DCIT, Circle - 11, Kolkata, Kolkata V. Viswanath Gupta, Kolkata

ITSSA 5/KOL/2011

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 0001 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 10 month(s) 29 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 08-01-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 09-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MANISH TIWARI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI, P.K. BANSAL, ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER IT (SS) A NO. 5 / KOL / 2011 BLOCK PERIOD FROM: 01/04/87 TO 27/11/1997 DCIT, CIRCLE-11, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069 V/S . VISHWANATH GUPTA 83, OLD CHINA BAZAR STREET, KOLKATA 700 001 [ PAN NO.AHGPG 1394 Q ] /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI A.K. SINGH, CIT-DR /BY RESPONDENT SHRI MANISH TIWARI, AR /DATE OF HEARING 07-01-2014 /DATE OF PRONOUNCEMENT 08-01-2014 / // / O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER:- THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-XII, KOLKATA I N APPEAL NO. 575/CIT(A)- XII/CIR-11/09-10 DATED 08-11-2010 FOR THE BLOCK PER IOD FROM 01-04-1987 TO 27- 11-1997. IN THE REVENUES APPEAL, REVENUE HAS RAISE D FOLLOWING GROUND:- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) HAD ERRED ON FACTS AND LAW BY CANCELLING THE GROUND THA T ACCEPTANCE OF ADDITION AND WILLINGNESS TO BUY PEACE WAS SUFFICIEN T GROUND TO CANCEL THE PENALTY ORDER. IT(SS)A NO.5/KOL/2011 B.P. 1/4/87 TO 27/1 1/97 DCIT CIR-11, KOL V. VISHWANATH GUPTA PAGE 2 SHRI A.K. SINGH, LD. CIT-DR REPRESENTED ON BEHALF O F REVENUE AND SHRI MANISH TIWARI REPRESENTED ON BEHALF OF ASSESSEE. 2. IT WAS SUBMITTED BY LD. CIT-DR THAT PENALTY WAS NOT LIABLE TO BE CANCELLED ON THE GROUND THAT THE ASSESSEE HAD ACCEP TED THE ADDITIONS FOR THE PURPOSE OF BUYING PEACE WITH THE DEPARTMENT. IT WAS THE SUBMISSION THAT ORDER OF THE LD. CIT(A) WAS LIABLE TO BE REVERSED. 3. IN REPLY, LD. AR SUBMITTED THAT LD. CIT(A) HAD N OT DELETED THE PENALTY ONLY ON THE GROUND THAT THE ADDITIONS HAVE BEEN ACC EPTED TO BUY PEACE. LD. AR DREW OUR ATTENTION TO PAGE-13 OF THE ORDER OF TH E LD. CIT(A), WHEREIN THE LD. CIT(A) HAS CATEGORICALLY HELD IN THE 9 TH LINE FROM THE TOP OF THE PAGE THAT EXPLANATION OF THE ASSESSEE WAS SATISFACTORY. THE R EVENUE HAD NOT MADE OUT A CASE FOR SUSTAINING THE PENALTY. FURTHER IN PARA-6 OF THE ORDER OF LD. CIT(A) HAS CATEGORICALLY ADMITTED THAT THE EXPL ANATION OFFERED BY THE APPELLANT WAS NOT PROVED TO BE FALSE OR NOT BONA FIDE . FURTHER, HE HAS HELD THAT THERE WAS NO FINDING OF THE ASSESSING OFFICER IN THE ORDER THAT THE VIEW EXPRESSED BY THE APPELLANT TO EXPLAIN THE ENTRIES C ANNOT BE ONE OF THE PLAUSIBLE VIEWS. IT WAS THE SUBMISSION THAT THE PEN ALTY HAVING BEEN DELETED ON MERITS, EVEN ASSUMING THAT THE TECHNICAL GROUND RAI SED BY THE REVENUE IS ALLOWED, STILL THE ORDER OF THE LD. CIT(A) CANCELLI NG THE PENALTY ON MERITS WOULD REMAIN. 4. WE HAVE HEARD THE RIVAL SUBMISSION. ADMITTEDLY, ON PERUSAL OF THE ORDER OF LD. CIT(A) IT CLEARLY SHOWS THAT LD. CIT(A) HAS CANCELLED THE PENALTY LEVIED BY THE AO ON MULTIPLE GROUNDS. THE REVENUE HAS ONLY RAISED IN ITS APPEAL GROUND IN RESPECT OF TECHNICAL GROUND OF CANCELLATI ON OF THE PENALTY ON ACCOUNT OF THE BUYING OF PEACE WITH THE DEPARTMENT. ADMITTE DLY, PENALTY CANNOT BE CANCELLED JUST BECAUSE AN ADDITION HAS BEEN ACCEPTE D BY THE ASSESSEE TO BUY PEACE WITH THE DEPARTMENT. HOWEVER, AS IT IS NOTICE D THAT LD. CIT(A) HAS CANCELLED THE PENALTY ON MERITS ALSO, BY ALLOWING T HE REVENUES APPEAL NO IT(SS)A NO.5/KOL/2011 B.P. 1/4/87 TO 27/1 1/97 DCIT CIR-11, KOL V. VISHWANATH GUPTA PAGE 3 PURPOSE WOULD BE SERVED AND IT WOULD BE ONLY ACADEM IC IN NATURE IN SO FAR AS THE REVENUE HAS NOT CHALLENGED THE CANCELLATION OF THE PENALTY BY THE LD. CIT(A) ON THE FACTS OF THE CASE. IN THE CIRCUMSTANC ES, WE ARE OF THE VIEW THAT THE CANCELLATION OF PENALTY HAS DONE BY THE LD. CIT (A) IS ON A RIGHT FOOTING AND DOES NOT CALL FOR ANY INTERFERENCE. IN THE CIRCUMST ANCES, THE APPEAL OF REVENUE STANDS DISMISSED. 3. IN THE RESULT, REVENUES STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 08 /01/2014 SD/- SD/- (P.K.BANSAL) (GEORGE MATHAN) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP !- 08/01/2014 , , , , -, -, -, -, / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. 2 / CONCERNED CIT 4. 2- / CIT (A) 5. , , , / DR, ITAT, KOLKATA 6. 9 / GUARD FILE. BY ORDER/ , /TRUE COPY/ / ,