Brij Bhushan Singh, Kolkata V. ITO,WD-22(1), KOLKATA, Kolkata

ITA 498/KOL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1461 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 21-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M D SHAH SHRI ARINDAM B
• Assessee Lawyers: T VARKEY JUDIC IA L M EMBER
• Keywords: Salary income
• Section: 143(3)

Judgement Text

, D , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D KOLKATA BEFORE SHRI ABY.T VARKEY, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 498 / KOL / 2016 ASSESSMENT YEAR :2007-08 BRIJ BHUSHAN SINGH C/O D J SHAH & CO KALYAN BHAVAN, 2 ELGIN ROAD, KOLKATA-20 [ PAN NO.ADIPS 9170 Q ] V/S . ITO WARD-22(1), 8 TH FLOOR, BAMBOO VILLA, KOLKATA-14 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI M.D. SHAH, /BY RESPONDENT SHRI ARINDAM BHATTACHERJEE, ADDL. CIT-DR /DATE OF HEARING 06-02-2018 /DATE OF PRONOUNCEMENT 21-02-2018 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-18, KOLKATA DA TED 27.01.2016. ASSESSMENT WAS FRAMED BY ITO WARD-22(1), KOLKATA U/ S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) VIDE HIS ORDER DATED 31.12.2009 FOR ASSESSMENT YEAR 2007-08. SHRI M.D. SHAH, LD. AUTHORIZED REPRESENTATIVE APPEA RED ON BEHALF OF ASSESSEE AND SHRI ARIINDAM BHATTACHRJEE, LD. DEPART MENTAL REPRESENTATIVE APPEARED ON BEHALF OF REVENUE. ITA NO.498/KOL/2016 A.Y. 2007- 08 BRIJ BHUSHAN SINGH VS. ITO WD-22(1), KOL. PAGE 2 2. IN THIS APPEAL THE ASSESSEE HAS CHALLENGED THE ORDER PASSED BY LD. CIT(A) WHO CONFIRMED THE ORDER OF ASSESSING OFFICER FOR IMPOSING THE PENALTY ON THE ASSESSEE U/S 271(1)(C) OF THE INCOME TAX ACT , 1961 (ACT). 3. THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL & DERIVING HIS INCOME FROM SALARY, PENSION & OTHER SOURCES. TH E ASSESSEE FILED HIS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION D ECLARING TOTAL INCOME OF RS.4,18,393/- ONLY. IN THE COURSE OF ASSESSMENT PR OCEEDINGS, THE AO MADE CERTAIN ADDITIONS AS DETAILED UNDER : I) UNEXPLAINED DEPOSITS IN BANK OF INDIA, A/C NO. 6 23224 RS. 1,84,000.00 II) UNEXPLAINED DEPOSITS IN SYNDICATE BANK RS. 3,16 ,957.00 III) UNEXPLAINED DEPOSITS IN BANK OF INDIA A/C NO. 623224 RS. 2,00,000.00 THUS THE SUM OF RS.7,00,957/- WAS ADDED TO THE TOTA L INCOME OF THE ASSESSEE BY THE AO AS INCOME NOT DISCLOSED. IN RESPECT OF TH E AFORESAID ADDITION MADE IN THE COURSE OF ASSESSMENT PROCEEDINGS THE AO INIT IATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT. THE AO IMPOSED PENALTY HO LDING THAT THE ASSESSEE HAS VIOLATED THE PROVISION OF LAW ENUMERATED IN SEC TION 271(1)(C) OF THE ACT BY CONCEALING PARTICULARS OF INCOME AND IMPOSED PEN ALTY U/S 271(1)(C) OF THE ACT AND LD.CIT(A) CONFIRMED THE ORDER OF AO. 4. AGGRIEVED BY THIS ASSESSEE IS IN APPEAL BEFORE T HE TRIBUNAL. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED BEFORE US THAT T HE SHOW CAUSE NOTICE ISSUED U/S 274 OF THE ACT BEFORE IMPOSING PENALTY D OES NOT CONTAIN THE SPECIFIC CHARGE AGAINST THE ASSESSEE NAMELY AS TO W HETHER THE ASSESSEE WAS GUILTY OF HAVING CONCEALED PARTICULARS OF INCOME OR HAVING FURNISHED INACCURATE PARTICULARS OF INCOME. A COPY OF THE SHO W CAUSE NOTICE U/S 274 OF THE ACT IS PLACED ON RECORD. ON PERUSAL OF THE SAME IT WAS REVEALED THAT AO HAS NOT STRUCK OUT THE IRRELEVANT PORTION IN THE SH OW CAUSE NOTICE AND ITA NO.498/KOL/2016 A.Y. 2007- 08 BRIJ BHUSHAN SINGH VS. ITO WD-22(1), KOL. PAGE 3 THEREFORE THE SHOW CAUSE NOTICE DOES NOT SPECIFY TH E CHARGE AGAINST THE ASSESSEE AS TO WHETHER THE CHARGE IS OF CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. SSAS EMERALD MEADOWS IN ITA NO.380 OF 2015 DATED 23.11.2015 WHEREIN THE HONBLE KARNATAKA HIGH COURT FOLLOWING ITS OWN DECISION IN THE CASE OF CIT VS MANJUNATHA COTTON AND GINNING FACTORY (2013) 359 ITR 565 TOOK A VIEW THAT IMPOSING OF PENALTY U/ S 271(1)(C) OF THE ACT IS BAD IN LAW AND INVALID FOR THE REASON THAT THE SHOW CAUSE NOTICE U/S 274 OF THE ACT DOES NOT SPECIFY THE CHARGE AGAINST THE ASSESSE E AS TO WHETHER IT IS FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE LD. COUNSEL FURTHER BROUGHT TO OUR NOTI CE THAT AS AGAINST THE DECISION OF THE HONBLE KARNATAKA HIGH COURT THE RE VENUE PREFERRED AN APPEAL IN SLP IN CC NO.11485 OF 2016 AND THE HONBLE SUPRE ME COURT BY ITS ORDER DATED 05.08.2016 DISMISSED THE SLP PREFERRED BY THE DEPARTMENT. THE LD. COUNSEL ALSO BROUGHT TO OUR NOTICE THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS SHRI SAMSON PERINCHERY IN ITA NO.1154 OF 2014 DATED 05.01.2017 WHEREIN THE HONBLE BOMBAY HIGH CO URT FOLLOWING THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON AND GINNING FACTORY (SUPRA) CAME TO THE CONCLUSION THAT IMPOSITION OF PENALTY ON DEFECTIVE SHOW CAUSE NOTICE WITHOUT SPEC IFYING THE CHARGE AGAINST THE ASSESSEE CANNOT BE SUSTAINED. OUR ATTENTION WAS ALSO DRAWN TO THE DECISION OF ITAT IN THE CASE OF SUVAPRASANNA BHATTA CHARYA VS ACIT IN ITA NO.1303/KOL/2010 DATED 06.11.2015 WHEREIN IDENTICAL PROPOSITION HAS BEEN FOLLOWED BY THE TRIBUNAL. THE LD. DR RELIED ON THE ORDER OF CIT(A). 5. WE HAVE ALREADY OBSERVED THAT THE SHOW CAUSE NOTICE ISSUED IN THE PRESENT CASE U/S 274 OF THE ACT DOES NOT SPECIFY TH E CHARGE AGAINST THE ASSESSEE AS TO WHETHER IT IS FOR CONCEALING PARTICU LARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. THE SHOW CAUSE NO TICE U/S 274 OF THE ACT DOES NOT STRIKE OUT THE INAPPROPRIATE WORDS. IN THE SE CIRCUMSTANCES, WE ARE OF ITA NO.498/KOL/2016 A.Y. 2007- 08 BRIJ BHUSHAN SINGH VS. ITO WD-22(1), KOL. PAGE 4 THE VIEW THAT IMPOSITION OF PENALTY CANNOT BE SUSTA INED. THE PLEA OF THE LD. COUNSEL FOR THE ASSESSEE WHICH IS BASED ON THE DECI SIONS REFERRED TO IN THE EARLIER PART OF THIS ORDER HAS TO BE ACCEPTED. RESP ECTFULLY FOLLOWING THE BINDING OF THIS JUDGMENT WE THEREFORE HOLD THAT IMPOSITION OF PENALTY IN THE PRESENT CASE CANNOT BE SUSTAINED AND THE SAME IS DIRECTED T O BE CANCELLED. HENCE, THIS GROUND OF ASSESSEES APPEAL IS ALLOWED. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT 21/ 02/2018 SD/- SD/- (ABY. T. VARKEY) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP #- 21 / 02 /201 8 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-BRIJ BHUSHAN SINGH, C/O D J SHAH & CO KA LYAN BHAVAN, 2 ELGIN ROAD, KOLK ATA-20 2. /RESPONDENT-ITO, WARD-22(1), 8 TH , FL, BAMBOO VILA, KOLKATA-14 3. / 0 / CONCERNED CIT KOLKATA 4. 0- / CIT (A) KOLKATA 5. 3 66/, /, / DR, ITAT, KOLKATA 6. 9 / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO /,