DCIT, Circle - 3(1), Kolkata , Kolkata V. Shri Vivek Kumar Bansal , Kolkata

ITA 902/KOL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6033 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 04-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AGAINST DATED PASSED
• Section: 271(1)(c); 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D, KOLKATA BEFORE SH. J.SUDHAKAR REDDY, ACCOUNTANT MEMBER & SH.S.S.VISWANETHRA RAVI, JUDICIAL MEMBER ITA NO.902/KOL/2018 (ASSESSMENT YEAR-2013-14) ORDER PER S.S. VISWANETHRA RAVI, JUDICIAL MEMBER THIS APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 12.01.2018 PASSED BY CIT(A)-I, KOLKATA FOR AY 2013-14 U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT ACT). 2. HEARD BOTH PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ISSUE RAISED BY THE REVENUE CHALLENGING THE ACTION OF CIT(A) IN CANCELLING THE PENALTY IMPOSED BY THE AO U/S 271(1)(C) OF THE ACT BY PLACING RELIANCE IN THE CASE OF CIT VS SSAS EMERALD MEADOWS IN ITA NO.380 OF 2015 DATED 23.11.2015. IT WAS POINTED OUT BY THE CIT(A) THAT ITAT, KOLKATA BENCH IN THE CASE OF JEETMAL CHORARIA VS ACIT IN ITA NO.956/KOL/2016 AND BY PLACING RELIANCE ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF SSAS EMERALD MEADOWS (SUPRA) HELD THAT PENALTY IMPOSED ON DEFECTIVE NOTICE IS NOT MAINTAINABLE. THE RELEVANT PORTION WHICH IS REPRODUCED HEREIN BELOW:- DCIT, CIRCLE-3(1), KOLKATA. VS SH. VIVEK KUMAR BANSAL, 39A, BALLYGUNGE CIRCULAR ROAD, KOLKATA-700019. PAN-ADDPB5138Q (APPELLANT) (RESPONDENT) APPELLANT BY SH.S.HALDER, SR.DR RESPONDENT BY SH.D.S.DAMLE, FCA DATE OF HEARING 16.01.2019 DATE OF PRONOUNCEMENT 23.01.2019 ITA NO.1281/KOL/2018 (ASSESSMENT YEAR-2012-13) I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERVED THAT A SIMILAR ISSUE WAS INVOLVED BEFORE THE ITAT, KOLKATA IN THE CASE OF JEETMAL CHORARIA -VS.- ACIT IN ITA NO. 956/KOL/2016 AND AFTER CONSIDERING ALL THE SUBMISSIONS MADE BY BOTH THE SIDES, WHICH ARE SIMILAR TO THE SUBMISSIONS MADE IN THE INSTANT CASE, THE TRIBUNAL CANCELLED THE PENALTY IMPOSED UNDER SECTION 271(L)(C) BY HOLDING THE SAME TO BE UNSUSTAINABLE VIDE PARAGRAPHS NO. 5 TO 15 OF ITS ORDER, WHICH READ AS UNDER:- '5. 'THE ID. COUNSEL FOR L!IC: ASSESSEE SUBMITTED BEFORE US THAT THE SHOW CAUSE NOTICE ISSUED U/S 2. /4 OF THE ACT BEFORE IMPOSING PENALTY DOES NOT CONTAIN THE SPECIFIC CHA.RGE AGAINST THE ASSESSEE NAMELY AS TO WHETHER THE ASSESSEE WAS GUILTY ASSESSMENT YEAR: 2010-2011 OF HAVING CONCEALED PARTICULARS OF INCOME OR HAVING FURNISHED INACCURATE PARTICULARS OF INCOME. A COPY OF THE SHOW CAUSE NOTICE U/S 274 OF THE ACT WAS FILED BEFORE US AND PERUSAL OF THE SAME REVEALS THAT AO HAS NOT STRUCK OUT THE IRRELEVANT PORTION IN THE SHOW CAUSE NOTICE AND THEREFORE THE SHOW CAUSE NOTICE DOES NOT SPECIFY THE CHARGE AGAINST THE ASSESSEE AS TO WHETHER THE CHARGE IS OF CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE SAME IS REPRODUCED FOR THE PURPOSE OF READY REFERENCE: 'HAVE CONCEALED THE PARTICULARS OF YOUR INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME.' THE APPELLANT'S A.R. HAS RELIED UPON THE DECISION OF THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. SSA'S EMERALD MEADOWS IN ITA NO.380 OF 2015 DATED 23.11.2015 WHEREIN THE HON'BLE KARNATAKA HIGH COURT FOLLOWING ITS OWN DECISION IN THE CASE OF CIT VS MANJUNATHA COTTON AND GINNING FACTORY (2013) 359 ITR 565 TOOK A .VIEW THAT IMPOSING OF PENALTY U/S 271(L)(C) OF THE ACT IS BAD IN LAW AND INVALID FOR THE REASON THAT THE SHOW CAUSE NOTICE U/S 274 OF THE ACT DOES NOT SPECIFY THE CHARGE AGAINST THE ASSESSEE AS TO WHETHER IT IS FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE A.R ALSO BROUGHT TO NOTICE THAT AS AGAINST THE DECISION OF THE HON'BLE KARNATAKA HIGH COURT THE REVENUE PREFERRED AN APPEAL IN SLP IN CC NO.11485 OF 2016 AND THE HON'BLE SUPREME COURT BY ITS ORDER DATED 05.08.2016 DISMISSED THE SLP PREFERRED BY THE DEPARTMENT. THE AIR ALSO BROUGHT TO RELIED UPON THE RATIO OF THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS SHRI SAMSON PERINCHERY IN ITA NO.1154 OF 2014 DATED 05.01.2017 WHEREIN THE HON'BLE BOMBAY HIGH COURT FOLLOWING THE DECISION OF THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS MANJUNATHA COTTON AND GINNING FACTORY (SUPRA) CAME TO THE CONCLUSION THAT IMPOSITION OF PENALTY ON DEFECTIVE SHOW CAUSE NOTICE WITHOUT SPECIFYING THE CHARGE AGAINST THE ASSESSEE CANNOT BE SUSTAINED. THE A/R HAS ALSO DRAWN ATTENTION TO THE DECISION OF ITAT,KOLKATA IN THE CASE OF SUVAPRASANNA BHATTACHARYA VS ACIT IN ITA NO.1303/KOL/2010 DATED 06.11.2015 WHEREIN IDENTICAL PROPOSITION HAS BEEN FOLLOWED BY THE TRIBUNAL. IN VIEW OF THE ABOVE DISCUSSION AND MATERIAL ON RECORD, IT IS OBSERVED THAT THE SHOW CAUSE NOTICE ISSUED IN THE PRESENT CASE U/S 274 OF THE ACT DOES NOT SPECIFY THE CHARGE AGAINST THE ASSESSEE AS TO WHETHER, IT IS FOR CONCEALMENT OF THE PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. THE A.O IN THE SAID SHOW CAUSE NOTICE U/S 274 OF THE ACT HAD ALSO NOT STRUCK OUT THE INAPPROPRIATE WORDS. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE AND THE RATIO OF THE DECISION OF THE JURISDICTIONAL ITAT IN THE CASE OF JEETMAL CHORARIA -VS.- ACIT(SUPRA), I AM OF THE VIEW THAT IMPOSITION OF PENALTY FOR CONCEALMENT OF INCOME U/S 271(1)(C) OF THE IT .ACT, 1961 CANNOT BE SUSTAINED. THEREFORE, IT IS HELD THAT IMPOSITION OF PENALTY IN ITA NO.1281/KOL/2018 (ASSESSMENT YEAR-2012-13) THE PRESENT CASE CANNOT BE SUSTAINED AND THE SAME IS DIRECTED TO BE CANCELLED. THIS GROUND IS ALLOWED. IN VIEW OF THE ABOVE DISCUSSION AND MATERIAL ON RECORD, IT IS OBSERVED THAT THE SHOW CAUSE NOTICE ISSUED IN THE PRESENT CASE U/S 274 OF THE ACT DOES NOT SPECIFY THE CHARGE AGAINST THE ASSESSEE AS TO WHETHER, IT IS FOR CONCEALMENT OF THE PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE AND THE RATIO OF THE DECISION OF THE JURISDICTIONAL ITAT IN THE CASE OF SUVAPRASANNA BHATTACHARYA VS ACIT(SUPRA), I AM OF THE VIEW THAT. IMPOSITION OF PENALTY FOR CONCEALMENT OF INCOME U/S 271(1)(C) OF THE I.T.ACT, 1961 CANNOT BE SUSTAINED. THEREFORE, IT IS HELD THAT IMPOSITION OF PENALTY IN THE PRESENT CASE CAN NOT BE SUSTAINED AND THE SAME IS DIRECTED TO BE CANCELLED. THUS, GROUND NO.1,2 &3 ARE ALLOWED. 3. IN VIEW OF THE ABOVE, WE FIND NO INFIRMITY IN THE ORDER OF CIT(A) AND IT IS JUSTIFIED. 4. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 23.01.2019. SD/- SD/- (J.SUDHAKAR REDDY) (S.S.VISWANETHRA RAVI) ACCOUNTANT MEMBER JUDICIAL MEMBER [ DATE:-23.01.2019 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT- DCIT, CIRCLE-3(1), KOLKATA. 2. RESPONDENT- SH. VIVEK KUMAR BANSAL, 39A, BALLYGUNGE CIRCULAR ROAD, KOLKATA-700019. 3. CIT-KOLKATA 4. CIT(APPEALS)-KOLKATA 5. DR: ITAT -KOLKATA BENCHES BY ORDER AR/H.O.O ITAT, KOLKATA