Neerja Saraf, Bankura V. I.T.O.Ward-3(2), Bankura

ITA 692/KOL/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1720 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2015-2016
• Appeal Filed On: 08-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 271(1)(c); 143(3); 274; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH (C), KOLKATA [ BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT (KZ) & SHRI S.S. VISWANETHRA RAVI, JM ] I.T.A. NO. 692/KOL/2019 ASSESSMENT YEAR: 2015-16 NEERJA SARAF.......................................................................................APPELLANT RABINDRA SARANI, BANKURA, WEST BENGAL 722 101. [PAN: ARLPS 3443 H] ITO, WARD 3(2), BANKURA.................................RESPONDENT S.K. SAHANA ROAD, KENDUADIHI, BANKURA 722 101. APPEARANCES BY: SHRI AMIT AGARWAL, ADVOCATE APPEARING ON BEHALF OF THE ASSESSEE. NONE APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : MAY 31, 2019 DATE OF PRONOUNCING THE ORDER : JUNE 14, 2019 ORDER PER P.M. JAGTAP, VICE-PRESIDENT (KZ) THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) DURGAPUR, DATED 23.01.2019 WHEREBY HE CONFIRMED THE PENALTY OF RS. 2,05,192/- IMPOSED BY THE AO U/S 271(1)(C) OF THE INCOME TAX ACT, 1961. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUAL WHO FILED HIS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ON 29.08.2015 DECLARING A TOTAL INCOME OF RS. 2,54,450/-. IN THE SAID RETURN, PROFIT ARISING FROM SALE OF SHARES OF CCL INTERNATIONAL WAS CLAIMED TO BE EXEMPT BY THE ASSESSEE BEING A LONG TERM CAPITAL GAIN. IN THE ASSESSMENT COMPLETED U/S 143(3) VIDE AN ORDER DATED 23.11.2017, THE SAID PROFIT WAS HELD TO BE CHARGEABLE TO TAX BY THE AO IN THE HANDS OF THE ASSESSEE AS SHORT TERM CAPITAL GAIN. ACCORDINGLY, ADDITION OF RS. 13,25,140/- WAS MADE BY HIM TO THE TOTAL INCOME OF THE ASSESSEE. 2 I.T.A. NO. 692/KOL/2019 ASSESSMENT YEAR: 2015-16 NEERJA SARAF PENALTY PROCEEDINGS U/S 271(1)(C) WERE ALSO INITIATED BY THE AO AND SINCE THE ASSESSEE COULD NOT OFFER ANY SATISFACTORY EXPLANATION TO THE SHOW CAUSE NOTICE ISSUED DURING THE COURSE OF PROCEEDINGS, A PENALTY OF RS. 2,05,192/- WAS IMPOSED BY THE AO U/S 271(1)(C) BEING 100% OF THE AMOUNT OF TAX SOUGHT TO BE EVADED BY THE ASSESSEE ON THE SHORT TERM CAPITAL GAIN OF RS. 13,25,140/-. ON APPEAL, THE LD. CIT(A) CONFIRMED THE SAID PENALTY IMPOSED BY THE AO. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 3. AT THE TIME OF HEARING OF THIS APPEAL, NONE WAS PRESENT FOR THE DEPARTMENT. THIS APPEAL IS ACCORDINGLY BEING DISPOSED OF EX-PARTE QUA THE RESPONDENT DEPARTMENT AFTER HEARING THE LEARNED COUNSEL FOR THE ASSESSEE AND PERUSING THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE LEARNED COUNSEL FOR THE ASSESSEE HAS RAISED A PRELIMINARY ISSUE CHALLENGING THE VERY INITIATION OF THE PENALTY PROCEEDINGS BY THE AO ON THE GROUND THAT THE SHOW CAUSE NOTICE ISSUED BY HIM U/S 274 WITHOUT CONTAINING THE SPECIFIC CHARGE AS TO WHETHER THE ASSESSEE WAS GUILTY OF HAVING CONCEALED PARTICULARS OF INCOME OR HAVING PARTICULARS OF SUCH INCOME IS DEFECTIVE. HE HAS PLACED ON RECORD A COPY OF THE NOTICE TO SHOW THAT THE ASSESSING OFFICER HAS NOT STRUCK OFF IRRELEVANT PORTION IN THE SHOW CAUSE NOTICE THEREBY NOT SPECIFYING THE EXACT CHARGE ON THE ASSESSEE. IN THIS REGARD, HE HAS RELIED ON THE DECISION OF HONBLE KOLKATA HIGH COURT IN THE CASE OF PR. CIT VS BIJOY KR. AGARWAL (ITAT NO. 272 OF 2017 DATED 02.04.2019) WHEREIN THE DECISION OF THE TRIBUNAL WAS UPHELD BY THE HONBLE JURISDICTIONAL HIGH COURT HOLDING THAT THE NOTICE ISSUED U/S 271(1)(C) WITHOUT SPECIFYING WHICH OF THE TWO CONTRAVENTIONS, THE ASSESSEE IS GUILTY OF WAS DEFECTIVE AND THE PENALTY 3 I.T.A. NO. 692/KOL/2019 ASSESSMENT YEAR: 2015-16 NEERJA SARAF IMPOSED IN PURSUANCE OF SUCH DEFECTIVE NOTICE WAS NOT SUSTAINABLE. TO ARRIVE AT THIS CONCLUSION, HONBLE KOLKATA HIGH COURT RELIED ON THE DECISION OF AMRIT FOODS VS COMMISSIONER OF CENTRAL EXCISE UP REPORTED IN (2005) 13 SCC 419 AS WELL AS DECISION IN THE CASE OF PCIT VS DR. DR. MURARI MOHAN KOLEY (ITAT NO. 306 OF 2017 DATED 18.07.2018). THE ISSUE RAISED BY THE ASSESSEE IN THE PRESENT APPEAL THUS IS SQUARELY COVERED BY THE SAID JUDICIAL PRONOUNCEMENTS AND RESPECTFULLY FOLLOWING THE SAME, WE CANCEL THE PENALTY IMPOSED BY THE AO U/S 271(1)(C) AND CONFIRMED BY THE LD. CIT(A). 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH JUNE, 2019. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER VICE PRESIDENT DATED: 14/06/2019 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. NEERAJ SARAF, RABINDRA SARANI, BANKURA, WEST BENGAL 722 101. 2. ITO, WARD 3(2), BANKURA. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, ASSISTANT REGISTRAR / H.O.O. ITAT, KOLKATA