MR. SHOURAV SEN,MAKHIJA ROYALE, SV ROAD, KHAR WEST, MUMBAI V. I.T.O., WARD 61(3), KOLKATA, BAMBOO VILLA, CALCUTTA

ITA 22/KOL/2025

AI Insights

The case involves Mr. Shourav Sen, who appealed against a penalty levied by the Income Tax Officer (ITO), Ward 61(3), Kolkata, for allegedly concealing income particulars. The penalty was imposed after Mr. Sen filed his Return of Income (ROI) in response to a notice under section 148 of the Income Tax Act, 1961, declaring a total income of Rs. 1,24,73,100. The Assessing Officer accepted this return but initiated penalty proceedings because the income was disclosed only after the notice was issued. The Commissioner of Income Tax (Appeals) upheld the penalty, leading to the current appeal before the Tribunal. The Tribunal, referencing a similar case (Smifs Capital Markets Ltd.), concluded that since all relevant facts were disclosed and no deficiency was pointed out by the ITO, the penalty was not justified.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 470880 (ITAT-KOLKATA)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-03-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2014-2015
• Other Referred Cases: Smifs Capital Markets Ltd. vs. Income Tax Officer
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: TDS
• Section: 148; 250; 271(1)(c)

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL “D” BENCH KOLKATA SHRI GEORGE MATHAN, JUDICIAL MEMBER SHRI SANJAY AWASTHI, ACCOUNTANT MEMBER I.T.A. No. 22/Kol/2025 (Assessment Year 2014-15) Mr. Shourav Sen, 302, Makhija Royale, SV Road, Khar West, Mumbai - 400052 [PAN: AIWPS3634G] ..............…...…………….... Appellant vs. I.T.O., Ward 61(3), Kolkata, Bamboo Villa, Calcutta - 700014 ..….............................. Respondent Appearances by: Assessee represented by : C. Roy, AR Department represented by : Sailen Samadder, Sr. DR Date of concluding the hearing : 10.03.2025 Date of pronouncing the order : 19.03.2025 O R D E R PER BENCH 1. This appeal arises from order passed u/s 250 of the Income Tax Act, 1961 [hereafter ‘the Act] by the Ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi [hereafter “the Ld. CIT(A)], vide order dated 07.11.2024. 1.1 In this case, the facts in brief are that the assessee filed his Return of Income (ROI) in response to notice u/s 148 of the Act, declaring a total income of Rs. 1,24,73,100/-. During the assessment proceedings, the Ld. AO accepted the return income as per ROI filed in response to notice u/s 148 of the Act. However, the Ld. AO initiated penalty proceedings on the ground that the entire quantum of income was disclosed only after a notice u/s 148 of the Act was issued. Thereafter, the Ld. AO proceeded to levy a penalty of Rs. 40,46,997/- u/s 271(1)(c) of the Act. 2 ITA No. 22/Kol/2025 Mr. Shourav Sen 1.1 Aggrieved with this penalty, the assessee approached the Ld. CIT(A) where also he could not succeed as it was held that since the return was filed only in response to notice u/s 148 of the Act, hence penalty was exigible in the case. 2. Before us, the assessee has challenged the impugned penalty through the following grounds: “1. On the facts and circumstances of the case and in law, the Learned Commissioner of Income Tax (Appeals), NFAC (hereinafter referred to as \"Ld. CIT(A)\") erred in confirming (refer to para 5 of page no. 3 of the Order us. 271(1)(c)) the findings of the Learned Assessing Officer (hereinafter referred to as \"Ld. AO\") that mens rea to evade tax has been demonstrated, without properly appreciating the submissions and evidence furnished by the Appellant. 2. On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in upholding the Ld. AO's conclusion that the Appellant had concealed the particulars of income and further erred in confirming the levy of penalty of Rs.40,46,997/- under section 271(1)(c) of the Income-tax Act, 1961 (\"the Act\"). 3. Without prejudice to the foregoing, on the facts and circumstances of the case and in law, the Ld. CIT(A) and the Ld. AO failed to appreciate that in response to the notice under section 148 of the Act, the Appellant had filed a return of income declaring true and accurate particulars of income, and no concealment of income was established in fact or in law. 4. Without prejudice to the foregoing, on the facts and circumstances of the case and in law, the Ld. CIT(A) erred in failing to appreciate that the Ld. AO, while computing the quantum of penalty, did not exclude the tax payable on income for which tax had been deducted at source (TDS) and for withheld foreign tax credit were granted for which information was already available with the tax department, thereby erroneously concluding that the Appellant had concealed particulars of income. 5. The penalty order, as upheld by the Ld. CIT(A), is bad in law and contrary to the facts and circumstances of the case. 6. The Appellant craves leave to add, alter, amend, or withdraw any or all of the above grounds of appeal at or before the hearing of the appeal.” 3. Before us, the Ld. AR argued that the assessee was regularly filing ROIs but due to an oversight, it was only for the present year that ROI was not filed. However, at the first available opportunity the return of income was filed in response to notice u/s 148 of the Act. The Ld. AR contended that the Ld. AO has accepted the income as per the return of income and has not made any enhancement whatsoever. The Ld. AR pleaded that there was no intention to conceal any particulars of income and in any case, the department had access to the details of income on which TDS was made. 3 ITA No. 22/Kol/2025 Mr. Shourav Sen 3.1 The Ld. DR, on the other hand relied on the orders of authorities below. 3.2 In this case, admittedly, the AO has not disturbed the return of income in any way. It is also a fact that the assessee filed the return of income in response to notice u/s 148 of the Act. It is clear that there is strength in the averment of the Ld. AR that the assessee is a regular filer of returns but missed to file the said return for this year. In this case, we draw strength from the case of Smifs Capital Markets Ltd. reported in 149 taxmann.com 376 (Calcutta), where on rather similar facts the Hon’ble jurisdictional High Court has held that since all relevant facts and material for computation of income were duly furnished by the assessee and no deficiency in the facts supplied have been pointed out by the Ld.AO, then the deeming provision u/s 271(1)(c) of the Act would not be attracted. The penalty was to be, accordingly deleted. Respectfully following this case law, we direct that the impugned penalty be deleted. 4. In the result, appeal filed by the assessee is allowed. Order pronounced in the court on 19.03.2025 Sd/- Sd/- (George Mathan) (Sanjay Awasthi) Judicial Member Accountant Member Dated: 19.03.2025 AK, P.S. Copy of the order forwarded to: 1. Mr. Shourav Sen 2. I.T.O., Ward 61(3), Kolkata 3. CIT(A)- 4. CIT- 5. CIT(DR) //True copy// By order Assistant Registrar, Kolkata Benches "