ACIT, Central Circle-1(1), Kolkata, Kolkata V. Basil International Limited, Kolkata

ITA 723/KOL/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6713 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 12-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANKAR HALDER
• Assessee Lawyers: N O N E
• Section: 271(1)(c); 143(3); 153A; 15; 139

Judgement Text

1 ITA NO.723/KOL/2017 BASIL INTERNATIONAL LTD., AY:2 009-10 , D , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: KOL KATA ( ) . . , . . ! , ' #$ ) [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT & SHRI A. T. VARKEY, JM] I.T.A. NO. 723/KOL/2017 ASSESSMENT YEAR: 2009-10 ASSISTANT COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-1(1), KOLKATA VS. BASIL INTERNATIONAL LTD. (PAN: AACCB0938K) APPELLANT RESPONDENT DATE OF HEARING 10.01.2019 DATE OF PRONOUNCEMENT 23.01.2019 FOR THE APPELLANT SHRI SANKAR HALDER, JCIT, SR. DR FOR THE RESPONDENT N O N E ORDER PER SHRI A.T.VARKEY, JM THIS APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A)-20, KOLKATA DATED 13.01.2017 FOR AY 2009-10. 2. AT THE OUTSET ITSELF IT IS BROUGHT TO OUR NOTICE THAT THE LD. CIT(A) HAS HELD THE PENALTY LEVIED U/S. 271(1)(C) OF THE INCOME-TAX ACT , 1961 PURSUANT TO SEC. 153A PROCEEDING. PURSUANT TO THE SEARCH AFTER GETTING NOTICE U/S. 15 3A OF THE ACT THE ASSESSEE HAD FILED RETURN OF INCOME DISCLOSING AN AMOUNT OF RS.1,13,11,393/- AND THE AO COMPLETED THE ASSESSMENT AT THE SAME FIGURE, THEREFORE, THE LD. CIT(A) HAS DELETED THE ADDITION REFERRING TO THE RATIO LAID BY THE COORDINATE BENCH OF THIS TRIBUNAL IN TH E CASE OF AJIT KUMAR SURANA VS. ACIT, ITA NO. 835 TO 839/KOL/2013 DATED 18.03.2014 AND TH E DECISION OF ITAT, MUMBAI BENCHES IN THE CASE OF YOGESH PARIKH IN ITA NO. 675 0/MUM/2008, 6751/MUM/2008 AND 3409/MUM/2009 BY OBSERVING AS UNDER: I HAVE CONSIDERED THE FINDING OF THE AO IN THE PE NALTY ORDER AND THE WRITTEN SUBMISSION ALONG WITH DIFFERENT CASE LAWS FILED BY THE AR DURI NG THE APPELLATE PROCEEDINGS. I FIND THAT THE ASSESSEE FILED ITS RETURN OF INCOME IN RESPONSE TO NOTICE U/S. 153A DECLARING TOTAL INCOME OF RS.11311393/- AND THE AO HAS COMPLETED THE ASSES SMENT AT THE TOTAL INCOME OF THE SAME AMOUNT I.E. RS.11311393/-. THUS, IT IS CLEAR THAT T HE AO COULD NOT FIND ANY INACCURATE 2 ITA NO.723/KOL/2017 BASIL INTERNATIONAL LTD., AY:2 009-10 PARTICULARS OR CONCEALMENT OF INCOME DURING ASSESSM ENT PROCEEDINGS U/S 153A READ WITH SECTION 143(3) I.E. RETURNED INCOME HAS BEEN ACCEPT ED IN THIS CASE. UNDER THESE CIRCUMSTANCES, I HAVE ALSO CONSIDERED THE RATIO DEC IDED BY THE JURISDICTIONAL KOLKATA BENCH OF ITAT IN THE CASE OF AJIT KUMAR SURANA VS ACIT, I TA NO.835 TO 839/KOL/2013 DT.18-03- 2014. IN THIS CASE IT HAS BEEN HELD THAT 'CONCEALME NT OF INCOME IS TO BE DETERMINED WITH REFERENCE TO RETURN OF INCOME FILED IN RESPONSE TO NOTICE U/S. 153A OF THE I T ACT AND THAT THERE IS COMPLETE DETACHMENT OF SUCH PROCEEDINGS FR OM REGULAR ASSESSMENT PROCEEDING.' THE AR HAS FURTHER RELIED ON THE CASE LAW OF YOGESH PAR IKH IN ITA NO.6750/MUM/2008, 6751/ MUM/2008 & 3409/MUM/2009 WHEREIN THE MUMBAI BENCH O F ITAT HAS OBSERVED THAT IN SEARCH CASE RETURN FILED U/S 139 CANNOT BE CONSIDER ED. ONLY RETURN FIRED U/S 153A IS TO-BE CONSIDERED FOR ASSESSMENT AND IN CASE ANY FURTHER C ONCEALMENT IS FOUND IN IT ONLY THEN PENALTY U/S 271(1)(C) CAN BE LEVIED. I HAVE CONSIDERED ALL THE CASE LAWS BROUGHT ON RECO RD BY THE AR ON THIS ISSUE. I FIND THAT ALL THE JUDICIAL AUTHORITIES ARE UNANIMOUS THAT CONCEAL MENT OR INACCURATE PARTICULARS FOUND IN THE RETURN FILED IN RESPONSE TO NOTICE U/S 153A WIL L BE THE ONLY BASIS FOR PENALTY U/S 271(1)(C). COURTS HAVE ALSO HELD THAT RETURN FILED EARLIER U/S 139 FOR THE SAME ASSESSMENT YEAR CANNOT BE THE BASIS FOR PENALTY IN ORDER PASSED U/S 153A/1 43(3). KEEPING IN VIEW VARIOUS CASE LAWS INCLUDING SOME PASSED BY THE JURISDICTIONAL KOLKATA TRIBUNAL I.E. IN THE CASE OF AJIT KUMAR SURANA (SUPRA), ASSESSEE'S APPEAL ON GROUNDS NO 1 T O 11 ARE ALLOWED. AGGRIEVED, REVENUE IS IN APPEAL BEFORE US. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE NOTE THAT SINCE FACTUAL ASPECT COULD NOT BE CONTROVERTED BY THE LD. DR BEFORE US AND THE LD. CIT(A) DELETED THE ADDITION ON THE R ATIO LAID DOWN BY THE TRIBUNAL, RESPECTFULLY FOLLOWING THE TRIBUNALS ORDER, WE CON FIRM THE ORDER OF THE LD. CIT(A) AND DISMISS THE APPEAL OF THE REVENUE. 4. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSE D. ORDER IS PRONOUNCED IN THE OPEN COURT ON 23RD JANUA RY, 2018. SD/- SD/- (P. M. JAGTAP) (ABY. T. VARKEY) VICE PRESIDENT JUDICIAL MEMBER DATED : 23RD JANUARY, 2019 JD.(SR.P.S.) 3 ITA NO.723/KOL/2017 BASIL INTERNATIONAL LTD., AY:2 009-10 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT ACIT, CENTRAL CIRCLE-1(1), KOLKATA 2 RESPONDENT BASIL INTERNATIONAL LTD., 72A, P. C. SARKAR SARANI, 1 ST FLOOR, KOLATA-700 019. 3. 4. CIT(A)-20, KOLKATA(SENT THROUGH E-MAIL) CIT, KOLKATA. 5. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR