ITO, Ward - 5(3), Kolkata V. M/s. Eastern Polycraft Industries (P) Ltd., Kolkata

ITA 775/KOL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7957 (ITAT-KOLKATA)
• Duration Of Justice: 10 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-03-2010
• Appeal Filed By: Department
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 08-05-2009
• Court: TRIBUNAL
• Department Lawyers: B R PURUKAYASTHA
• Keywords: Opportunity of being heard; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : C BENCH: K OLKATA (BEFORE HON.SMT. DIVA SINGH, JM & HON. SHR I B.K.HALDAR,AM) ITA NO.775/KOL/09 ASSESSMENT YEAR: 2004-05 INCOME-TAX OFFICER VS. M/S. EASTERN POLYC RAFT WARD 5(3), KOLKATA INDUSTRIES (P) LTD. PAN:AAACE8206D (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI B.R. PURUKAYASTHA, SR.DR RESPONDENT BY: NONE ORDER PER SHRI B.K.HALDAR, AM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A)- V, KOLKATA DATED 29-1-2009 FOR THE A.Y 2004-05 ON A N ORDER PASSED BY THE A.O U/S.271(1)(C) OF THE I.T.ACT61. 2. THE REVENUE HAS TAKEN FOLLOWING GROUNDS OF APPE AL:- A. THAT THE LD.CIT(A) HAS ERRED ON FACTS AND IN LAW IN DELETING THE PENALTY OF RS.2,62,080/- IMPOSED U/S.271(1)(C) ON TECHNICAL GROUND THAT PRIOR APPRO VAL OF JT. CIT WAS NOT OBTAINED U/S.274(2) OF THE ACT WHER EAS THE ADDL.CIT, RANGE-5, KOLKATA, HAS ACCORDED THE NECESSARY APPROVAL VIDE HIS LETTER DATED 22.6.07. B. THAT LD.CIT(A) HAS ERRED ON FACTS AND IN LAW IN DELETING THE SAID PENALTY OF RS.2,62,080/- WITHOUT VERIFYING THE ASSTT. RECORDS OR WITHOUT SEEKING OF A.OS REPORT I N THE MATTER OF PRIOR APPROVAL AS REQUIRED U/S.274(2) OF THE ACT. C. THAT THE LD.CIT(A) HAS FAILED TO APPRECIATE THAT FAILURE TO MENTION IN THE PENALTY ORDER ABOUT THE PRIOR APPROV AL AS REQUIRED BY SEC.274(2) OF THE ACT, IS A CURABLE DEF ECT AND NOT ILLEGALITY TO VITIATE THE VALIDITY OF THE SAID ORDER. D. THAT THE LD.CIT(A) HAS FAILED TO DECIDE THE LEV Y OF PENALTY ON MERITS AND ON THIS GROUND THE MATTER BE RESTORED TO THE FILE OF CIT(A) FOR ADJUDICATION ON MERITS. E. THAT THE APPELLANT CRAVES FOR LEAVE TO ADD, DELE TE OR MODIFY ANY OF THE GROUNDS OF APPEAL BEFORE OR AT TH E TIME OF HEARING. 2 3. THE A.O VIDE ORDER DATED 22/06/2007 IMPOSED A PE NALTY U/S.271(1)( C) OF THE ACT AMOUNTING TO RS.2,62,080/-. 4. AGGRIEVED THE ASSESSEE FILED APPEAL BEFORE THE L D.CIT(A). 5. THE LD.CIT(A) HAS CANCELLED THE ABOVE PENALTY OR DER. RELEVANT PORTION OF THE APPELLATE ORDER IS REPRODUCED HEREUNDER:- I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE AND THE SUBMISSION MADE BY THE APPELLANT COMPANY. HOWEVER, WITHOUT GOING INTO THE MERIT OF THE CASE T HE PENALTY IMPOSED BY ITO, WD.5(3), KOLKATA CANNOT BE SUSTAINED ON TECHNICAL GROUND AS THE PRIOR APPROVAL OF THE JOINT COMMISSIONER OF INCOME TAX AS REQUIRED U/S.274 OF THE I.T.ACT 1961 HAS NOT BEEN OBTAINED. NO WHERE THE ASSESSMENT ORDER IT IS MENTIONED THAT THE ORDER U/S.271(1)( C) WAS PASSED AFTER TAKING PRIOR APPROV AL OF THE JOINT COMMISSIONER OF INCOME TAX. THUS, THE PEN ALTY IMPOSED U/S.271(1)( C) OF THE I.T.ACT 1961 IN THIS CASE BY THE AO IS CANCELLED. 6. AGGRIEVED THE REVENUE HAS FILED APPEAL BEFORE TH E TRIBUNAL. 7. ON THE DATE OF HEARING NONE APPEARED ON BEHALF OF THE RESPONDENT. WE.THEREFORE, PROCEED TO DISPOSE OF THE APPEAL QUO THE RESPONDENT. 8. THE LD.DR HAD THE RELEVANT RECORDS AND HAS FURNI SHED COPIES OF AOS LETTER NO.ITO/WD.5(3)/KOL/PENALTY ORDER/07-08/336 D ATED 21/06/2007 SEEKING APPROVAL OF DRAFT PENALTY ORDER IN THE CASE OF THE ASSESSEE FROM THE ADDL. COMMISSIONER OF INCOME TAX, RANGE-5, KOLKATA AND HI S LETTER NO.ADDL.CIT, R- 5/PENALTY APPROVAL/2007-08/212 DATED 22/06/2007. 8.1 IN VIEW OF THE ABOVE, WE HOLD THAT THE LD.CIT(A ) WAS NOT JUSTIFIED IN COMING TO THE CONCLUSION THAT NO APPROVAL AS REQUIR ED U/S.274 OF THE I.T.ACT WAS OBTAINED BY THE AO BEFORE LEVYING THE IMPUGNED PENALTY. THUS, WE SET ASIDE THE IMPUGNED ORDER OF THE LD.CIT(A) AND REMIT THE MATTER BACK TO HIS FILE WITH THE DIRECTION THAT A FRESH ORDER BE PASSED AS PER LAW, AFTER GIVING THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD. 3 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALL OWED FOR STATISTICAL PURPOSE. . ORDER PRONOUNCED ON 26-3-10. SD/- SD/- ( DIVA SINGH ) (B.K.HALDAR ) JUDICIAL MEMBER DT.26-3-10 ACCOUNTANT MEMBER COPY FORWARDED TO :- 1. I.T.O WARD 5(3), KOLKATA P-7 CHOWRINGHEE SQ, AAYKAR BHAVAN, 8 TH FL., KOL-1 2. M/S. EASTERN POLYCRAFT INDUSTRIES (P) LTD 1/1A VANS ITTART ROW, KOL-1 3. CIT(A)- 4. CIT(WB) 5 D.R., ITAT, KOLKATA. *PP TRUE COPY BY ORDER DEPUTY REGISTRAR, ITAT, KOLKATA 4