Bijoy Kumar Sanghi, Burdwan V. I.T.O ward2(3) burdwan, Burdwan

ITA 777/KOL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83064 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2014
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 11-04-2012
• Court: TRIBUNAL
• Department Lawyers: DAVID Z CHAWNGTHU ADD L
• Keywords: Speculation loss
• Section: 273B; 143(3)

Judgement Text

, SMC(A) , IN THE INCOME TAX APPELLATE TRIBUNAL SMC(A) BENCH : KOLKATA () BEFORE , ) [BEFORE SHRI MAHAVIR SINGH, JM] / I.T.A NO.777/KOL/2013 !'/ ASSESSMENT YEAR: 2006-07 BIJOY KUMAR SANGHI VS. INCOME-TAX OFFICER, WD-2 (3), BURDWAN (PAN: AMKPS3491F) ($% /APPELLANT ) (&'$%/ RESPONDENT ) DATE OF HEARING: 19.08.2014 DATE OF PRONOUNCEMENT: 27.08.2014 FOR THE APPELLANT: SHRI SHUVO CHAKRABORTY, ADVOCATE FOR THE RESPONDENT: SHRI DAVID Z. CHAWNGTHU, ADD L. CIT, SR. DR () / ORDER THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-DURGAPUR IN APPEAL NO. 41/CIT(A)/ASL/WD-2(3)/BWN/2009-10 DATED 06.02.2013. ASSESSMENT WAS FRAMED BY ITO, WARD-2(3), BURDWAN U/S. 143(3) OF THE INCOME-TAX AC T, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEARS 2006-07 VIDE HIS ORDER D ATED 13.12.2008. PENALTY UNDER DISPUTE WAS LEVIED BY ITO, WARD-2(3), BURDWAN U/S. 271(1)(C ) OF THE ACT VIDE HIS ORDER DATED 09.12.2009. 2. AT THE OUTSET, IT IS SEEN THAT THE CIT(A) HAS NO T ADJUDICATED THE PENALTY LEVIED BY AO U/S. 271(1)(C) OF THE ACT ON MERITS. CIT(A) SIMPLY BRUSHED ASIDE THE LEGAL PROVISIONS OF THE ACT AND NOTED THAT ONCE QUANTUM ASSESSMENT HAS NOT BEEN CHALLENGED, THE ASSESSEE CANNOT CHALLENGE THE PENALTY LEVIED U/S. 271(1)(C) OF THE ACT. RELEVANT PORTION OF CIT(A)S ORDER READS AS UNDER: IN THIS GROUND THE APPELLANT IS DISPUTING THE AOS ACTION IN IMPOSING PENALTY U/S. 271(1)(C) IN ITS CASE. IN THIS CASE THE APPELLANT HAD PREFERRED TO MOVE PETITION U/S. 264 AGAINST THE QUANTUM ASSESSMENT AND SUCH PETITION IS SEEN TO HAVE BEEN DISMISSED BY LD. CIT, BURDWAN. SUBSEQUENTLY, AN APPEAL WAS FILED BU T SUCH APPAL HAS ALSO BEEN WITHDRAWN. UNDER THE CIRCUMSTANCES, I DO NOT THINK THE APPELLANT IS IN A POSITION TO CHALLENGE THE IMPOSITION OF PENALTY. THE PENALTY I MPOSED IS THEREFORE CONFIRMED AND THIS GROUND OF APPEAL IS DISMISSED. 3. I HAVE HEARD BOTH THE PARTIES AND FOUND THAT THE ADDITIONS WERE MADE BY AO ON ACCOUNT OF UNACCOUNTED PURCHASES OF RS.35,587/-, ADDITION O F G.P. ON UNDISCLOSED SALES AT RS.1,423/- AND DISALLOWANCE OF SPECULATION LOSS OF RS.1,86,510 /-. THE ASSESSEE ALSO CARRIED THE ADDITIONS BEFORE CIT, BURDWAN U/S. 264 OF THE ACT, WHICH WAS ULTIMATELY CONFIRMED BY CIT, BURDWAN (AS IS NOTICED FROM THE STATEMENT OF FACTS FILED BEFORE US). NOW THE ASSESSEE HAS CHALLENGED THE ORDER OF CIT(A) ON LEGALITY BY RAISING FOLLOWING GR OUND NOS. 1 AND 2 APART FROM THE GROUNDS ON MERITS I.E. GROUND NOS. 3 TO 5: 2 ITA NO.777/K/2013 BIJOY KR. SANGHI. AY 06-07 1. FOR THAT LD. CIT(A) ERRED ON FACTS AND LEAVES B Y DISMISSING THE APPEAL U/S. 271(1)(C) THE SOLE GROUND OF WITHDRAWAL OF ASSESSME NT APPEAL BY THE APPELLANT. BUT THE SAID APPEAL WAS WITHDRAWN FOR CONVINCING OF CIT(A) SINCE THE APPEAL BEFORE CIT(A) IS NOT PERMISSIBLE UNDER LAW AGAINST THE SAME ORDER WH ERE A REVISION PETITION WAS PREVIOUSLY FILED AND DISPOSED. THEREFORE IT IS A M ERE TECHNICAL MATTER NOT THE ADMISSION OF CONCEALMENT. THEREFORE SUCH CRYPTIC APPEALLATE ORDER IS LIABLE TO BE QUASHED. 2. FOR THAT PENALTY PROCEEDING U/S. 271(1)(C) IS TO TALLY DISTINCT FROM ASSESSMENT PROCEEDING U/S. 143(3) AS PER SECTION 273B EXPLANAT ION (1) OF INCOME TAX ACT. THEREFORE WITHDRAWAL OF ASSESSMENT APPEAL HAVE NO B EARING ON PENALTY APPEAL AND THAT SHOULD HAVE BEEN DISPOSED ON MERIT. THEREFORE SUCH APPELLATE ORDER IS GROSSLY INCORRECT IN LAW. HENCE LIABLE TO BE NULLIFIED. 4. AFTER PERUSING THE ORDER OF CIT(A), I FIND THAT THE CIT(A) HAS NOT ACTED ACCORDING TO LAW. INSTEAD OF PASSING THIS TYPE OF ORDER, HE SHOU LD HAVE DELIBERATED ON MERITS OF THE CASE REGARDING LEVY OF PENALTY AND SHOULD HAVE ADJUDICAT ED THE ISSUE. WITHOUT ELABORATING ON LEGAL POSITION AND THE MERITS OF THE CASE, I NOW DIRECT T HE CIT(A) TO ADJUDICATE THE PENALTY ON MERITS AND ON THE ISSUES RAISED BEFORE HIM. IN TERM OF TH E ABOVE, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. ORDER PRONOUNCED IN OPEN COURT ON 27.08.2014. SD/- , (MAHAVIR SINGH) JUDICIAL MEMBER DATED : 27TH AUGUST, 2014 *+ ,- . JD.(SR.P.S.) () / &0 1(0!2- COPY OF THE ORDER FORWARDED TO: 1 . $% / APPELLANT SHRI BIJOY KUMAR SANGHI, STATION BAZAR, KATWA, BURDWAN-713130 2 &'$% / RESPONDENT ITO, WARD-2(3), BURDWAN. 3 . ) ( )/ THE CIT(A), DURGAPUR 4. 5. ) / CIT DURGAPUR 089 & / DR, KOLKATA BENCHES, KOLKATA '0 &/ TRUE COPY, ():/ BY ORDER, - /ASSTT. REGISTRAR .