M/s. Sankalpa, Bhubaneswar V. ITO, Ward-1(1). Bhubaneswar, Bhubaneswar

ITA 554/CTK/2013

• Counselvise Citation: 55422114 RSA 2013
• Duration Of Justice: 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 05-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S C MOHANTY
• Assessee Lawyers: BIVEKANANDA MOHANTY

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH, CUTTACK . . , . . , BEFORE SHRI P.K.BANSAL , AM & SHRI D.T.GARASIA , JM ./ ITA NO. 5 54 / C TK /20 1 3 ( / ASSESSMENT YEAR : 20 05 - 06 ) M/S SANKALPA, PLOT NO. VI - B, 3/1, UNIT - 3, KHARAVELA NAGAR, BHUBANESWAR - 751 001 VS. ITO, WARD - 1(1) , BHUBANESWAR ./ ./ PAN/GIR NO. : A BAFS 3436 R ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI BIVEKANANDA MOHANTY /REVENUE BY : SHRI S.C.MOHANTY / DATE OF HEARING : 1 ST MAY , 201 4 / DATE OF PRONOUNCEMENT : 02/05 /2014 / O R D E R PER BENCH : TH IS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT ( A ) DATED 17 - 9 - 2013 BY WHICH THE CIT(A) HAS CONFIRMED THE ORDER OF THE AO LEVYING THE PENALTY OF THE ASSESSEE U/S. 271(1)(C) . 2 . WE HEARD RIVAL SUBMISSIONS AND CAR EFULLY CONSIDERED THE SAME ALONG WITH THE ORDERS OF THE TAX AUTHORITIES BELOW. WE NOTED THE AO LEVIED PENALTY ON THE ASSESSEE NOT ONLY FOR CONCEALING THE PARTICULARS OF THE INCOME BUT ALSO FOR FURNISHING THE INACCURATE PARTICULARS OF INCOME. SECTION 271(1) (C) REQUIRES THAT THERE MUST BE SPECIFIC DETAIL FOR WHICH PENALTY SHOULD BE IMPOSED ON THE ASSESSEE. THE DETAIL SHOULD BE EITHER CONCEALMENT OF PARTICULAR OF INCOME OR FILING OF THE INACCURATE PARTICULARS OF INCOME. THE ORDER OF PENALTY MU ST CLEARLY STATES AS TO 2 ITA NO. 5 5 4 /CTK /201 3 WHETHER IT IS FOR CONCEALMENT OR FURNISHING THE INACCURATE PARTICULARS. PENALTY CANNOT BE LEVIED FOR DEFAULT AND CONCEALMENT OF PARTICULARS OF INCOME. THE EXPLANATION 1 WILL APPLY AND ONUS WILL BE ON THE ASSESSEE TO PROVE THAT HE HAS NOT CONCEALED T HE PARTICULARS OF INCOME. WHILE IN THE CASE OF THE FILING THE INACCURATE PARTICULARS OF INCOME, THE ONUS IS ON THE REVENUE THAT THE ASSESSEE HAS FILED INACCURATE PARTICULARS . D ISALLOWANCE OF A CLAIM MADE BY THE ASSESSEE FOR WHICH THE ASSESSEE HAS FILED ALL THE PARTICULARS CANNOT BE RE GARDED THAT THE ASSESSEE HAS FILED THE INACCURATE PARTICULARS OF INCOME. THE CASE OF THE ASSESSEE IN OUR OPINION, IS DULY COVERED BY THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF RELIANCE PETROPRODUCTS PVT. LTD., (201 0) 322 ITR 158 (SC), CONFIRMING THE ORDER OF THE TRIBUNAL (WHICH WAS WRITTEN BY THE UNDERSIGNED WHEN HE WAS POSTED AT AHMEDABAD), AT PAGE 166 HAS HELD AS UNDER : - MERELY BECAUSE THE ASSESSEE HAD CLAIMED THE EXPENDITURE, WHICH CLAIM WAS NOT ACCEPTED OR WAS NOT ACCEPTABLE TO THE REVENUE, THAT BY ITSELF WOULD NOT, IN OUR OPINION, ATTRACT THE PENALTY UNDER SECTION 271(1)(C). IF WE ACCEPT THE CONTENTION OF THE REVENUE THEN IN CASE OF EVERY RETURN WHERE THE CLAIM MADE IS NOT ACCEPTED BY THE ASSESSING OFFICER FOR ANY REASON, THE ASSESSEE WILL INVITE PENALTY UNDER SECTION 271(1)(C). THAT IS CLEARLY NOT THE INTENDMENT OF THE LEGISLATURE. 3 . EVEN WE NOTED THAT THE HON BLE GUJARAT HIGH COURT IN THE CASE OF NEW SORATHIA ENGG. CO. , 282 ITR 642 , HAS TAKEN THE VIEW THA T THERE MUST BE CLEAR CUT FINDING WHICH OF THE DEFAULT HAS BEEN MADE BY THE ASSESSEE. THE PENALTY DOES NOT SPECIFY SPECIFIC DEFAULT IN THE CASE OF THE ASSESSEE. RESPECTFULLY FOLLOWING THE JUDGMENT OF THE HON BLE SUPREME COURT IN THE CASE OF RELIANCE PETROP RODUCTS (SUPRA) , WE SET 3 ITA NO. 5 5 4 /CTK /201 3 ASIDE THE ORDER OF THE CIT(A) AND DELETE THE PENALTY LEVIED BY THE AO U/S. 271(1)(C). 4 . IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 02/05 / 201 4 . 02/05 /2014 SD/ - SD/ - ( . . ) ( D.T.GARASIA ) ( . . ) ( P.K.BANSAL ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER CUTTACK ; DATED 02/05 /2014 . . /PKM , . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) , / ITAT, CUTTACK 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CI T(A) , BHUBANESWAR 4. / CIT , BHUBANESWAR 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//