Bijay Brata Kundu, Bangalore V. ITO, Ward- 3(1), Bhubaneswar

ITA 61/CTK/2020

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5708 (ITAT-CUTTACK)
• Duration Of Justice: 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 24-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 271(1)(c); 201; 274; 13

Judgement Text

P A G E 1 | 4 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK SMC BENCH, CUTTACK BEFORE SHRI CHANDRA MOHAN GARG , JUDICIAL MEMBER ITA NO . 61 /CTK/20 20 ASSESSMENT YEAR : 201 3 - 2014 BIJAY BRATA KUNDU, C/O - KAMAL KUNDU, DOOR B - 1202, 14 TH FLOOR, G BLOCK MERA HOMES, PO: KAGUGODI, WHITE FIELD, HOSKOTTE MAIN ROAD, BANGALORE - 560067 VS. INCOME TAX OFFICER, WARD 3(1), BHUBANESWAR. PAN/GIR NO. AKQPK 0668 Q (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI RAJAT KAR , AR REVENUE BY : SHRI SUBHENDU DUTTA, DR DATE OF HEARING : 13 / 0 2 / 20 20 DATE OF PRONOUNCEMENT : 13 / 0 2 / 2020 O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 28.6.2019 OF THE CIT(A) - 2 , BHUBANESWAR FOR THE ASSESSMENT YEAR 2013 - 14 . DELA Y OF 136 DAYS IS CONDONED KEEPING IN VIEW BONAFIDE CAUSE STATED IN THE APPLICATION. 2. THE ONLY GRIEVANCE IN THIS APPEAL IS THAT THE LD CIT(A) IS NOT JUSTIFIED IN CONFIRMING THE LEVY OF PENALTY OF RS.3,26,124/ - LEVIED BY THE AO U/S.271(1)(C) OF THE ACT. 3. AT THE TIME OF HEARING, LD A.R. OF THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER IS NOT SURE UNDER WHICH LIMB OF PROVISIONS OF SEC TION 271(1)(C) OF THE ACT, THE PENALTY IS TO BE LEVIED. HE HAS NOT STRUCK OFF ITA NO.61/CTK/2020 ASSESSMENT YEAR : 2013 - 2014 P A G E 2 | 4 THE INAPPROPRIATE WORDS IN THE NOTICE ISSUED FOR LEVY OF PENALTY. HENCE, IN VIEW OF THE DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS MANJUNATHA COTTON & GINN ING FACTORY, 359 ITR 565 (KAR), THE PENALTY LEVIED BY THE AO IS NOT EXIGIBLE. HE ALSO PRODUCED A DECISION OF ITAT CUTTACK IN THE CASE OF BHUBANESWAR CLUB VS DCIT IN ITA NO.349/CTK/2019 FOR A.Y. 2014 - 15 ORDER DATED 27.1.2020, WHEREIN, ON SIMILAR CIRCUMSTA NCES, THE PENALTY LEVIED BY THE AO IS DELETED. 4. REPLYING TO ABOVE, LD DR ONLY DUTIFULLY SUPPORTED THE ORDERS OF LOWER AUTHORITIES. 5. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RECORD OF THE CASE AS WELL AS THE DECISION RELIED ON BY LD COUNSEL F OR THE ASSESSEE. I HAVE ALSO PERUSED THE NOTICE DATED 15.11.2016 U/S.274 R.W.S 271 ISSUED BY THE AO, WHEREIN, I FIND THAT THE INAPPROPRIATE WORDS HAVE NOT BEEN STRUCK OFF, FROM WHICH, IT IS NOT UNDERSTOOD AS TO UNDER WHICH LIMB OF PROVISIONS OF SECTION 2 71(1)(C) OF THE ACT, THE AO HAS LEVIED THE PENALTY. I HAVE ALSO PERUSED THE ORDER OF THE TRIBUNAL, WHEREIN, ON SIMILAR FACTS AND CIRCUMSTANCES, THE PENALTY LEVIED U/S.271(1)(C) BY THE AO IS DELETED, INTER ALIA, OBSERVING AS UNDER: 5. WE HAVE HEARD THE R IVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD, INTER ALIA, NOTICES U/S.274 READ WITH SECTION 271(1)(C) OF THE ACT DATED 14.12.2016. WE FIND THE ONLY ISSUE TO BE DECIDED IN THE GROUNDS OF APPEAL IS REGARDING THE SUSTAINABLE OF PENALTY LEVIE D U/S 271(1)(C) WHEN THE INAPPROPRIATE WORDS IN THE NOTICE ISSUED U/S 274 R.W.S. 271 OF THE ACT HAVE NOT BEEN STRUCK OFF. A PERUSAL OF THE NOTICES ISSUED U/S 274 R.W.S. 271 DATED 14.12.2016 SHOW THAT THE INAPPROPRIATE WORDS IN THE SAID NOTICE HAVE NOT BEEN STRUCK OFF. EVEN THE LAST LINE OF THE SAID NOTICE ONLY SPEAKS OF SECTION 271 AND DOES NOT EVEN MENTION OF SECTION 271(1)(C) OF THE I.T. ACT. IT IS PERTINENT TO NOTE HERE THAT THE PENALTY ORDER IS BASED ON FURNISHING OF INACCURATE PARTICULARS BUT THE NOT ICE IS NOT SPECIFYING ITA NO.61/CTK/2020 ASSESSMENT YEAR : 2013 - 2014 P A G E 3 | 4 EXACTLY ON WHICH LIMB THE PENALTY U/S 271(1)(C) HAS BEEN INITIATED. FROM THE NOTICE DATED 14.12.2016 PRODUCED DURING THE HEARING, IT CAN BE SEEN THAT THE ASSESSING OFFICER WAS NOT SURE UNDER WHICH LIMB OF PROVISIONS OF SECTION 271 OF THE INCOME TAX ACT, 1961, THE ASSESSEE IS LIABLE FOR PENALTY. THE ISSUE IS SQUARELY COVERED BY THE DECISION OF THE HON'BLE SUPREME COURT IN CASE OF M/S SSA' EMERALD MEADOWS (SUPRA). SINCE IN THE INSTANT CASE ALSO THE INAPPROPRIATE WORDS IN THE PENALTY NO TICE HAS NOT BEEN STRUCK OFF AND THE NOTICE DOES NOT SPECIFY AS TO UNDER WHICH LIMB OF THE PROVISIONS, THE PENALTY U/S 271(1)(C) HAS BEEN INITIATED, THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT THE PENALTY LEVIED U/S 271(1)(C) IS NOT SUSTAINABLE AND HA S TO BE DELETED. WE ALSO IN SIMILAR SITUATION, THIS BENCH OF THE TRIBUNAL IN THE CASE OF SHRI RANJAN KUMAR SAHU (SUPRA) HAS DELETED THE PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT. FOLLOWING THE PRECEDENT, WE SET - ASIDE THE ORDER OF THE CIT(A) AND D IRECT THE ASSESSING OFFICER TO CANCEL THE PENALTY SO LEVIED U/S.271(1)(C) OF THE ACT OF RS.48,64,000/ - AND ALLOW THE APPEAL OF THE ASSESSEE. 6. FACTS BEING SIMILAR, FOLLOWING THE PRECEDENT, I DELETE THE PENALTY OF RS.3,26,124/ - LEVIED U/S.271(1)(C) AND ALLOW THE APPEAL OF THE ASSESSEE. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 13 / 0 2 /20 20 . S D/ - ( CHANDRA MOHAN GARG) JUDICIAL MEMBER CUTTACK; DATED 13 / 0 2 /20 20 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER SR . PVT. S ECRETARY ITAT, CUTTACK 1. THE APPELLANT : BIJAY BRATA KUNDU, C/O - KAMAL KUNDU, DOOR B - 1202, 14 TH FLOOR, G BLOCK MERA HOMES, PO: KAGUGODI, WHITE FIELD, HOSKOTTE MAIN ROAD, BANGALORE - 560067 2. THE RESPONDENT. INCOME TAX OFFICER, WARD 3(1), BHUBANESWAR. 3. THE CIT(A) - 2 , BHUBANESWAR 4. PR.CIT - 2 , BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY// ITA NO.61/CTK/2020 ASSESSMENT YEAR : 2013 - 2014 P A G E 4 | 4