Ashis Roy Chowdhury, Kolkata V. I.T.O Wd - 33(2),kolkata, Kolkata

ITA 718/KOL/2013

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3162 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-02-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 04-04-2013
• Court: TRIBUNAL
• Department Lawyers: SUCHE TA CHATTOPADHYAY JCIT LD
• Assessee Lawyers: ANIKESH BANERJEE LD
• Keywords: Unexplained cash credit
• Section: 40A(3); 143(3); 10B; 68; 2

Judgement Text

ITA NO. 718/KOL/2013-C-AM SHRI ASHIS ROY CHOWDHURY 1 IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, KOLKATA BEFORE : SHRI MAHAVIR SINGH, JUDICIAL MEMBER, AND SHRI M. BALAGANESH, ACCOUNTANT MEMBER I.T.A NO. 718/KOL/2013 A.Y 2007-08 ASHIS ROY CHOWDHURY VS. I.T.O WARD NO. 33(2), KOLKATA PAN: ADHPR 2909K (APPELLANT) (RE SPONDENT) FOR THE APPELLANT: SHRI ANIKESH BANERJEE, AD VOCATE, LD.AR FOR THE RESPONDENT : SMT. SUCHE TA CHATTOPADHYAY, JCIT, LD.SR.DR DATE OF HEARING: 01-02-2016 DATE OF PRONOUNCEMENT: 03-02-201 6 ORDER SHRI M.BALAGANESH, AM THIS APPEAL OF THE ASSESSEE ARISES OUT OF THE ORDER OF THE LEARNED CIT(A)-XIX, KOLKATA IN APPEAL NO. 229/CIT(A)-XIX/CIRCLE-33(2)/K OL/12-13 DATED 08/01/2013 FOR THE ASST YEAR 2007-08 AGAINST THE ORDER OF PENA LTY LEVIED BY THE LEARNED AO U/S 271(1) ( C) OF THE INCOME TAX ACT, 1961 (HEREINAFTE R REFERRED TO AS THE ACT). 2. THE BRIEF FACTS OF THIS ISSUE ARE THAT THE A SSESSEE IS ENGAGED IN THE BUSINESS OF CIVIL CONSTRUCTION. HE HAD TAKEN CONTRACT RECEIPTS FROM M/S. BHARAT PETROLEUM CORPORATION LIMITED [ IN SHORT M/S. BPCL]. THE AS SESSMENT U/S. 143(3) OF THE ACT WAS COMPLETED BY MAKING FOLLOWING ADDITIONS:- 1) DISALLOWANCE U/S. 40A(3) OF THE ACT RS.22,360/- 2) UNEXPLAINED CASH CREDIT U/S. 68 OF THE ACT RS.1, 00,000/-, AND 3) INTEREST ON INCOME TAX REFUND RS. 3,195/- 2.1 THE LEARNED AO LEVIED THE PENALTY U/S. 271(1)( C) OF THE ACT IN RESPECT OF SAID THREE ADDITIONS. THE ASSESSEE DID NOT PREFER ANY AP PEAL AGAINST THE ORIGINAL ASSESSMENT ITA NO. 718/KOL/2013-C-AM SHRI ASHIS ROY CHOWDHURY 2 FRAMED U/S. 143(3) OF THE ACT, BUT HE PREFERRED APP EAL BEFORE THE LEARNED CITA AGAINST THE ORDER OF PENALTY LEVIED U/S. 271(1)(C ) OF THE ACT. ON 1 ST APPEAL, THE LD.CIT(A) HAS UPHELD THE ORDER OF THE LD.AO IN LEVYING PENALTY U /S. 271(1)( C) OF THE ACT. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US ON THE FOLLOW ING GROUNDS:- 1. FOR THAT THE PENALTY ORDER IS BAD IN LAW. 2. FOR THAT THE ASSESSEE ACCEPTED THE DEMAND & PAID THE TAX. NO FURTHER DISPUTE WAS RAISED BY THE ASSESSEE. AS PER THE JUDG EMENT OF THE HON'BLE SUPREME COURT IN 'SRI SHADILAL SUGAR & GENERAL MILL S LTD. VS CIT [1987) 168 ITR 705, IT IS NOT A FIT CASE FOR PENALTY. 3. FOR THAT THE PENALTY ORDER IS ERRONEOUS. THE DIR ECTION WAS MADE IN THE PENALTY ORDER NOT TO ADD RS.22, 260/- FOR VIOLA TION OF SEC 40(A)3 OF THE ACT. BUT IN THE CALCULATION OF PENALTY THE AMOU NT WAS TAKEN. THE SAME MISTAKE WAS MADE IN THE APPEAL ORDER. THE OBSE RVATION OF THE LD. APPELLATE AUTHORITY IS NOT JUSTIFIED. 4. FOR THAT THE APPELLANT SEEKS KIND PERMISSION TO RAISE NEW CONTENTIONS AND GROUNDS. 2.2 THE LD.AR ARGUED THAT THOUGH THE LD.AO HAD MADE THE SAID ADDITIONS IN THE ASSESSMENT U/S. 143(3) OF THE ACT, THE PENALTY PRO CEEDINGS U/S. 271(1)( C) OF THE ACT WAS INITIATED BY HIM ONLY IN RESPECT OF UNEXPLAINED CASH CREDIT OF RS. 1 LAKH. HENCE, HE PRAYED BEFORE US FOR CANCELLATION OF SAID PENALT Y LEVIED IN RESPECT OF OTHER TWO ADDITIONS. HE ALSO ARGUED THAT THE ASSESSEE HAD ALS O AGREED FOR THE ADDITION MADE TOWARDS UNEXPLAINED CASH CREDIT U/S. 68 OF THE ACT DURING THE COURSE OF ASSESSMENT PROCEEDINGS IN GOOD FAITH. HE ALSO RELIED UPON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF SRI SHADILAL SUGAR & GENERAL M ILLS LTD VS CIT REPORTED IN 168 ITR 705 (SC). IN RESPONSE TO THIS, THE LD. SR.DR VE HEMENTLY SUPPORTED THE ORDER OF THE LD.AO. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS. WE FIND FROM THE ASSESSMENT ORDER THAT THE PENALTY WAS NOT INITIATED BY THE LD.AO IN RESPECT OF ADDITIONS MADE U/S. 40A(3) OF THE ACT AND ON ACCOUNT OF INTEREST ON INCOME TAX REFUN D. HENCE, THE LEVY OF PENALTY ON THIS ADDITION IS HEREBY DIRECTED TO BE CANCELLED. ITA NO. 718/KOL/2013-C-AM SHRI ASHIS ROY CHOWDHURY 3 4. APROPOS THE ADDITION MADE IN RESPECT OF CASH CRE DIT U/S. 68 OF THE ACT OF RS. 1 LAKH, IT IS SEEN THAT THE ASSESSEE WAS IN RECEIPT O F RS. 1 LAKH FROM M/S. ECON INDIA, WHICH GOT CREDITED IN HIS BANK ACCOUNT AND HAD CO ME FORWARD TO OFFER THE SAME IN GOOD FAITH BEFORE THE LD.AO BEFORE THE COMPLETION O F ASSESSMENT PROCEEDINGS. THE LD. AO HAD NOT PROVED THE CONCEALMENT MADE BY THE ASSE SSEE IN THIS REGARD, WHICH IS ONE OF THE CRUCIAL INGREDIENT BEFORE INITIATING PENALTY PROCEEDINGS. IN VIEW OF THESE FACTS, THE ORDER OF LEVYING PENALTY U/S. 271(1)( C) OF THE ACT IN RESPECT OF THIS ADDITION IS HEREBY DIRECTED TO BE DELETED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED AS STATED ABOVE. THIS ORDER IS PRONOUNCED IN OPEN COURT ON 03-02- 2016 1.. THE APPELLANT: SHRI ASHIS ROYCHOWDHURY 74/2 BA NERJEEPARA ROAD, KOL-41. 2 THE RESPONDENT- THE I T O, W 33(2), 10B MIDDLETO N ROW, KOL-71. 3 /THE CIT, 4.THE CIT(A ) 5. DR, KOLKATA BENCH 6. GUARD FILE. TRUE COPY, BY ORDER, ASSTT REGISTRAR **PRADIP SPS SD/- ( MAHAVIR SINGH, JUDICIAL MEMBER ) SD/- (M. BALAGANESH, ACCOUNTANT MEMBER) DATE: DATE 03-02-2016 COPY OF THE ORDER FORWARDED TO:-