Ram Krishna Khandelwal, Bareilly V. Income Tax Officer, Bareilly

ITA 99/LKW/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1078 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 02-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C A K SINGH
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B , LUCKNOW BEFORE SHRI. T.S. KAPOOR, ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER ITA NO. 99/LKW/2017 ASSESSMENT YEAR: 2012 - 13 RAM KRISHNA KHANDELWAL PUKA KATRA, AONIA BAREI LLY V. INCOME TAX OFFICER WARD 2(3) BAREILLY T AN /PAN : ALJPK9178R (APP ELL ANT) (RESPONDENT) APPELLANT BY: NONE RESPONDENT BY: SHRI C.A.K SINGH, D.R. DATE OF HEARING: 20 0 3 201 8 DATE OF PRONOUNCEMENT: 21 0 3 201 8 O R D E R PER P ARTHA SARATHI CHAUDHU RY, J.M : THIS APPEAL PREFERRED BY THE ASSESSEE EMANATES FROM THE ORDER OF THE LD. CIT(A), BAREILLY DATED 28/11/2016 CONFIRMING THE PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT. 2 . THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL: - 1. THE PENALTY P ROCEEDINGS WERE INITIATED INVALIDLY AND THEREFORE ORDER OF PENALTY U/S 271(1)(C) IS VOID AB - INITIO. 2. THE SHOW CAUSE NOTICE ISSUED IS DEFECTIVE AS IT DOES NOT SPELL OUT THE GROUND ON WHICH THE PENALTY IS SOUGHT TO BE IMPOSED AND THEREFORE THE PENALTY OR DER IS INVALID. 3. THERE WAS NEITHER ANY CONCEALMENT OF INCOME NOR ANY INACCURATE PARTICULARS WERE FURNISHED BY THE APPELLANT AND THEREFORE NO PENALTY U/S 271 (1 )(C) WAS LIVABLE 4. IN ANY CASE, THE PENALTY IMPOSED IS EXCESSIVE. ITA NO.99/LKW/2017 PAGE 2 OF 4 5. ANY OTHER GROUND WHIC H THE APPELLANT MAY TAKE DURING THE COURSE OF HEARING OF THE APPEAL WITH PERMISSION OF THE HON'BLE TRIBUNAL. 3 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE ELECTRONICALLY FILED HIS INCOME ON 29/9/2012 DECLARING A TOTAL INCOME OF RS.5,59,932/ - AND RS.20, 000/ - AS AGRICULTURAL INCOME. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT UNDER SECTION 143(3) ON A TOTAL INCOME OF RS.12,18,630/ - PLUS RS.20,000/ - AS AGRICULTURAL INCOME IN THE STATUS OF INDIVIDUAL BY MAKING VARIOUS ADDITIONS AND ALSO INITIATED PROCEE DINGS UNDER SECTION 271(1)(C) OF THE ACT. 4 . AGGRIEVED WITH THE ORDER OF THE ASSESSING OFFICER, ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WHO HAS CONFIRMED THE ORDER OF THE ASSESSING OFFICER LEVYING PENALTY UNDER SECTION 271(1)(C) OF THE ACT. 5 . BEING F URTHER AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 6 . AT THE TIME OF HEARING , NONE WAS PRESENT ON BEHALF OF THE ASSESSEE. HOWEVER, THE ASSESSEE HAS FILED A PAPER BOOK WHICH INCLUDE COPY OF NOTICE ISSUED UNDER SECTION 271(1)(C) OF THE ACT AND COPIES OF JUDGMENTS OF THE HON'BLE APEX COURT IN THE CASE OF CIT & ANOTHER VS. M/S SSAS EMERALD MEADOWS IN CC NO.11485/2016 AND DECISION OF THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. M/S SSAS EMERALAD MEADOWS IN ITA NO.380 OF 2015 IN SUPPOR T OF THE GROUNDS RAISED BY THE ASSESSEE. SINCE THE ISSUE INVOLVED IN THIS APPEAL CAN BE DISPOSED OF IN THE ABSENCE OF THE A.R. OF THE ASSESSEE , WE HAVE DECIDED TO DISPOSE OF THE APPEAL AFTER HEARING THE LD. D.R. AND AFTER CONSIDERING THE MATERIALS PLACED ON RECORD. ITA NO.99/LKW/2017 PAGE 3 OF 4 7 . WE H AVE PERUSED THE CASE RECORD, HEAD THE CONTENTIONS OF THE LD. D.R., WHO PLACED RELIANCE UPON THE ORDER OF THE LD. CIT(A) AND WE FIND THAT NOTICE UNDER SECTION 271(1)(C) OF THE ACT IS NOT SPECIFIC AS IT DID NOT MENTION SPECIFICALLY AS TO WH ICH LIMB PENALTY UNDER SECTION 271(1)(C) OF THE ACT IS IMPOSED UPON THE ASSESSEE BY THE ASSESSING OFFICER. WE FIND THAT IN THE PENALTY NOTICE ISSUED BY THE DEPARTMENT IT IS WRITTEN THAT HAVE CONCEALED THE PARTICULARS OF YOUR INCOME OR FURNISHED INACCURAT E PARTICULARS OF SUCH INCOME. THEREFORE, THERE IS NO SPECIFIC LIMB UNDER WHICH PENALTY IS IMPOSED ON THE ASSESSEE. 8 . THE HON'BLE SUPREME COURT IN THE CASE OF CIT & ANOTHER VS. M/S SSAS EMERALD MEADOWS IN CC NO.11485/2016 UPHELD THE ORDER OF THE TRIBUNAL ALLOWING THE APPEAL OF THE ASSESSEE, WHICH WAS BASED UPON THE DECISION IN THE CASE OF CIT VS. MANJUNATHA COTTON AND GINNING FACTORY [2013] 359 ITR 565 WHEREIN IT IS HELD THAT IF THE NOTICE ISSUED BY THE ASSESSING OFFICER UNDER SECTION 274 READ WITH SECTIO N 271(1)(C) OF THE ACT DID NOT SPECIFY UNDER WHICH LIMB OF SECTION 271(1)(C) OF THE ACT PENALTY PROCEEDINGS IS INITIATED, THEN SUCH NOTICE SHOULD BE BAD IN LAW. 9 . THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. M/S SSAS EMERALAD MEADOWS IN ITA NO. 380 OF 2015 HAS DISMISSED THE APPEAL OF THE REVENUE BY CONFIRMING THE ORDER PASSED BY THE TRIBUNAL WHEREIN THE TRIBUNAL WHILE ALLOWING THE APPEAL FILED BY THE ASSESSEE OBSERVED THAT NOTICE ISSUED BY THE ASSESSING OFFICER UNDER SECTION 274 READ WITH SECTION 27191)(C) OF THE ACT TO BE BAD IN LAW AS IT DID NOT SPECIFY WHICH LIMB OF SECTION 271(1)(C) OF THE ACT, THE PENALTY PROCEEDINGS HAD BEEN INITIATED I.E. WHETHER FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. TH E TRIBUNAL WHILE ALLOWING THE APPEAL OF THE ASSESSEE HAS RELIED ON THE DECISION OF THE DIVISION BENCH OF THE HON'BLE KARNATAKA HIGH COURT ITA NO.99/LKW/2017 PAGE 4 OF 4 RENDERED IN THE CASE OF CIT VS. MANJUNATHA COTTON AND GINNING FACTORY [2013] 359 ITR 565. 10 . TAKING GUIDANCE FROM THE AFO RESAID JUDICIAL PRONOUNCEMENT, WE ARE OF THE CONSIDERED VIEW THAT NOTICE FOR IMPOSITION OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT ISSUED IN THE CASE OF THE ASSESSEE IS BAD IN LAW, INVALID AND, THEREFORE, LIABLE TO BE QUASHED. WE, THEREFORE, SET ASIDE THE ORDER OF THE LD. CIT(A) AND THE PENALTY IMPOSED BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(A) UNDER SECTION 271(1)(C) OF THE ACT IS DELETED. 11 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 21 / 0 3 / 201 8 . SD/ - SD/ - [ T.S. KAPOOR ] [PARTHA SARATHI CHAUDHURY ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 21 ST MARCH , 201 8 JJ: 2003 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR