CAUSE FOR HAVING NOT RESPONDED TO SECTION 133(6) NO TICE IN ENTIRETY. 4. THESE ASSESSEES APPEALS ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT 25/07/2018 SD/- SD/- ( ) (( ) (DR. A.L. SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP, SR.P.S )- 25 / 07 /201 8 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-SRI SANJAY MEHTA, C/O M/S SUNNY SALES, 29 /1C BENTICK ST. KOLKATA-001 2. /REVENUE-ACIT, RANGE-36, AAYAKA BHAWAN,POORVA,110, SHANTI PALLY, KOLKATA-107 3. 4 5 / CONCERNED CIT KOLKATA 4. 5- / CIT (A) KOLKATA 5. 8 ((4, 4, / DR, ITAT, KOLKATA 6. = / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO 4,