Nathmal Tungar, Kolkata V. ITO, W-43(4), KOLKATA, Kolkata

ITA 612/KOL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0787 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 06-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARINDAM BHATTACHARJEE
• Assessee Lawyers: S D VERMA
• Keywords: Question of law

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENCH KOLKATA BEFORE SHRI S. S. VISWANETHRA RAVI, JM &DR. A.L.SAINI, AM ./ ITA NO.612/KOL/2016 ( / ASSESSMENT YEAR: 2005-06) NATHMAL TUNGAR C/O. S.D. VERMA, 7, RABINDRA SARANI, 2 ND FLOOR, KOLKATA -1. VS. ITO, WARD-43(4), KOLKATA 3, GOVT. PLACE, WEST BENGAL, KOLKATA 1. ./ ./PAN/GIR NO. :ACXPT 1238 N (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI S.D. VERMA, ADVOCATE RESPONDENT BY : SHRI ARINDAM BHATTACHARJEE, ADDL. CIT / DATE OF HEARING : 16/10/2017 /DATE OF PRONOUNCEMENT : 29/11/2017 / O R D E R PER DR. ARJUN LAL SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERTAINING TO ASSESSMENT YEAR 2005-06, IS DIRECTED AGAINST THE ORDER PASSED BY THE LD COMMISSIONER OF INCOME TAX (APPEALS)-21,KOLKATA, IN APPEAL NO.1362/ITO,WARD- 43(4)/CIT(A)-21/KOL/14-15, DATED 25.01.2016,WHICH IN TURN ARISES OUT OF AN ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S.271(1)(C)/254/143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT), DATED 23.07.2012. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 01. THE LD. COMMISSIONER OF INCOME TAX(APPEALS) WAS NOT JUSTIFIED IN CONFIRMING PENALTY ORDER PASSED BY AO U/S 271(1)(C) RS.1,90,414/- WITHOUT JUDICIALLY CONSIDERING THE ENTIRE FACTS AND CIRCUMSTANCES OF THE CASE. 02. THAT IN THE FACT AND CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND IN FACT IN CONFIRMING OF PENALTY OF RS.1,90,414/- IMPOSED BY THE AO U/S 271(1)(C). 03. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR MODIFY ANY OTHER GROUNDS OF APPEAL AT THE HEARING STAGE. 3. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE NOTICE U/S. 274 OF THE ACT R.W.S. 271 OF THE ACT DATED 28.12.2010 SERVED ON THE ASSESSEE WHEREIN WE NOTE THAT THE AO HAS NOT STRUCK DOWN THE LIMB OF NATHMAL TUNGAR ITA NO.612/KOL/2016 ASSESSMENT YEAR: 2005-06 PAGE | 2 CHARGE/DEFAULT FOR WHICH THE PENALTY IS BEING INITIATED AGAINST THE ASSESSEE. WE FIND THAT THE NOTICE HAS BEEN ISSUED FOR HAVING CONCEALED THE PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME. WE ALSO NOTICE THAT PENALTY ORDER SPEAKS ABOUT INACCURATE PARTICULARS OF INCOME WHEREAS PENALTY NOTICE WAS TICKED BY AO FOR CONCEALMENT OF INCOME. WE NOTE THAT IN A SIMILAR CASE THE HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF CIT VS. MANJUNATHA COTTON AND GINNING FACTORY REPORTED IN (2013) 359 ITR 565 (KAR) HAS CANCELLED THE PENALTY TAKING NOTE OF THE FACT THAT THE PENALTY NOTICE DID NOT SPELL OUT CLEARLY AS TO WHETHER THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME OR HAS FURNISHED INACCURATE PARTICULARS OF INCOME. WE ALSO FIND THAT HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. SSAS EMERALD MEADOWS, REPORTED IN (2016) 73 TAXMANN.COM 241 (KAR) ENDORSED THE SAME VIEW IN MANJUNATHA COTTON AND GINNING FACTORY(SUPRA) AND HELD AS UNDER: 3. THE TRIBUNAL HAS ALLOWED THE APPEAL FILED BY THE ASSESSEE HOLDING THE NOTICE ISSUED BY THE ASSESSING OFFICER UNDER SECTION 274 READ WITH SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT), TO BE BAD IN LAW AS IT DID NOT SPECIFY WHICH LIMB OF SECTION 271(1)(C) OF THE ACT, THE PENALTY PROCEEDINGS HAD BEEN INITIATED I.E., WHETHER FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE TRIBUNAL, WHILE ALLOWING THE APPEAL OF THE ASSESSEE, HAS RELIED ON THE DECISION OF THE DIVISION BENCH OF THIS COURT RENDERED IN THE CASE OF CIT VS. MANJUNATHA COTTON & GINNING FACTORY (2013) 359 ITR 565/218 TAXMAN 423/35 TAXMANN.COM 250(KAR). 4. IN OUR VIEW, SINCE THE MATTER IS COVERED BY JUDGMENT OF THE DIVISION BENCH OF THIS COURT, WE ARE OF THE OPINION, NO SUBSTANTIAL QUESTION OF LAW ARISES IN THIS APPEAL FOR DETERMINATION BY THIS COURT. THE APPEAL IS ACCORDINGLY DISMISSED. WE ALSO FIND THAT THE AFORESAID ORDER OF THE HONBLE HIGH COURT WAS CHALLENGED BY THE DEPARTMENT BEFORE THE HONBLE SUPREME COURT BY PREFERRING AN SLP WHICH HAS BEEN DISMISSED, WHICH FACT HAS BEEN REPORTED IN CIT VS. SSAS EMERALD MEADOWS (2016) 73 TAXMANN.COM 248 (SC). 4. WE NOTE THAT SINCE THE PENALTY NOTICE ISSUED TO THE ASSESSEE DATED 28.12.2010 DID NOT SPELL OUT AS TO WHICH DEFAULT THE ASSESSEE HAS COMMITTED FOR WHICH PENALTY U/S. 271(1)(C) OF THE ACT HAS BEEN INITIATED, THEREFORE, RESPECTFULLY FOLLOWING THE HONBLE KARNATAKA HIGH COURTS ORDER IN NATHMAL TUNGAR ITA NO.612/KOL/2016 ASSESSMENT YEAR: 2005-06 PAGE | 3 MANJUNATHA COTTON & GINNING FACTORY (SUPRA) AND SSAS EMERALD MEADOWS (SUPRA), WE CANCEL THE PENALTY IMPOSED BY THE AO WHICH HAS BEEN ERRONEOUSLY CONFIRMED BY THE LD. CIT(A). THEREFORE, APPEAL OF THE ASSESSEE IS ALLOWED. 5. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 29/11/2017. SD/- (S. S. VISWANETHRA RAVI) SD/- (DR. A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; DATED 29/11/2017 RS(SPS) / COPY OF THE ORDER FORWARDED TO : //TRUE COPY// BY ORDER SENIOR PRIVATE SECRETARY, HEAD OF OFFICE/D.D.O, I.T.A.T, KOLKATA BENCHES, KOLKATA . 1. / THE APPELLANT NATHMAL TUNGAR 2. / THE RESPONDENT-ITO, WARD-43(4), KOLKATA 3. ( ) / THE CIT(A), :KOLKATA. 4. / CIT 5. , , / DR, ITAT, KOLKATA 6. / GUARD FILE.