Ghosh & Co., Kolkata V. DCIT, Circle - 22, Kolkata , Kolkata

MA 139/KOL/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 4943 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 21-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROBIN CHOUDHURY CIT DR REVEN
• Keywords: Principle of natural justice
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D, KOLKATA [BEFORE SHRI J. SUDHAKAR REDDY, HONBLE AM & SHRI S.S. VISWANETHRA, HONBLE JM] M.A. NO. 139/KOL/2019 (A/O. ITA NO. 1418/KOL/2018) ASSESSMENT YEAR: 2013-14 GHOSH & CO........................................................................................................................APPELLANT 71, B.R.B. BASU ROAD ROOM NO. C112 & C113 KOLKATA 700 001 [PAN: AAFFG 8015 Q] VS. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-22, KOLKATA......................RESPONDENT APPEARANCES BY: SHRI VIGYANESHWAR NATH DATTA, ADVOCATE, APPEARING ON BEHALF OF THE ASSESSEE. SHRI ROBIN CHOUDHURY, ADDL. CIT (D/R) APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : JULY 26 TH , 2019 DATE OF PRONOUNCING THE ORDER : AUGUST 14 TH , 2019 ORDER PER J. SUDHAKAR REDDY, AM :- BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE SUBMITS THAT THE TRIBUNAL WAS AT ERROR IN SETTING ASIDE THE APPEAL OF THE ASSESSEE TO THE FILE OF THE LD. CIT(A) ON THE GROUNDS OF NATURAL JUSTICES, WHEN THE FACTS ARE THAT THE ASSESSEE PLEADED THAT THE LEVY OF PENALTY WAS BEYOND THE JURISDICTION OF THE ASSESSING OFFICER AS THE NOTICE FOR LEVY OF PENALTY U/S 271(1)(C) OF THE ACT, WAS DEFECTIVE. HE SUBMITTED THAT A COPY OF THE NOTICE HAD ALSO BEEN FILED BEFORE THE TRIBUNAL. THE LD. D/R THOUGH NOT LEAVING HIS GROUND SUBMITTED THAT THE MATTER MAY BE RECALLED AND HEARD AFRESH AS THE SUBMISSIONS OF THE ASSESSEE WERE NOT CONSIDERED BY THE TRIBUNAL. 2. AFTER HEARING RIVAL CONTENTIONS WE FIND THAT MISTAKE APPARENT ON RECORD HAS CREPT INTO THE ORDER OF THE TRIBUNAL. WHEN THE ASSESSEE HAS ARGUED THAT THE NOTICE OF PENALTY WAS DEFECTIVE, THIS BENCH HAD RESTORED THE MATTER TO THE FILE OF THE LD. CIT(A), FOR FRESH ADJUDICATION, WHEN IN FACT THIS ISSUE WAS CONSIDERED BY THE LD. CIT(A) AND THE PLEA OF THE ASSESSEE WAS NOT ACCEPTED. 2.1. WE FIND FROM THE FILE THAT THE NOTICE ISSUED FOR LEVY OF PENALTY IS DEFECTIVE, AS IT DOES NOT SATISFY THE REASON FOR WHICH THE PENALTY IS PROPOSED TO BE LEVIED U/S 271(1)(C) OF THE ACT, I.E., WHETHER IT IS FOR CONCEALMENT OF PARTICULARS OR FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. SSAS EMARALD MEADOWS [2016] 73 TAXMANN.COM 248 HAS UPHELD THE 2 M.A. NO. 139/KOL/2019 (A/O. ITA NO. 1418/KOL/2018) ASSESSMENT YEAR: 2013-14 GHOSH & CO JUDGMENT OF THE HONBLE KARNATAKA HIGH COURT ON THIS ISSUE IN THE CASE OF CIT V. MANJUNATHA COTTON & GINNING FACTORY [2013] 359 ITR 565. NON APPLICATION OF JUDGMENT OF THE HONBLE SUPREME COURT IS A MISTAKE APPARENT ON RECORD. THUS, WE RECTIFY OUR ORDER BY APPLYING THIS DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. SSAS EMARALD MEADOWS (SUPRA) AND HOLDING THAT NOTICE ISSUE FOR LEVY OF PENALTY U/S 271(1)(C) OF THE ACT, IS DEFECTIVE. THUS, THIS PENALTY LEVIED IS QUASHED. 3. IN THE RESULT, THIS MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. KOLKATA, THE 14 TH DAY OF AUGUST, 2019. SD/- SD/- [S.S. VISWANETHRA RAVI] [J. SUDHAKAR REDDY] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 14.08.2019 {SC SPS} COPY OF THE ORDER FORWARDED TO: 1. GHOSH & CO 71, B.R.B. BASU ROAD ROOM NO. C112 & C113 KOLKATA 700 001 2. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-22, KOLKATA 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES