Sri Satya Narayan Prasad, Patna V. DCIT, Patna

ITSSA 84/PAT/2013

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 3296 (ITAT-PATNA)
• Duration Of Justice: 3 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 07-04-2017
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 22-08-2013
• Court: TRIBUNAL
• Department Lawyers: A K RASTOGI; RAKESH KUMAR ADVOCA
• Assessee Lawyers: T VARKEY JUDIC IA L M EMBER
• Keywords: Block assessment

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, PATNA BENCH:P ATNA BEFORE SHRI ABY T. VARKEY, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER IT(SS)A NO. 84/PAT/2013 BLOCK ASSESSMENT YEAR:1991-92 TO 2001-02 SATYA NARAYAN PRASAD, C/O M/S. KIRAN PRAKASHAN, MUSALLAHPUR HAT, PATNA-4. PAN: AGNPP3499B / V/S . DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-2, PATNA. /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI A. K. RASTOGI & SHRI RAKESH KUMAR, ADVOCATES /BY RESPONDENT SMT. ARCHANA SINHA, SR. S.C /DATE OF HEARING 05-04-2017 /DATE OF PRONOUNCEMENT 07-04-2017 /O R D E R PER BENCH: THIS APPEAL FILED BY THE ASSESSEE IS ARISING OUT OF PENALTY LEVIED U/S. 158BFA(2) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO A S THE ACT) BY THE DCIT, CENTRAL CIRCLE- 2, PATNA WHICH WAS CONFIRMED BY THE LD. COMMISSIONE R OF INCOME-TAX(APPEAL)-1, PATNA DATED 01-02-2013 FOR BLOCK AY 1991-92 TO 2001-02. 2. AT THE OUT SET, THE LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE PENALTY ORDER PASSED BY THE AO U/S. 158BFA(2) OF THE ACT WH EREIN THE AO HAS STATED TO HAVE ISSUED THE ASSESSEE NOTICES ON 14.05.2010 FOR COMPL IANCE ON 28.05.2010 AND HAS RECORDED THAT ANOTHER NOTICE WAS ALSO SERVED ON THE ASSESSEE ON 08.07.2010 FOR COMPLIANCE ON 16.07.2010. ACCORDING TO THE LD. COUNSEL, BOTH THE SAID NOTICES WERE IN FACT ISSUED IN 2 IT(SS)A NO. 84/PAT/2013 SATYA NARAYAN PRASAD., AY 1991-92 TO 2001-02 RESPECT OF PENALTY TO BE LEVIED U/S. 271(1)(C) OF T HE ACT AND NOT U/S. 158BFA(2) OF THE ACT AND DREW OUR ATTENTION TO PAGE NOS. 11 AND 12 OF TH E PAPER BOOK. ACCORDING TO LD. COUNSEL, SINCE BOTH THE NOTICES WERE FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME , THE PENALTY U/S. 158BFA(2) OF THE ACT CANNOT BE L EVIED ON THE ASSESSEE AND RELIED ON THE ORDER OF THE HON BLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. SSAS EMERALD MEDADOW IN ITA NO. 380 OF 201 5 DATED 23.11.2015. THE LD. DR COULD NOT CONTROVERT THIS FACT THAT THE NOTICES ISS UED ON 14.05.2010 AND 08.07.2010 WERE NOT AGAINST DEFAULT U/S. 158BFA(2) OF THE ACT. HOWEVER , ACCORDING TO HER, IT MUST BE INADVERTENT MISTAKE THAT AO ISSUED NOTICE FOR PENAL TY U/S. 271(1)(C) OF THE ACT AND SHOULD NOT COME IN THE WAY FOR LEVYING PENALTY AGAINST THE ASSESSEE. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE TAKE NOTE FROM THE PENALTY ORDER PASS ED U/S. 158BFA(2) OF THE ACT THAT HE HAS ISSUED TWO NOTICES DATED 14.05.2010 AND 08.07.2010 WHICH HAVE BEEN ANNEXED AT PAGE NOS. 11 AND 12 OF THE PAPER BOOK WHEREFROM IT TRANSPIRES THAT THE AO HAS GIVEN NOTICES TO THE ASSESSEE FOR DEFAULT U/S. 271(1)(C) OF THE ACT I.E. CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. WE NOTE THAT THE NOTICES ISSUED BEFORE IMPOSING PENALTY IS BAD IN LAW BECAUSE NO SPECIFIC CHARGE HAS BEEN LEVIED IN RESPECT OF VIOLATION OF PROVISIONS OF SECTION 158BFA(2) OF TH E ACT. WHEREAS AS STATED EARLIER THE NOTICES HAVE BEEN SERVED ON THE ASSESSEE FOR DEFAUL TS SPECIFIED FOR LEVYING PENALTY U/S. 271(1)(C) OF THE ACT. WE OBSERVE FOR ACADEMIC PURP OSE THAT IN THE SAID NOTICE U/S. 271(1)(C) OF THE ACT ALSO NO SPECIFIC DEFAULT AS TO EITHER IT IS FOR CONCEALMENT OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME HAS BEE N SPECIFIED WHICH VITIATES THE PENALTY PROCEEDING EVEN IF IT HAS BEEN INITIATED FOR PENALT Y U/S. 271(1)(C) OF THE ACT. HOWEVER, IN THIS CASE, THE AO HAS SOUGHT TO LEVY THE PENALTY FO R INFRACTION OF SEC. 158BFA(2) OF THE ACT, BUT THE NOTICE SERVED FOR LEVY AGAINST PENALTY WAS FOR PENALTY U/S. 271(1)(C) OF THE ACT, WHICH VITIATES THE ENTIRE IMPUGNED PENALTY PROCEEDI NGS AB-INITIO AND, THEREFORE, WE ARE INCLINED TO CANCEL THE PENALTY LEVIED AND FOR THAT WE RELY ON THE DECISION OF HONBLE KARNATAKA HIGH COURT IN M/S. SSAS EMERALD MEDADOW (SUPRA) AND THE DECISION OF 3 IT(SS)A NO. 84/PAT/2013 SATYA NARAYAN PRASAD., AY 1991-92 TO 2001-02 HONBLE GUJARAT HIGH COURT IN THE CASE OF M/S SARAT HI ENGINEERING COMPANY VS. CIT 282 ITR 642 (GUJ). 4. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER IS PRONOUNCED IN OPEN COURT ON 07.04.2017 SD/- SD/- (WASEEM AHMED) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 7 TH APRIL, 2017 JD. SR. PS / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. ' / CONCERNED CIT 4. ' - / CIT (A) 5. # && , / DR, ITAT, PATNA 6. ( / GUARD FILE. BY ORD ER/ , ASSISTANT REGI STRAR, ITAT, PATNA,