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

MA 39/KOL/2018

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 5790 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-08-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 12-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

1 MA NO.39/KOL/2018 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.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 03.08.2018 DATE OF PRONOUNCEMENT 03.08.2018 FOR THE APPLICANT SHRI ARINDAM BHATTACHARJEE, ADDL. CIT, SR. DR FOR THE RESPONDENT SHRI D. S. DAMLE, AR ORDER PER SHRI A.T.VARKEY, JM VIDE THIS MISC. APPLICATION THE REVENUE WANTS US TO RECALL OUR ORDER PASSED ON 14.10.2017 FOR AY 2007-08 IN ITA NO. 1072/KOL/2015. 2. BY THIS IMPUGNED ORDER THE TRIBUNAL DISMISSED THE APPEAL OF THE REVENUE AGAINST THE ACTION OF THE LD. CIT(A) WHO DELETED THE PENALTY IM POSED BY AO U/S. 271(1)(C) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS TH E ACT) ON THE GROUND THAT THE NOTICE ISSUED BEFORE IMPOSING OF PENALTY U/S. 271(1)(C) OF THE ACT WAS INVALID FOR NOT STRIKING OUT EITHER OF THE FAULTS SPECIFIED IN SEC. 271(1)(C) I. E. CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS . HOWEVER, BY PREFERRING THIS MISC. APPLICATION T HE REVENUE CONTENDS THAT ONE OF THE LIMBS I.E. CONCEALMENT OF INCOME WAS TICK MARKED MEANING THEREBY THAT THE AOS NOTICE CANNOT BE HELD TO BE I NVALID BECAUSE THE FAULT FOR WHICH THE 2 MA NO.39/KOL/2018 SHREE GOPAL CHOUDHARY, AY- 2007-08 AO PROPOSED TO GIVE NOTICE TO ASSESSEE WAS FOR THE SPECIFIC OFFENCE OF CONCEALMENT OF INCOME. THEREFORE, ACCORDING TO THE REVENUE, THER E IS AN APPARENT MISTAKE ON RECORD AND THEY WANTED US TO RECALL THIS IMPUGNED ORDER PASSED BY US. HOWEVER, WE NOTE FROM A PERUSAL OF THE NOTICE IN QUESTION THAT THOUGH IN TH E NOTICE THE AO HAS TICKED CONCEALMENT OF INCOME BUT HAS NOT STRICKEN OFF THE OTHER FAULT SPECIFIED IN SEC. 271(1)(C) OF THE ACT I.E. FURNISHING OF INACCURATE PARTICULARS OF INCOME WHICH WILL MAKE THE NOTICE INVALID BECAUSE THE ASSESSEE HAS TO BE PUT ON NOTICE FOR WH ICH SPECIFIC FAULT HE IS BEING PROCEEDED AGAINST FOR LEVY OF PENALTY. THUS BY NOT STRIKING DOWN FURNISHING OF INACCURATE PARTICULARS OF INCOME AND BY MERELY MARKING A TICK ON THE CON CEALMENT OF INCOME WILL NOT BE SUFFICIENT COMPLIANCE OF PROPER NOTICE, AS REQUIRED BY LAW. SO, THE MISC. APPLICATION IS DEVOID OF MERITS. MOREOVER, THE LD. AR BROUGHT TO OUR NOTICE THAT THE PENALTY IMPOSED BY THE AO IS ONLY TO THE TUNE OF RS.11,06,395/- WHICH IS BELOW RS. 20 LACS LIMIT PRESCRIBED BY THE CBDT FOR APPEALS TO BE PREFERRED BEFORE THIS TR IBUNAL. THE FACT THAT PENALTY IMPOSED BY THE AO IS ONLY RS.11,06,395/- COULD NOT BE CONTR OVERTED BY THE LD. DR. IN SUCH A SCENARIO, WE FIND FORCE IN THE CONTENTION OF THE LD . AR THAT CBDT CIRCULAR LIMIT OF RS. 20 LAKH FOR PREFERRING AN APPEAL BEFORE THE TRIBUNAL H AS NOT BEEN SATISFIED, THEREFORE, ON THIS SCORE ALSO GOES, BECAUSE EVEN IF THE APPEAL OF THE REVENUE FOR ARGUMENT SAKE RESTORED, THEN ALSO THE APPEAL WILL NOT SURVIVE. THEREFORE, LOOKI NG FROM ANY ANGLE, THE MISC. APPLICATION OF THE REVENUE NEEDS TO BE DISMISSED. 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 AUGUST, 2018 JD.(SR.P.S.) 3 MA NO.39/KOL/2018 SHREE GOPAL CHOUDHARY, AY- 2007-08 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, SR. PVT. SECRETARY