Kedar Nath Chitlangia, Malda V. ITO,Ward (2), Malda, Malda

ITA 694/KOL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87614 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 30-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C KOLKATA BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA , ACCOUNTANT MEMBER ITA NO. 694 - 695 /KOL/ 2012 ASSESSMENT YEAR: 2006 - 07 KEDAR NATH CHITLANGIA MARWARI PATTY LANE , SOUTH BALUCHAR, MALDA 732101 KEDAR NATH CHITLANGIA (HUF), MARWARI PATTY LANE, SOUTH BALUCHAR, MALDA 732101 / V/S . / V/S . I.T.O WARD - (2)/MALDA OFFICE OF THE INCOME TAX OFFICER WARD - 2, NETAJI MARKET MALDA 732 101 I.T.O WARD - (2)/MALDA OFFICE OF THE INCOME TAX OFFICER WARD - 2, NETAJI MARKET MALDA 732 101 / APPELLANT .. / RESPONDENT / BY ASSESSEE NONE / BY RE V EN UE SHRI DIPANKAR MUKHOPADHYAY, JCIT, SR - DR / DATE OF HEARING 07 - 01 - 2015 / DATE OF PRONOUNCEMENT 07 - 01 - 2015 / O R D E R PER SHAMIM YAHYA , ACCOUNTANT M EMBER : - TH E S E A PPEAL S BY THE ASSESSEE , KEDAR NATH CHITLANGIA AND KEDAR NATH CHITLANGIA - HUF ARE DIRECTED AGAINST THE RESPECTIVE ORDER S OF LD. COMMISSIONER OF INCOME - TAX (APPEALS), JALPAIGURI DATED 05 - 01 - 2012 AND PERTAINS TO ASSESSMENT YEAR 2006 - 07. ITA NO.694 - 695/KOL/2012 A.Y 2006 - 07 KEDAR NATH CHITLANGIA & (HUF) V. ITO WD - 2 MALDA PAGE 2 2. THE ISSUE RAISED IS THAT LD. CIT(A) ERRED IN SUSTAINING PENALTY U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) AMOUNTING TO 14,570/ - IN THE CASE OF KEDAR NATH CHITLANGIA AND 6,120/ - IN THE CASE OF KEDAR NATH CHITLANGIA (HUF). 3 . SINCE THE FACTS ARE SIMILAR AND THE APPEALS ARE HEARD TOGETHER AND THE SE APPEALS ARE DISPOSED BY THIS COMMON ORDER. 4 . WE HAVE HEARD LD. DR. NONE APPEARED ON BEHALF OF ASSESSEE, HOWEVER, IN OUR CONSIDERED OPINION, THE MATTER CAN BE DISPOSED OF BY HEARING THE LD. DR AFTER PERUSING THE RECORDS. 5 . BRIEF FACTS OF THE CASE A RE THAT ASSESSEE HAD SHOWN AGRICULTURAL INCOME OF 80,000/ - IN THE INDIVIDUAL ACCOUNT AND 55,000/ - IN THE HUF ACCOUNT. THE ASSESSEE COULD NOT PRODUCE ANY EVIDENCE REGARDING THE AGRICULTURAL INCOME EXCEPT PURCHASE DEED OF LAND. IN THESE CIRCUMSTANCES, ASS ESSEE S CLAIM OF AGRICULTURAL INCOME WAS DENIED AND ADDITION WAS MADE . T HEREUPON PENALTY U/S. 271(1) OF THE ACT WAS LEVIED AND LD. CIT(A) ALSO CONFIRMED THE LEVY OF PENALTY . 6 . UPON CAREFUL CONSIDERATION, WE FIND THAT ASSESSEE S CLAIM FOR AGRICULTURAL I NCOME HAS NOT BEEN ACCEPTED BY THE ASSESSING OFFICER ON THE GROUND THAT ASSESSEE COULD NOT FURNISH COGENT EVIDENCES PERTAINING TO THE AGRICULTURAL INCOME . WE FIND THAT ASSESSEE S CLAIM IS OF SALE MANGOES AS OF AGRICULTURAL PRODUCT. IN THIS REGARD , ASSESSEE HAS ALSO PRODUCED DEED OF LAND PURCHASED BY HIM. NOW, ASSESSEE S CLAIM FOR AGRICULTURAL INCOME HAS BEEN DENIED ON THE BASIS OF LACK OF EVIDENCE FOR THE CULTIVATION AND SALE DONE. WE FURTHER FIND THAT ITA NO.694 - 695/KOL/2012 A.Y 2006 - 07 KEDAR NATH CHITLANGIA & (HUF) V. ITO WD - 2 MALDA PAGE 3 PENALTY AND QUANTUM PROCEEDINGS ARE SEPARATE. IT IS SET TLED LAW THAT PENALTY IS NOT AUTOMATIC ON ADDITION OF QUANTUM. WE FIND THAT U/S 271(1) OF THE ACT POSTULATES LEVY OF PENALTY FOR CONCEALMENT AND FURNISHING OF INACCURATE PARTICULARS. IN THIS CASE, WE FIND THAT ASSESSEE HAS CLAIMED AGRICULTURAL INCOME . I N SUPPORT OF IT, ASSESSEE HAS ALSO FURNISHED PURCHASE DEED OF LAND. HENCE, IT CANNOT BE SAID THAT ASSESSEE S CLAIM WAS BOGUS OR CONTUMACIOUS. IN THIS VIEW OF THE MATTER, IN OUR CONSIDERED OPINION, PENALTY U/S 271(1) OF THE ACT WAS NOT LEVIABLE. 7 . IN THIS REGARD, WE PLACE THE RELIANCE ON THE DECISION OF HON BLE APEX COURT IN THE CASE OF HINDUSTAN STEEL LTD. V. STATE OF ORISSA (19 72 ) 8 3 ITR 26 (SC) FOR THE FOLLOWING PROPOSITION. A N ORDER IMPOSING PENALTY FOR FAILURE TO CARRY OUT A STATUTORY OBLIGATI ON IS THE RESULT OF A QUASI - CRIMINAL PROCEEDING, AND PENALTY WILL NOT ORDINARILY BE IMPOSED UNLESS THE PARTY OBLIGED EITHER ACTED DELIBERATELY IN DEFIANCE OF LAW OR WAS GUILTY OF CONDUCT CONTUMACIOUS OR DISHONEST, OR ACTED IN CONSCIOUS DISREGARD OF ITS OBL IGATION. PENALTY WILL NOT ALSO BE IMPOSED MERELY BECAUSE IT IS LAWFUL TO DO SO. WHETHER PENALTY SHOULD BE IMPOSED FOR FAILURE TO PERFORM A STATUTORY OBLIGATION IS A MATTER OF DISCRETION OF THE AUTHORITY TO BE EXERCISED JUDICIALLY AND ON A CONSIDERATION OF ALL THE RELEVANT CIRCUMSTANCES. EVEN IF A MINIMUM PENALTY IS PRESCRIBED, THE AUTHORITY COMPETENT TO IMPOSE THE PENALTY WILL BE JUSTIFIED IN REFUSING TO IMPOSE PENALTY, WHEN THERE IS A TECHNICAL OR VENIAL BREACH OF THE PROVISIONS OF THE ACT OR WHERE THE BRE ACH FLOWS FROM A BONA FIDE BELIEF THAT THE OFFENDER IS NOT LIABLE TO ACT IN THE MANNER PRESCRIBED BY THE STATUTE . 8. WE FURTHER PLACE UPON THE DECISION OF HON BLE APEX COURT IN THE CASE OF COMMISSIONER OF INCOME - TAX V. RELIANCE PETROPRODUCTS PVT. LTD. (20 10) 322 ITR 158 (SC) FOR THE FOLLOWING PROPOSITION THAT IT IS NOT THE INTENDMENT OF ACT THAT ASSESSEE WILL INVITE PENALTY U/S. 271(1) OF THE ACT IN CASE OF EVERY RETURN ITA NO.694 - 695/KOL/2012 A.Y 2006 - 07 KEDAR NATH CHITLANGIA & (HUF) V. ITO WD - 2 MALDA PAGE 4 WHEN THE CLAIM MADE IS NOT ACCEPTED BY THE ASSESSING OFFICER FOR ANY REASON. IN THE BA CKGROUND OF AFORESAID DISCUSSION AND PRECEDENT WE SET ASIDE THE ORDER OF AUTHORITIES BELOW AND DELETE THE PENALTY. 9 . IN THE RESULT, ASSESSEES APPEALS ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 07 /0 1 /201 5 SD/ - SD/ - ( MAHAVIR SINGH ) ( SHAMIM YAHYA ) JUDICIAL MEMBER ACCOUNTANT MEM BER KOLKATA, *DKP - 07 /0 1 /201 5 / COPY OF ORDER FORWARDED TO: - 1 . / APPELLANT KEDAR NATH CHITLANGIA (HUF) MARWARI PATTY LANE SOUTH BALUCHAR, MALDA - 732101 2 . / RESPONDENT - ITO WARD - (2) OFFICE OF THE INCOME TAX OFFICER , WARD - 2, NETAJI MARKET MALDA 732 101 3 . / CONCERNED CIT 4 . - / CIT (A) 5 . , / DR, ITAT, KOLKATA 6 . / GUARD FILE. BY ORDER/ , /TRUE COPY/ / ,