M/s. Cane Development Council , Basti V. DY. Commissioner of Income Tax, GONDA

ITA 612/LKW/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70589 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 27-11-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 18-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK MITRA
• Assessee Lawyers: G N SHUKLA
• Keywords: Reasonable cause

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.612/LKW/2012 A.Y.: 2006 - 07 M/S CANE DEVELOPMENT COUNCIL, BABHNAN, DISTRICT - BASTI. PAN:AAAAZ0217H VS. DY.C.I.T., GONDA. (APPELLANT) (RESPONDENT) APPELLANT BY SHRI G. N. SHUKLA, ADVOCATE RESPONDENT BY SHRI ALOK MITRA, D.R. DATE OF HEARING 27/11/2013 DATE OF PRONOUNCEMENT 2 3 /12/2013 O R D E R PER A. K. GARODIA, A.M. THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORDER OF LEARNED CIT ( A) - II, LUCKNOW DATED 08/10/2012 FOR ASSESSMENT YEAR 2006 - 07. 2. ALTHOUGH THE ASSESSEE HAS RAISED AS MANY AS 9 GROUNDS OF APPEAL BUT THE ONLY GRIEVANCE OF THE ASSESSEE IS REGARDING PENALTY IMPOSED BY THE ASSESSING OFFICER OF RS.42,366/ - U/S 271B OF THE I.T. ACT. 3. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT THIS ISSUE IS NOW SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL DECISION RENDERED IN THE CASE OF UP CO - O PERATIVE CANE DEVELOPMENT UNION LTD. VS. DY. CIT IN I.T.A. NO.166/LKW/2011 DATED 07/07/2011. HE SUBMITTED A COPY OF THE TRIBUNAL DECISION. HE FURTHER SUBMITTED THAT IN THAT CASE ALSO, THE PENALTY U/S 271B OF THE ACT WAS IMPOSED ON THE ASSESSEE FOR ASSESS MENT YEAR 2006 - 07 AND 2007 - 08 AND IN THAT CASE, THE TRIBUNAL DELETED THE PENALTY BY FOLLOWING THE JUDGMENT OF HON'BLE UTTARAKHAND HIGH COURT RENDERED IN THE CASE OF CIT VS. IQBALPUR CO - 2 OPERATIVE DEVELOPMENT UNION REPORTED IN 179 TAXMAN 27. HE SUBMITTED A COPY OF THIS JUDGMENT OF HON'BLE HIGH COURT ALSO. 4. LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD, GONE THROUGH THE ORDERS OF THE AUTHORITIE S BELOW AND THE TRIBUNAL DECISION AS WELL AS THE JUDGMENT OF HON'BLE UTTARAKHAND HIGH COURT CITED BY LEARNED A.R. OF THE ASSESSEE. THE RELEVANT PARA OF THE JUDGMENT OF HON'BLE UTTARAKHAND HIGH COURT IS PARA 6, WHICH IS REPRODUCED BELOW: 6. CONSIDERING A LL THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THAT SINCE THERE APPEARS NO INTENTION ON THE PART OF THE ASSESSEE AS FOUND BY THE TRIBUNAL TO CONCEAL THE INCOME OR TO DEPRIVE THE GOVERNMENT OF REVENUE, AS THERE IS NO TAX PAYABLE ON THE INCOM E OF THE ASSESSEE, IN VIEW OF THE PROVISIONS OF S. 80P OF IT ACT, 1961, WE ARE OF THE VIEW THAT IT WAS NOT NECESSARY FOR THE AO TO IMPOSE PENALTY UNDER S. 271B OF THE ACT. ON GOING THROUGH THE IMPUGNED ORDER PASSED BY THE TRIBUNAL, IN THE ABOVE CIRCUMSTANC ES, WE DO NOT FIND ANY SUFFICIENT REASON TO INTERFERE WITH THE SATISFACTION RECORDED BY THE TRIBUNAL AS TO THE FINDING OF FACT THAT THE ASSESSEE HAD NO INTENTION TO CAUSE ANY LOSS TO THE REVENUE AND AS SUCH, THE PENALTY WAS NOT NECESSARILY REQUIRED TO BE I MPOSED BY THE AO. AGREEING WITH THE VIEW OF THE TRIBUNAL, WE HOLD THAT THOUGH AN ASSESSEE IS LIABLE TO PENALTY UNDER S. 271B OF IT ACT, 1961, FOR FAILURE TO COMPLY THE PROVISIONS OF S. 44AB OF THE ACT, BUT SINCE IN THE PRESENT CASE, NO TAX WAS PAYABLE BY T HE ASSESSEE/RESPONDENT IN VIEW OF THE PROVISIONS CONTAINED IN S. 80P OF THE ACT, THE TRIBUNAL HAS COMMITTED NO ERROR OF LAW IN SETTING ASIDE THE PENALTY IMPOSED BY THE AO. 5.1 IN THE PRESENT CASE ALSO, THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S 80P OF THE ACT. RESPECTFULLY FOLLOWING THE JUDGMENT OF HON'BLE UTTARAKHAND HIGH COURT AND ALSO THE TRIBUNAL DECISION CITED BY LEARNED A.R. OF THE ASSESSEE, WE DELETE THE PENALTY IMPOSED BY THE ASSESSING OFFICER AND CONFIRMED BY LEARNED CIT(A). IN PARA 4.6 OF HIS O RDER, THE LEARNED CIT(A) HAS OBSERVED THAT AS PER THE TRIBUNAL ORDER IN THE CASE OF CANE DEVELOPMENT UNION IN I.T.A. NO.508 & 3 509/LKW/2011 DATED 19/09/2012, IT WAS HELD BY THE TRIBUNAL THAT PENALTY IS NOT LEVIAB LE FOR ASSESSMENT YEAR 2006 - 07 BEING THE FIRST YEAR BUT FOR ASSESSMENT YEAR 2007 - 08 , PENALTY WAS CONFIRMED AND IT WAS HELD THAT WHAT IS A REASONABLE CAUSE IN ONE YEAR, WOULD NOT REMAIN REASONABLE IN NEXT YEAR. BUT IN THE PRESENT CASE, THERE IS NO FINDING GIVEN BY THE ASSESSING OFFICER OR BY LEARNED CIT(A) THAT ANY PENALTY U/S 271B OF THE ACT WAS IMPOSED IN THE PRESENT CASE FOR ANY EARLIER YEAR. LEARNED D.R. OF THE REVENUE ALSO COULD NOT BRING ANY EVIDENCE ON RECORD TO SHOW THAT ANY PENALTY U/S 271B OF THE ACT WAS IMPOSED ON THE ASSESSEE IN ANY EARLIER YEAR. HENCE, THIS DECISION OF LEARNED CIT(A) ON THE BASIS OF THE TRIBUNAL DECISION, CITED BY HIM HAVING BEEN RENDERED IN THE CASE OF CANE DEVELOPMENT UNION (SUPRA), IS NOT APPLICABLE IN THE PRESENT CASE BECAUSE IN THE PRESENT CASE , IT COULD NO T BE SHOWN BY THE REVENUE THAT ANY PENALTY WAS IMPOSED EARLIER AND THIS IS SUBSEQUENT YEAR OF SUCH PENALTY. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON CAPTION PAGE) SD/. SD/. (SUN IL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 3 /12/2013 *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. DR, ITAT, LUCKNOW ASSTT. REGISTRAR