Smt. Santana Banerjee, Burdwan V. ITO, Ward - 1(1), Burdwan, Burdwan

ITA 637/KOL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48150 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 01-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MALAKAR

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA () BEFORE . . ! '# '# '# '# /AND ' '' ' # # # # , ! ) [BEFORE HONBLE SHRI S. V. MEHROTRA, AM & HONBLE S RI MAHAVIR SINGH, JM] #$ #$ #$ #$ / I.T.A NO. 637/KOL/2010 %& ''( %& ''( %& ''( %& ''(/ // / ASSESSMENT YEAR: 2007-08 SMT. SANTANA BANERJEE VS INCOME-TAX OFFICER, WD- 1(1), BURDWAN (PAN-AHRPB 8181 F) (*+ /APPELLANT ) (,-*+/ RESPONDENT ) FOR THE APPELLANT: SHRI SHUVO CHAKRABORTY FOR THE RESPONDENT: SHRI S. K. MALAKAR . / ORDER PER MAHAVIR SINGH, JM ( ' # ' # ' # ' # , , , , ! ! ! ! ) THIS APPEAL BY ASSESSEE IS ARISING OUT OF THE ORDER OF CIT(A)-ASANSOL IN APPEAL NO.07/CIT(A)/ASL/W-1(1)/ERST.BWN/2009-10 DATED 22.0 1.2010. THE PENALTY IN DISPUTE WAS LEVIED BY ITO, WARD-1(1), BURDWAN U/S 271A OF THE I NCOME-TAX ACT, 1961 VIDE HIS ORDER DATED 27.04.2009. 2. THE ONLY ISSUE IN THIS APPEAL OF THE ASSESSEE IS AGAINST THE ORDER OF CIT(A) CONFIRMING THE PENALTY LEVIED BY ASSESSING OFFICER U/S. 271A O F THE ACT FOR NON-MAINTENANCE OF BOOKS OF ACCOUNT. FOR THIS, THE ASSESSEE HAS RAISED THE FOLL OWING THREE EFFECTIVE GROUNDS: I. FOR THAT LD. APPELLATE AUTHORITY FAILED TO APPR ECIATE THE FACT THAT APPELLANT HAD MAINTAINED BOOKS OF ACCOUNT BUT FAILED TO PRODU CE THEM BEFORE A.O. DUE TO LOSS OF THEM. THEREFORE CONFIRMATION OF PENALTY OR DER IS BAD IN LAW AND SUCH APPELLATE ORDER IS LIABLE TO BE QUASHED. 2. FOR THAT NON-CONSIDERATION OF GENERAL DIARY AS A PROOF OF LOSS OF BOOKS OF ACCOUNT IS UNJUSTIFIED ILLEGAL. HENCE SUCH APPELLA TE ORDER IS LIABLE TO BE CANCELLED. 3. FOR THAT FILING OF RETURN OR NO ACCOUNT COLUMN W AS INADVERTENT AND DUE TO MISTAKE AND NEGLIGENCE OF APPELLANTS ACCOUNT. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. THE ASSESSING OFFICER IMPOSED PENALTY OF RS.25,000/ - U/S. 271A OF THE ACT FOR NON- MAINTENANCE OF BOOKS OF ACCOUNT. ASSESSEE IS AN IN SURANCE AGENT AND HAS GROSS RECEIPTS FROM 2 ITA 637/K/201 0 SANTANA BANERJEE. A.Y. 07-08 INSURANCE BUSINESS AT RS.3,97,331/- AND NET RECEIPT S AT RS.1,50,801/-. ASSESSING OFFICER NOTED THAT THE ASSESSEE AS PER THE PROVISIONS OF SECTION 44AA OF THE ACT WAS REQUIRED TO MAINTAIN BOOKS OF ACCOUNT BUT SHE HAS NOT MAINTAINED THE SAM E. DURING PENALTY PROCEEDINGS NO EXPLANATION WAS OFFERED BY ASSESSEE AND ACCORDINGLY , ASSESSING OFFICER LEVIED THE PENALTY FOR NON-COMPLIANCE OF THE PROVISIONS OF SECTION 44AA OF THE ACT I.E. NON-MAINTENANCE OF BOOKS OF ACCOUNT. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFO RE CIT(A), WHO CONFIRMED THE ACTION OF THE ASSESSING OFFICER. 4. WE FIND THAT THE MAIN PLEA OF THE ASSESSEE IS TH AT THE BOOKS OF ACCOUNT WERE LOST IN TRANSIT AND FOR THIS SHE HAS FILED A POLICE COMPLAI NT REGARDING LOSS OF BOOKS OF ACCOUNT AND THE COMPLAINT WAS DATED 27.3.2008, WHICH READS AS UNDER : I SMT. SANTANA BANERJEE, IS AN INSURANCE AGENT IN PROFESSION. THAT ON DT. 25.3.2009 WHEN I WAS TRAVELLING FROM THE ADVOCATE CHAMBER TO A CLIENT HOUSE IN KALNAGATE, BURDWAN, I STOPPED AT A SHOP TO PURCHASE SOME GOODS . AFTER LEAVING THE SHOP WHEN I REACHED TO MY CLIENTS PLACE I SUDDENLY NOTICED THA T I HAVE LEFT MY BAG IN THE SHOP WHICH CONTAINED THE BOOKS OF ACCOUNTS OF MINE FOR FINANCI AL YEAR 2006-07. AGAIN I REACHED TO THE SHOP IN SEARCH OF THE BAG BUT I FOUND THE BA G WAS LOST. THE SHOP WAS FULL OF CUSTOMERS AND THE SHOP KEEPER FAILED TO GIVE TRACE OF THE BAG. NOW THERE IS NO CHANCE TO RECOVER. THEREFORE I AM REQUESTING YOU TO LODGE A DIARY. EVEN FROM THE PENALTY ORDER WE CAN MAKE OUT THAT TH E ORDER DATED 27.4.2009, WHICH WAS LEVIED AFTER ISSUING NOTICE DATED 17.11.2008. IT SEEMS TH AT THE ASSESSING OFFICER HAS LEVIED PENALTY ALMOST AFTER FIVE MONTHS OF ISSUANCE OF NOTICE AND NO FURTHER OPPORTUNITY WAS PROVIDED. IN OVER ALL CIRCUMSTANCES OF THE CASE, THAT THE BOOKS WERE LOST AND TO THAT EFFECT A POLICE COMPLAINT WAS LODGED AND EVEN NO PROPER OPPORTUNITY TO EXPLAIN HE R CASE WAS PROVIDED BY THE LOWER AUTHORITIES, WE DELETE THE PENALTY AND THE APPEAL O F THE ASSESSEE IS ALLOWED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. 6. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST MAY, 2011 SD/- SD/- . . ! ' '' ' # # # # , ! (S. V. MEHROTRA) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( / / / /) )) ) DATED 31 ST MAY, 2011 '01 %23 4' JD.(SR.P.S.) 3 ITA 637/K/201 0 SANTANA BANERJEE. A.Y. 07-08 . 5 ,6 76'8- COPY OF THE ORDER FORWARDED TO: 1 . *+ / APPELLANT SMT. SANTANA BANERJEE, C/O, MADHUSUDAN BANDYOPADHYAY, VILL & P.O. RAYAN, BURDWAN-713101. 2 ,-*+ / RESPONDENT ITO, WARD-1(1), BURDWAN 3 . .% ( )/ THE CIT(A), ASANSOL 4. 5. .% / CIT 6'= ,% / DR, KOLKATA BENCHES, KOLKATA -6 ,/ TRUE COPY, .%>/ BY ORDER, #3 /ASSTT. REGISTRAR .