Smt. Saroj Rai, Ranchi V. ACIT CIRCLE-2, Ranchi

ITA 62/RAN/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 7681 (ITAT-RANCHI)
• Duration Of Justice: 8 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 11-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K MONDAL
• Assessee Lawyers: DEVESH PODDARADV
• Section: 271(1)(c); 201; 274; 64; 63

Judgement Text

P A G E 1 | 5 IN THE INCOME TAX APPELLATE TRIBUNAL, RANCHI BENCH, RANCHI BEFORE S/ SHRI CHANDRA MOHAN GARG , JUDICIAL MEMBER AND LAXMI PRASAD SAHU, ACCOUNTANT MEMBER ITA NO S . 62 , 63 & 64 / RAN /201 9 ASSESSMENT YEA R S : 2010 - 2011 TO 2012 - 13 SMT. SAROJ RAI, JAGDISH ENCLAVE, DEVI MANDAP ROAD, HEHAL, RANCHI. VS. DCIT, CIRCLE - 2, RANCHI PAN/GIR NO. AESPR 5328 E (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI DEVESH PODDAR,ADV REVENUE BY : SHRI P.K.MONDAL, ADDL. CIT( DR ) DATE OF HEARING : 30 / 08/ 201 9 DATE OF PRONOUNCEMENT : 30 / 10 / 201 9 O R D E R PER BENCH TH ESE ARE APPEAL S FILED BY THE ASSESSEE AGAINST THE SEPARATE ORDER S OF THE COMMISSIONER OF INCOME TAX(APPEALS) - RANCHI DATED 12.10.2018 FOR THE ASSESSMENT YEAR 201 0 - 2011 TO 2012 - 13. 2. THE SOLE ISSUE INVOLVED IN TH ESE APPEAL S IS THAT THE COMMISSIONER OF INCOME TAX(APPEALS) WAS NOT JUSTIFIED IN CONFIRMING THE LEVY OF PENALTY OF RS. 1,22,670/ - , RS.44,220/ - & 2,55,050/ - IMPOSED U/S.271(1)(C ) OF THE ACT FOR THE ASSESSMENT YEARS 2010 - 2011 TO 2013 - 14. 3. AT THE OUTSET, T HE LD. COUNSEL FILED A COPY OF THE NOTICE S ISSUED U/S 271(1)(C) OF THE IT ACT DATED 31.3.2015 . REFERRING TO THE SAME, HE ITA NOS.62, 63 & 64/RAN/2019 ASSESSMENT YEARS: 2010 - 2011 TO 2012 - 13 P A G E 2 | 5 SUBMITTED THAT THE ASSESSING OFFICER HAS NOT STRUCK OFF THE INAPPROPRIATE WORDS FROM THE SAID NOTICE S I.E., HE HAS NOT SPECIFIED UNDER WHICH LIMB OF THE PROVISIONS I.E., WHETHER FOR CONCEALMENT OF THE PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF SUCH INCOME THE PENALTY HAS BEEN LE VIED. REFERRING TO THE DECISION OF THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON & GINNING FACTORY REPORTED IN 359 ITR 565 (KAR), HE SUBMITTED THAT IF THE ASSESSING OFFICER DOES NOT STRIKE OFF THE INAPPROPRIATE WORDS FROM THE NOTICE S , THEN, LEVY OF PENALTY U/S 271(1)(C) IS NOT JUSTIFIED SINCE IT IS NOT KNOWN UNDER WHICH LIMB OF THE PROVISION THE PENALTY HAS BEEN LEVIED. FURTHER, THE ASSESSING OFFICER IN THE ASSESSMENT ORDER HAS NOT REACHED REQUISITE SATISFACTION AS TO WHETHER THE INITI ATION OF PENALTY IS ON ACCOUNT OF CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME . HENCE, HE URGED THAT PENALTY LEVIED BY THE ASSESSING OFFICER DESERVES TO BE DELETED. 4 . REPLYING TO ABOVE, THE LD. DR VEHEMENTLY DEFENDED THE ORDER S OF AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND PENALTY NOTICES PLACED ON THE RECORD OF THE TRIBUNAL . P ERUSAL OF THE NOTICE S ISSUED U/S 274 READ WITH SECTION 271 OF THE IT ACT DATED 31.3.2015 SHOW THAT THE ASSESSING OFFICER HAS NOT STRUCK OFF THE INAPPROPRIATE WORDS IN THE SAID NOTICE S . WHILE ITA NOS.62, 63 & 64/RAN/2019 ASSESSMENT YEARS: 2010 - 2011 TO 2012 - 13 P A G E 3 | 5 IMPOSING THE PENALTY, THE ASSESSING OFFICER DID NOT MENTION UNDER WHICH LIMB OF THE PR OVISION THE PENALTY HAS BEEN INITIATED I.E., FOR CONCEALMENT OF INCOME OR FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME OR FOR BOTH. THE PENALTY NOTICE S MENTION AS UNDER: - HAVE CONCEALED THE PARTICULARS OF YOUR INCOME OR FURNISHED .. INACCURATE PA RTICULARS OF SUCH INCOME. 6. P ERUSAL OF THE ORDER LEVYING PENALTY DATED 31.10.2017 REVEALS THAT THOUGH PENALTY WAS INITIATED FOR 'FURNISHING INACCURATE PARTICULARS OF INCOME', THE ASSESSING OFFICER INVOKED THE OTHER LIMB OF SECTION 271(1)(C) OF THE ACT WHILE LEVYING PENALTY I.E. 'CONC EALMENT OF INCOME'. THE MANNER IN WHICH PENALTY HAS BEEN LEVIED BY THE ASSESSING OFFICER U/S.271(1)(C) OF THE ACT CLEARLY SHOWS THAT THERE WAS AMBIGUITY IN THE MIND OF ASSESSING OFFICER WITH REGARD TO CHARGE U/S.271(1)(C) OF THE ACT THAT IS TO BE INVOKED FOR LEVY OF PENALTY. IT IS A WELL SETTLE D LAW THAT PENALTY CANNOT BE LEVIED ON THE CHARGE OTHER THAN THE CHARGE FOR WHICH IT WAS INITIATED. 7. THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON & GINNING FACTORY (SUPRA) OBSERVED THAT THE LEVY OF PENALTY HAS TO BE CLEAR AS TO THE LIMB UNDER WHICH IT IS BEING LEVIED. AS PER HON'BLE HIGH COURT, WHERE THE ASSESSING OFFICER PROPOSED TO INVOKE FIRST LIMB BEING CONCEALMENT, THEN THE NOTICE HAS TO BE APPROPRIATELY MARKED. THE HON'BLE H IGH COURT HELD THAT THE STANDARD PROFORMA OF NOTICE UNDER SECTION 274 OF ITA NOS.62, 63 & 64/RAN/2019 ASSESSMENT YEARS: 2010 - 2011 TO 2012 - 13 P A G E 4 | 5 THE ACT WITHOUT STRIKING OF THE IRRELEVANT CLAUSES WOULD LEAD TO AN INFERENCE OF NON - APPLICATION OF MIND BY THE ASSESSING OFFICER. 8. WE FIND THAT HONBLE SUPREME COURT IN THE CASE OF SSAS EMARLD MEADOWS (SUPRA) HAS HELD THAT OMISSION BY THE AO TO EXPLICITLY SPECIFY IN THE PENALTY NOTICE AS TO WHETHER PENALTY PROCEEDINGS ARE BEING INITIATED FOR FURNISHING OF INACCURATE PARTICULARS OR FOR CONCEALMENT OF INCOME MAKES THE PENALTY ORDER LIABLE FOR CANCELLATION. 9 . IN THE BACKGROUND OF THE AFORESAID LEGAL POSITION AND, HAVING REGARD TO THE MANNER IN WHICH THE ASSESSING OFFICER HAS ISSUED NOTICE S UNDER SECTION 274 R.W.S. 271( 1 )(C) OF THE ACT DATED 31.3.2015 FOR ASSESSMENT YEAR S 201 0 - 2011 TO 2013 - 13 WITHOUT MENTIONING THAT WHETHER THE ASSESSEE HAD CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME, WE ARE OF THE CONSIDERED VIEW THAT WHEN THE ASSESSEE HAS NOT BEEN SPECIFICALLY MADE AWARE OF THE CHARGES LEVELED AGAINST HIM AS TO WHETHER THERE IS A CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME ON HIS PART, THE PENALTY U/S 271(1)(C) O F THE ACT IS NOT SUSTAINABLE. IN VIEW OF ABOVE, WE HOLD THAT THE PROCEEDINGS SHOW A NON - APPLICATION OF MIND BY THE ASSESSING OFFICER AND IS, THUS, UNSUSTAINABLE. THEREFORE, WE DELETE THE PENALTY OF RS. 1,22,670/ - , RS.44,220/ - & 2,55,050/ - IMPOSED U/S .271(1)(C) OF THE ACT FOR THE ASSESSMENT YEARS 2010 - 2011 TO 2013 - 14, RESPECTIVELY. ITA NOS.62, 63 & 64/RAN/2019 ASSESSMENT YEARS: 2010 - 2011 TO 2012 - 13 P A G E 5 | 5 10 . IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT UNDER RULE 34(4) OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963 ON 30 / 10 /2019. SD/ - SD/ - (LAXMI PRASAD SAHU) ( CHANDRA MOHAN GARG ) ACCOUNTANT MEMBER JUDICIALMEMBER RANCHI ; DATED 30 / 10 /20 1 9 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER SR. PVT. SECRETARY, ITAT, CUTTACK 1. THE APPELLANT : SMT. SAROJ RAI, JAGDISH ENCLAVE, DEVI MANDAP ROAD, HEHAL, RANCHI. 2. THE RESPONDENT: DCIT, CIRCLE - 2, RANCHI 3. THE CIT(A) - RANCHI 4. PR.CIT - RANCHI 5. DR, ITAT, RANCHI 6. GUARD FILE. //TRUE COPY//