Satya Hari Samui, Howrah V. ITO, Ward - 46(4), Kolkata, Kolkata

ITA 792/KOL/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 4771 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 5 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 08-10-2020
• Assessment Year: 1998-1999
• Appeal Filed On: 24-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAYANTA KHANRA JCIT LD
• Assessee Lawyers: SOUMITRA CHOUDHURY LD
• Keywords: Set aside

Judgement Text

1 IT A NO . 792/KOL/2018 A.Y 1998 - 99 SATYA HARI SAMUI , C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOLKATA [BEFORE HONBLE SHRI P.M. J AGTAP, V.P (KZ) AND HONBLE SHRI A. T. VARKEY, JM ITA NO. 7 92 /KOL/201 8 ASSESSMENT YEAR: 1998 - 99 SATYA HARI SAMUI PAN: ALAPS 2193R VS. INCOME TAX OFFICER, WARD 46(4) , KOLKATA APPELLANT RESPONDENT DATE OF HEARING (VIRTUAL) 08 - 10 - 2020 DATE OF PRONOUNCEMENT 14 - 10 - 2020 FOR THE APPELLANT SHRI SOUMITRA CHOUDHURY, ADVOCATE, LD.AR FOR THE RESPONDENT SHRI JAYANTA KHANRA, JCIT , LD. SR.DR ORDER SHRI A. T. VARKEY, JM THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT (A) , 1 4 , KOLKA TA D ATED 2 1 - 02 - 2018 FOR THE ASSESSMENT YEAR 1998 - 99 . 2. AT THE OUTSET ITSELF, SHRI SOUMITRA CHOUDHURY, ADVO CATE, LEARNED AUTHORISED REPRESENTATIVE ( IN SHORT, THE LD.AR) BROUGHT OUR NOTICE THAT IN THE QUANTUM APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER (S) OF THE AO/LD. CIT(A) FOR AY 1998 - 99 HAS BEEN SET ASIDE BACK TO THE FILE OF THE AO FOR FRESH ADJUD ICATION ON CERTAIN DIRECTION GIVEN BY AN ORDER DATED 09 - 09 - 2020 IN ITA NO. 606/KOL/2017 IN ASSESSEES OWN CASE. THEREFORE, ACCORDING TO THE LD. AR SINCE THE PROVISIONS FOR IMPOSING PENALTY HAS BEEN REMOVED BY THE TRIBUNAL (SUPRA), THE PENALTY WILL NOT SU RVIVE. 3. PER CONTRA, SHRI JAYANTA KHANRA, JCIT, LEARNED SR.DR ( IN SHORT, THE LD. DR) OPPOSING VEHEMENTLY THE SAID PLEA OF THE ASSESSEE CONTE N D ED THAT EVEN THOUGH THE TRIBUNAL HAS REMITTED THE ISSUE BACK TO THE AO FOR FRESH ADJUDICATION. HOWEVER, T HERE SHOULD BE AT LIBERTY TO THE AO TO INITIATE THE PENALTY PROCEEDINGS AS PER LAW, IF ANY, ADDITION(S) IS MADE AS PER LAW. 2 IT A NO . 792/KOL/2018 A.Y 1998 - 99 SATYA HARI SAMUI 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS. WE NOTE THAT IN THE QUANTUM ASSESSMENT IN ASSESSEES OWN CASE FOR THE A Y 1998 - 99 (SUPRA) HAS BEEN SET ASIDE BACK TO THE AO FOR FRESH ASSESSMENT BY AN ORDER DATED 09 - 09 - 2020 (SUPRA). SINCE THIS FACT COULD NOT BE CONTROVERTED BY THE LD. DR ( COPY OF THE SAID ORDER DATED 09 - 09 - 2020 IS AVAILABLE ON RECORD ), WE NOTE THAT VIDE ORD ER DATED 09 - 09 - 2020 IN ASSESSEES OWN CASE (SUPRA) FOR THE AY UNDER CONSIDERATION THE TRIBUNAL HAS REMITTED THE ISSUE BACK TO THE AO FOR FRESH ASSESSMENT. IN THE BACKDROP OF THIS SCENARIO, WE NOTE THAT THE PENALTY U/S. 271(1)( C) CANNOT SURVIVE WHEN THE B ASIS/FOUNDATION HAS GONE. THEREFORE, WE CANCEL THE IMPUGNED PENALTY IMPOSED BY THE AO VIDE HIS ORDER DATED 27 - 09 - 2016 . HOWEVER, THE AO IS AT LIBERTY TO INITIATE PENALTY PROCEEDING IF LAW PERMITS IN ACCORDANCE WITH LAW AFTER MAKING FRESH ASSESSMENT. 5. IN THE RESUL T, THE APPEAL OF ASSESSEE IS ALLOWED . ORDER IS PRONOUNCED IN THE OPEN COURT ON 14 OCTOBER, 2020. S D / - S D / - ( P.M. JAGTAP ) (ABY. T. VARKEY) VICE PRESIDENT (KZ) JUDICIAL MEMBER DATED : 14 OCTOBER, 2020 **PP(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT / ASSESSEE: SATYA HARI SAMUI DHARSA COLONY P.O G.I.P COLONY, RAMRAJATALA, HOWRAH - 711 112. 2 RESPONDENT / DEPARTMENT: THE I.T.O. W - 46(4), 2 GOVT PLACE (WEST), KOLKATA . 3. 4. 5. CIT(A) - , KOLKATA (SENT THROUGH E - MAIL) CI T - , KOLKATA. DR, ITAT, KOLKATA. (SENT THROUGH E - MAIL) BY ORDER, / TRUE COPY, ASSISTANT REGISTRAR