Smt. Sushila Devi Biyani, Kolkata V. ITO, Ward - 36(2), Kolkata, Kolkata

ITA 804/KOL/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2560 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-06-2010
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 23-04-2010
• Court: TRIBUNAL
• Department Lawyers: K K TRIPATHI
• Assessee Lawyers: S M SURANA

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH - A , KOLKATA ( ) BEFORE . . , SHRI B.R.MITTAL, JUDICIAL MEMBER. /AND . . , , SHRI C.D. RAO, ACCOUNTANT ME MBER . / I.T.A.NO. 804/KOL/2010 / ASSESSMENT YEAR 2005 - 06 SUSHIL A DEVI BIYANI, 18, RABINDRA SARANI, 3 RD FLOOR, PODDAR COURT, KOLKATA 700 001. AEDPB 7224 D - - - VERSUS - . ITO, WARD 36(2), KOLKATA. ( / A PPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI S.M.SURANA, AR / FOR THE RESPONDENT : / SHRI K.K.TRIPATHI, DR / ORDER . . , SHRI B.R.MITTAL, JUDICIAL MEMBER. THE ASSESSEE HAS FI LED THIS APPEAL AGAINST ORDER DT.1.2.2010 OF THE COMMISSIONER OF INCOME - TAX (APPEALS) XX, KOLKATA CONFIRMING THE PENALTY OF RS.35,549 LEVIED U/S.271(1)(C) OF THE INCOME - TAX ACT,1961 FOR THE ASSESSMENT YEAR 2005 - 06. 2. THE FACTS RELEVANT ARE THAT WHILE COMP LETING ASSESSMENT U/S.143(3) OF THE ACT, THE ASSESSING OFFICER DISALLOWED CLAIM OF INTEREST AMOUNTING TO RS.95,192 AND ALSO DID NOT ALLOW SET OFF OF LOSS AMOUNTING TO RS.5,394 AND RS.2,778 ON THE GROUND THAT THEY WERE SPECULATIVE IN NATURE. THE ASSESSING O FFICER INITIATED PROCEEDINGS U/S.271(1)(C) OF THE ACT AND SINCE THE ASSESSEE DID NOT RESPOND TO THE NOTICE, THE ASSESSING OFFICER CAME TO CONCLUDE THAT THE ASSESSEE HAD CONCEALED HER INCOME AND FILED INACCURATE PARTICULARS OF HER TOTAL INCOME TO THE EXTENT OF RS.1,03,364 (I.E., RS.95,192 + RS. 5,394 + RS. 2,778). HE, THEREFORE, IMPOSED PENALTY OF RS. 35,549 @ 100% OF THE TAX SOUGHT TO BE EVADED. IN APPEAL, THE LEARNED CIT(A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER ON THE OBSERVATION THAT THE ASSESSEE F AILED TO OFFER ANY EXPLANATION. 3. BEFORE US, THE LEARNED AR OF THE ASSESSEE CONTENDED THAT THE IMPUGNED PENALTY HAS BEEN LEVIED BY THE ASSESSING OFFICER AND CONFIRMED BY THE LEARNED / I.T.A.NO.804/KOL/20 10 2 CIT(A) ON THE DISALLOWANCE OF CLAIM OF THE ASSESSEE , WHICH CANNOT BE A GR OUND FOR IMPOSITION OF PENALTY U/S.271(1)(C) OF THE ACT. IN SUPPORT OF THIS HE PLACED RELIANCE ON THE DECISION OF HONBLE APEX COURT IN THE CASE OF CIT V. RELIANCE PETROPRODUCTS PVT. LTD [(2010) 322 ITR 158 (SC)]. THE LEARNED DR, ON THE OTHER HAND, SUPPORT ED THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF THE LEARNED REPRESENTATIVES OF THE PARTIES AND HAVE ALSO GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND THE DECISION OF HONBLE APEX COURT RELIED ON BY TH E LEARNED AR OF THE ASSESSEE. IN THE CASE OF CIT V. RELIANCE PETROPRODUCTS PVT. LTD.,[(2010) 322 ITR 158 (SC)] , HONBLE APEX COURT HAS HELD THAT MERE MAKING OF A CLAIM, WHICH IS NOT SUSTAINABLE IN LAW, BY ITSELF, WILL NOT AMOUNT TO FURNISHING INACCURATE PA RTICULARS REGARDING THE INCOME. SUCH A CLAIM MADE IN THE RETURN CANNOT AMOUNT TO FURNISHING INACCURATE PARTICULARS . IN THE PRESENT CASE AT HAND, THE ADDITIONS IN QUESTION HAVE BEEN MADE IN THE ASSESSMENT BY WAY OF DISALLOWANCE OF THE CLAIM OF THE ASSESEE. THEREFORE, THE SAME CANNOT BE A GROUND FOR IMPOSITION OF PENALTY U/S.271(1)(C) OF THE ACT, IN VIEW OF THE DECISION OF HONBLE APEX COURT IN THE CASE OF CTI V. RELIANCE PETROPRODUCTS PVT. LTD (SUPRA). ACCORDINGLY, WE ALLOW THE APPEAL OF THE ASSESSEE AND CANCEL THE PENALTY OF RS.35,549 LEVIED U/S.271(1)(C) OF THE ACT. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 11.06.2010 SD/ - SD/ - ( . . ) (C.D. RAO), A CCOUNTANT MEMBER ( . . ), ( B.R.MITTAL ), JUDICIAL MEMBER ( ) DATE : 11.06 . 2010 ( /) H.K.PADHEE / SNR.PRIVATE SECRETARY. / I.T.A.NO.804/KOL/20 10 3 - COPY OF THE ORDER FORWARDE D TO : 1. / THE APPELLANT : SUSHIL DEVI BIYANI, 18, RABINDRA SARANI, 3 RD FLOOR, PODDAR COURT, KOLKATA 700 001. 2 / THE RESPONDENT - ITO, WARD 36(2), KOLKATA 3. / THE CIT, 4. ( )/ THE CIT(A), 5. / DR, KOLKATA BENCH 6. GUARD FILE . / TRUE COPY , / BY ORDER , / DEPUTY REGISTRAR .