ACIT,Circle - 29, KOLKATA, Kolkata V. Shree Gopal Choudhary, Kolkata

MA 38/KOL/2019

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 4603 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-05-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 22-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect
• Section: 271(1)(c)

Judgement Text

1 MA NO.38/KOL/2019 SHREE GOPAL CHOUDHARY, AY- 2007-08 , D , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: KOL KATA ( ) . . , . ' # $% % , '( ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] M.A. NO.38/KOL/2019 IN M.A. NO. 39/KOL/2018 IN I.T.A. NO. 1072/KOL/2015 ASSESSMENT YEAR: 2007-08 ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-29, KOLKATA. VS. SHREE GOPAL CHOUDHARY (PAN: ACRPC8786G) APPLICANT RESPONDENT DATE OF HEARING 03.05.2019 DATE OF PRONOUNCEMENT 03.05.2019 FOR THE APPLICANT SHRI C. J. SINGH, JCIT, SR. DR FOR THE RESPONDENT SHRI D. S. DAMLE, FCA ORDER PER SHRI A.T.VARKEY, JM THIS IS A MISC. APPLICATION PREFERRED BY THE REVENU E AGAINST THE ORDER PASSED BY THE TRIBUNAL DATED 03.08.2018 PASSED IN MA NO. 39/KOL/2 018 IN ITA NO. 1072/KOL/2015. 2. WE NOTE THAT THE MA NO. 39/KOL/2018 FOR AY 20 07-08 HAS BEEN DISPOSED OF VIDE ORDER DATED 03.08.2018 AND SO WE MAKE IT CLEAR THAT MA HAS BEEN DISPOSED OF ON 03.08.2018 SO, MA ON MA IS NOT PERMISSIBLE IN LAW. HOWEVER, THE ONLY GRIEVANCE OF THE REVENUE IS THAT IN THE IMPUGNED M.A. ORDER THE AMOU NT OF PENALTY HAS BEEN STATED TO BE RS.11,06,395/- VIDE ORDER DATED 03.08.2018 WHEREAS ACCORDING TO LD. DR, IT IS RS.33,19,195/- BEING 300% OF THE TAX AND NOT 100% O F THE TAX. SO, WE CLARIFY THAT THE AO HAD IMPOSED A PENALTY OF RS.33,19,195/- AND NOT RS. 11,06,395/- AND WHILE DISPOSING OF THE MISC. APPLICATION BY ORDER DATED 03.08.2018, WE STA TED THAT SINCE THE AMOUNT OF PENALTY IS 2 MA NO.38/KOL/2019 SHREE GOPAL CHOUDHARY, AY- 2007-08 ONLY RS.11,06,395/- WHICH IS BELOW THE TAX EFFECT O F RS. 20 LAKHS PRESCRIBED BY THE CBDT CIRCULAR NO.3/2018 DATED 11.07.2018, SO WE DISMISS ED THE APPEAL OF THE REVENUE. NOW, SINCE THE PENALTY IS RS.33,19,195/- UNDISPUTEDLY, I T BREACHES THE PRESCRIBED LIMIT OF CBDT. HOWEVER, IT HAS BEEN BROUGHT TO OUR NOTICE BY THE L D. AR SHRI DAMLE THAT THE QUANTUM ASSESSMENT ON WHICH PENALTY WAS LEVIED WAS DELETED BY THE TRIBUNAL C BENCH IN ITA NO. 133/KOL/2014 FOR AY 2007-08 BY ORDER DATED 13.09.2 017, THEREFORE, ONCE THE QUANTUM ASSESSMENT DOES NOT SURVIVE, PENALTY IMPOSED OVER I T HAS TO FALL ON THE PRINCIPLE THAT WHEN THE FOUNDATION GOES SUPER STRUCTURE ALSO FALLS. T HEREFORE, WE NOTE THAT ON MERITS THE PENALTY COULD NOT SURVIVE U/S. 271(1)(C) OF THE ACT , THEREFORE, THE PENALTY IMPOSED BY THE AO CANNOT SURVIVE. IN ORDER TO DO COMPLETENESS OF JUSTICE THIS PARTICULAR ORDER IS ISSUED AND IT CANNOT BE TAKEN AS A PRECEDENT SINCE THE SET TLED POSITION IS THAT THERE IS NO M.A OVER M.A. IT IS ONLY TO CLARIFY THE FACTS WE ARE PASSIN G THIS ORDER. 3. IN THE RESULT, MISC. APPLICATION OF REVENUE IS DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT. SD/- SD/- (DR. A. L. SAINI) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 3 RD MAY, 2019 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT ACIT, CIRCLE-29, KOLKATA 2 RESPONDENT SHREE GOPAL CHOUDHARY, 16F, JUDGES C OURT ROAD, KOLKATA- 700 027. 3. 4. CIT(A)-8, KOLKATA. (SENT THROUGH E-MAIL) CIT 10, KOLKATA. 5. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR