Nangteswar Co - Operative Labour Contract and Construction Society Ltd., Burdwan V. A.C.I.T Rg - 2,Burdwan, Burdwan

ITA 557/KOL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100030 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 7 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 15-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: UDAY KR SANKAR A
• Keywords: Opportunity of being heard; Reasonable cause; Non compliance
• Section: 273B; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 557 / KOL / 2013 ASSESSMENT YEAR :2006-07 NANGTESWAR CO-OPERATIVE LABOUR, CONTRACT AND CONSTRUCTION SOCIETY LTD., VILL. BABLADIHI, P.O. THANGAPARA, DIST.BURDWAN PIN-713 143 [ PAN NO. AAABN 0075 G ] V/S . ACIT, RANGE-2, BURDWAN, COURT COMPOUND, DIST. BURDWAN 713 101 /APPELLANT .. / RESPONDENT /BY APPELLANT NONE /BY RESPONDENT SHRI UDAY KR. SANKAR, ACIT-DR /DATE OF HEARING 12-10-2015 /DATE OF PRONOUNCEMENT 06-11-2015 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE ASSESSEE IS ARISING OUT OF ORD ER OF COMMISSIONER OF INCOME TAX (APPEALS)DURGAPUR IN APPEAL NO.22/CIT(A) /ASL/CIR-2/BWN/2009- 10 DATED 22.01.2013. ASSESSMENT WAS FRAMED BY ITO W ARD-2(2), BURDWAN U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 17.12.2008 FOR ASSESSMENT YEAR 2006-07. THE PENALTY PROCEEDINGS U/S 271E OF THE ACT WAS LEVIED BY ACIT, RANGE-2, BURDWAN VIDE HIS ORDER DATED 19.06.2009. ITA NO.557/KOL/2013 A.Y. 2006-07 NANGTESWAR CO-OP. LABOUR V. ACIT, RANGE-2 BWD PAGE 2 2. AT THE TIME OF HEARING WE FOUND THAT NONE APPEAR ED ON BEHALF OF ASSESSEE, HOWEVER, WE PROCEEDED TO ADJUDICATE THE A PPEAL AS THE DISPUTE IN THE APPEAL WAS NOT SIGNIFICANT ENOUGH REQUIRING THE APPEARANCE OF THE ASSESSEE, AFTER HEARING LD. DR, SHRI UDAY KR. SANKA R APPEARING ON BEHALF OF REVENUE. 3. THE ISSUE RAISED BY ASSESSEE IN THIS APPEAL IS T HAT LD. CIT(A) HAS ERRED IN CONFIRMING THE PENALTY ORDER PASSED BY ACIT BURD WAN U/S271E OF THE ACT. 4. BRIEFLY STATED FACTS ARE THAT ASSESSEE IS A CO-O PERATIVE SOCIETY AND IS INTO THE BUSINESS OF EXECUTION OF CONTRACT JOB. DUR ING THE ASSESSMENT PROCEEDING, IT WAS FOUND BY ASSESSING OFFICER THAT ASSESSEE HAS REPAID TEMPORARY DEPOSITS AMOUNTING TO RS. 1.69 LAKH IN CA SH. THE AO OBSERVED THAT THERE IS A CLEAR VIOLATION OF SECTION 269T OF THE A CT. ON QUESTION BY AO FROM THE ASSESSEE FOR THE VIOLATION OF PROVISIONS OF SAI D 269T OF THE ACT, ASSESSEE COULD NOT PROVIDE ANY SATISFACTORY REPLY. ACCORDING LY, AO LEVIED THE PENALTY U/S. 271E OF THE ACT. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WHERE THE LD. AR PLEADED THAT THE CREDITORS DO NOT HAVE ANY BANK ACCOUNT AS THERE WAS NO BANK BRANCH SITUATED WITHIN THE LOCALITY. THEREFORE, THERE EXISTS REASONABLE CAUSE EXIST FOR VIOLATION O F THE STATUTORY PROVISION OF THE SECTION 269T OF THE ACT IN TERMS OF SECTION 273 B OF THE ACT. HOWEVER, LD. CIT(A) DISREGARDED THE PLEA OF AR AND CONFIRMED THE PENALTY ORDER IMPOSED BY AO. 5. AGGRIEVED, NOW ASSESSEE IS IN SECOND APPEAL BEFO RE US. 6. WE HAVE HEARD LD. DR AND PERUSED THE MATERIALS A VAILABLE ON RECORD. BEFORE US, LD. DR RELIED ON THE ORDERS OF AUTHORITI ES BELOW. WE FIND FROM THE AFORESAID DISCUSSION THAT PENALTY WAS LEVIED BY AO AND CONFIRMED BY LD. CIT(A) ON ACCOUNT OF VIOLATION OF SEC. 269T OF THE ACT. AS PER THIS SECTION, IT IS ITA NO.557/KOL/2013 A.Y. 2006-07 NANGTESWAR CO-OP. LABOUR V. ACIT, RANGE-2 BWD PAGE 3 PROHIBITED TO GIVE OR ACCEPT THE LOAN IN CASH AND A CCORDINGLY AO IMPOSED THE PENALTY U/S 271E. IT IS OBSERVED FROM THE ORDER OF LD. CIT(A) THAT LD. AR PLEADED THAT THERE WAS NO BANK BRANCH IN THE LOCALI TY AND THE LOAN PARTIES WERE NOT HAVING ANY BANK ACCOUNT SO THERE WAS NO OP TION AVAILABLE TO THE ASSESSEE EXCEPT TO MAKE THE PAYMENT IN CASH. THIS P LEA OF LD. AR HAD NOT BEEN ACCEPTED BY AUTHORITIES BELOW. HOWEVER THE SEC TION 273B OF THE ACT PROVIDE IMMUNITY FROM THE PENALTY PROVISIONS IN CER TAIN CASES AND WHICH READS AS UNDER:- 273B. NOTWITHSTANDING ANYTHING CONTAINED IN THE PR OVISIONS OF [CLAUSE(B) OF SUB-SECTION (1) OF] [SECTION 271, SEC TION 271A, [SECTION 271AA] SECTION 271B [SECTION 271BA], [SECTION 271BB ], SECTION 271C, [SECTION 271CA,] SECTION 271D, SECTION 271E, [SECTI ON 271F, [SECTION 271FA,] [SECTION 271FAB,] [SECTION 271FB,] [SECTION 271G,]] [SECTION 271GA,] [SECTION 271H,] [SECTION 271-I,] CLAUSE (C) OR CLAUSE (D) OF SUB- SECTION (1) OR SUB-SECTION (2) OF SECTION 272A, SUB -SECTION (1) OF SECTION 272AA] OR [SECTION 272B OR] [SUB-SECTION (1) [OR SU B-SECTION (1A] OF SECTION 272BB OR] [SUB-SECTION (1) OF SECTION 272BB B OR] CLAUSE (B) OF SUB-SECTION (1) OR CLAUSE (B) OR CLAUSE (C) OF SUB- SECTION (2) OF SECTION 273, NO PENALTY SHALL BE IMPOSABLE ON THE PERSON OR THE ASSESSEE, AS THE CASE MAY BE, FOR ANY FAILURE REFERRED TO IN THE SAID PROVISIONS IF HE PROVES THAT THERE WAS REASONABLE CAUSE [OF THE SAID FAILURE,] WE FIND FROM THE AFORESAID SECTION THAT PENALTY IS NOT TO BE LEVIED IN CASE THERE IS REASONABLE CAUSE ON THE PART OF ASSESSEE F OR NON COMPLIANCE OF THE PROVISION OF THE SEC. 269T /271E OF THE ACT. IN OUR VIEW THE CONTENTION OF THE ASSESSEE THAT THERE WAS NO BANK BRANCH IN THE LOCAL ITY AND THE PARTIES WERE NOT HAVING THE BANK ACCOUNTS AND THE LD. CIT(A) HAS JUST DISREGARDED THE CLAIM OF ASSESSEE WITHOUT GOING INTO MERITS. THEREF ORE, WE ARE OPINED THAT THE CONTENTION OF THE ASSESSEE HAS NOT BEEN ADJUDICATED BY THE AUTHORITIES BELOW. SO WE ARE INCLINED TO REMIT THIS MATTER BACK TO THE FILE OF AO FOR FRESH ADJUDICATION AS PER LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD. WE ALSO DIRECT THE AO TO ENSURE THAT WHETHER THERE EXISTS ANY BANKING FACILITY OR NOT. IT IS ALSO IMPORTANT TO NOTE THAT ASSESSEE SHOULD CO-OPERATE IN ITA NO.557/KOL/2013 A.Y. 2006-07 NANGTESWAR CO-OP. LABOUR V. ACIT, RANGE-2 BWD PAGE 4 ASSESSMENT PROCEEDINGS. IN TERMS OF THE ABOVE, APPE AL IS ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT 06/ 11/2015 SD/- SD/- (MAHAVIR SINGH) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP !- 06 /1 1 /2015 / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT-NANGTESWAR CO-OP. LABOUR CONTRACT & CO NSTRUCTION SOCIETY LTD. VILL BABLADI HI, P.O.THANGAPARA, DIST. BURDWAN 713143 2. / RESPONDENT-ACIT, RANGE-2, BURDWAN, COURT COMPOUN D, DIST. BURDWAN 3. * +, - - . / CONCERNED CIT BURDWAN 4. - - .- / CIT (A) DURGAPUR 5. 012 33+,, - +, , / DR, ITAT, KOLKATA 6. 267 89 / GUARD FILE. BY ORDER/ - , /TRUE COPY/ / - +, ,