DCIT, Circle - 1, Kolkata, Kolkata V. M/s. Sree Gouri Shankar Jute Mills Ltd., Kolkata

ITA 945/KOL/2010

• Counselvise Citation: 94523514 RSA 2010
• Duration Of Justice: 11 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-04-2011
• Appeal Filed By: Department
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 07-05-2010
• Court: TRIBUNAL
• Department Lawyers: V A RAJU
• Assessee Lawyers: SUBHAS AGARWAL
• Keywords: Rectification of order
• Section: 43B; 143(3)

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BEN CH C, KOLKATA () BEFORE , , , , , SHRI MAHAVIR SINGH, JUDICIAL MEMBER. /AND . .. . ! ! ! !. .. . , '# SHRI C.D.RAO, ACCOUNTANT MEMBER $ $ $ $ / ITA NO . 945/KOL/2010 %& '(/ ASSESSMENT YEAR : 2004-05 (*+ / APPELLANT ) D.C.I.T., CIRCLE-1, KOLKATA - % - - VERSUS - . (-.*+/ RESPONDENT ) M/S.SREE GOURI SHANKAR JUTE MILLS LTD., KOLKATA (PAN: AABCG 1157 E) *+ / 0 '/ FOR THE APPELLANT: SHRI V.A.RAJU -.*+ / 0 '/ FOR THE RESPONDENT: SHRI SUBHAS AGARWAL '1 / ORDER ( (( ( . .. . ! ! ! !. .. . ) )) ), , , , '# PER SHRI C.D.RAO, AM THIS APPEAL IS FILED BY THE REVENUE AGAINST THE OR DER DATED 31.03.2010 OF THE CIT(A)-I, KOLKATA PERTAINING TO A.YR. 2004-05 2. THE ONLY ISSUE RAISED BY THE REVENUE IN THIS AP PEAL IS IN RESPECT OF DELETION OF PENALTY OF RS.21,08,228/- LEVIED BY THE AO U/S 271( 1)(C) OF THE IT ACT 3. THE BRIEF FACTS OF THE ISSUE ARE THAT THE AO LEV IED PENALTY OF RS.21,08,228/- BY OBSERVING THAT :- THE ASSESSEE FURNISHED INACCURATE PARTICULARS OF I NCOME IN RESPECT OF SAID AMOUNT OF RS.59,05,401/- AND THE EXPLANATION OF THE ASSESSEE FURNISHED ON 15.12.08 IN THE WRITTEN SUBMISSION IS NOT FOUND TO BE ACCEPTABLE, I AM CONSTRAINT TO IMPOSE A PENALTY U/S 271(1)(C) OF THE IT ACT, WHICH IS EQUIVALENT TO 100% OF THE AMOUNT OF TAX SOUGHT TO BE EVADED BY THE ASSESSEE BY FURNISHING 2 INACCURATE PARTICULARS OF INCOME TO THE EXTENT OF R S.59,05,401/- IN THE RETURN OF INCOME FURNISHED FOR THE ASSESSMENT YEAR 2004-05. 3.1. HE FURTHER MENTIONED THAT SAID AMOUNT OF RS.59 ,05,401/- WAS CONFIRMED BY THE LD. CIT(A) AS WELL AS THE ITAT. 3.2. ON APPEAL THE LD. CIT(A) HAS DELETED THE SAME IN HIS ORDER DATED 02.02.2010 BY OBSERVING THAT :- IN THE WRITTEN SUBMISSION FILED BY THE A/R BEFORE ME AND TAKING INTO ACCOUNT THE VARIOUS JUDICIAL PRONOUNCEMENTS, CITED CERTAIN FACTS ARE OBVIOUS. (A) THE AO HAS NOT DISPUTED THE CLAIM OF THE APPEL LANT IN RESPECT OF THE SCHEME FILED WITH BIFR. HE HAS ONLY ALLEGED THAT TH E ORDER OF THE BIFR WAS NOT FILED BEFORE HIM. HOWEVER, AS STATED BEFORE ME BY T HE LD. A/R, THE ORDER OF BIFR WHICH IS PENDING TILL DATE MEANT THE COPY OF S AME COULD NOT BE FILED. (B) AS REGARD TO THE NON FILLING OF THE SECOND APP EAL AGAINST THE CONFIRMED ADDITION ON GOING THROUGH THE CASES RELIED ON BY TH E APPELLANT, I HAVE TO AGREE WITH THE RATIONALE PRONOUNCED IN THE JUDGEMENTS CIT ED BY THE LD.A/R AND AM OF THE CONSIDERED VIEW THAT THE MERE FACT THAT THE ASS ESSEE HAD NOT FILED ON APPEAL PRIMARILY TO BUY PEACE AGAINST THE ADDITION COULD N OT BY ITSELF LEAD TO THE CONCLUSION OR BE A GROUND TO PRESUME THAT THE ASSES SEE HAD CONCEALED THE PARTICULARS OF INCOME. (C) WITH RESPECT TO THE CONCLUSION OF THE AO THAT THE ASSESSEE HAD FURNISHED INACCURATE PARTICULARS OF INCOME, I FIND THAT BY FI LING THE TAX AUDIT REPORT AND OTHER DETAILS, THE APPELLANT FURNISHED ALL PARTICUL ARS NECESSARY. SINCE THE CONCEALMENT INVOLVED PENAL ACTION, IT HAS TO BE PRO VED AS A CONSCIOUS AND DELIBERATE ACT. THE SUBMISSION MADE BY THE APPELLAN T THAT THE PENALTY IN THE INSTANT CASE COULD NOT BE IMPOSED THERE BEING DIVER SE VIEWS IN RESPECT OF SUCH PAYMENT BEING MADE DURING THE VARIOUS FINANCIAL YEA RS AND ALLOWABLE ALSO APPEARS TO BE JUSTIFIED SINCE IN A CASE OF DIFFEREN CE OF OPINION BETWEEN TWO AUTHORITIES, PENALTY COULD NOT SUO MOTO BE IMPOSE D ON THE BASIS OF SUCH ADDITIONS. ALL THINGS CONSIDERED, THE FACTS IN PARTICULAR AND THE LAW AS IT EXISTS AND CITED ABOVE IN GENERAL SUGGEST THAT A PRESUMPTION OF CONC EALMENT CANNOT BE CONCLUSIVELY ESTABLISHED ON CIRCUMSTANTIAL EVIDENCE . BEING BY THEIR VERY NATURE PENAL, THE IMPOSITION OF PENALTY FOR CONCEALMENT CA NNOT BE UPHELD. THE ASSESSMENT OFFICER IS THEREFORE DIRECTED TO DELETE THE PENALTY OF RS.59,015,401/- 3.3. SUBSEQUENTLY HE PASSED A RECTIFICATION ORDER U /S 254 OF THE IT ACT DATED 31.3.2010 BY SUBSTITUTING AN AMOUNT OF RS.59015,401 /- WITH THAT OF RS.21,08,228/-. 3.4. AGGRIEVED BY THIS THE REVENUE IS IN APPEAL BEF ORE US. 3 4. AT THE TIME OF HEARING THE LD. DR APPEARING ON B EHALF OF THE REVENUE BY POINTING OUT THAT THE ADDITION WHICH HAS BEEN MADE BY THE AO U/S 143(3) HAS BEEN CONFIRMED BY THE LD. CIT(A) IN HIS ORDER DATED 23.0 3.2007 AND FURTHER THE SAID ORDER OF THE LD. CIT(A) HAS BEEN CONFIRMED BY THE ITAT. T HEREFORE, HE REQUESTED TO CONFIRM THE LEVYING OF PENALTY BY SETTING ASIDE THE ORDERS OF THE LD. CIT(A) AND RESTORE OF THE ORDER OF THE A.O. 5. THE LD. COUNSEL APPEARING ON BEHALF OF THE ASSES SEE BY RELYING ON THE JUDGEMENT OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS RELIANCE PETROPRODUCTS P. LTD. (2010) 322 ITR 158 (SC) SUBMI TTED THAT THE ISSUE INVOLVED IN THIS CASE IS HAVING TWO OPINIONS AND THE ASSESSEE H AS ADOPTED ONE OF THE PLAUSIBLE VIEW AND ACCORDINGLY CLAIMED EXEMPTION. THEREFORE, IN VIEW OF THE JUDGEMENT REFERRED SUPRA HE CONTENDED THAT THE ACTION OF THE LD. CIT(A) MAY BE UPHELD. 6. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREF UL PERUSAL OF MATERIAL AVAILABLE ON RECORD KEEPING IN VIEW OF THE FACT THAT THERE IS NO DISPUTE IN RESPECT OF THE ISSUE INVOLVED IN THIS APPEAL THAT IT IS HAVING DIVERGENT VIEWS AND THE ASSESSEE HAS CLAIMED EXEMPTION U/S 43B OF THE IT ACT UNDER BONA FIDE BEL IEF. THEREFORE, WE ARE OF THE VIEW THAT THE PROVISION OF SECTION 271(1)(C) OF THE IT A CT IS NOT APPLICABLE TO THE FACTS IN THE PRESENT CASE. HENCE, WE CONFIRM THE SAME AND DISMIS S THE APPEAL OF THE REVENUE. 7. IN THE RESULT THE APPEAL OF THE REVENUE IS DISMI SSED. ORDER PRONOUNCED IN THE COURT ON 21.04.2011. SD/- SD/- , , , , MAHAVIR SINGH, JUDICIAL MEMBER . .. . ! ! ! !. .. . , ,, , '# '# '# '# , C.D.RAO, ACCOUNTANT MEMBER. ( (( (!# !# !# !#) )) ) DATE: 21.04.2011. R.G.(.P.S.) 4 '1 / -2 3'2'4- COPY OF THE ORDER FORWARDED TO: 1. M/S. SREE GOURI SHANKAR JUTE MILLS LTD., 67, PARK S TREET, KOLKATA-700016. 2 THE D.C.I.T., CIRCLE-1, KOLKATA. 3. THE CIT, 4. THE CIT(A)-I, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA .2 -/ TRUE COPY, '1%9/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES