Rajkishore Patra, Puri v. ACIT, Bhubaneswar

IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK ( ) BEFORE . . HONBLE SHRI K.K.GUPTA ACCOUNTANT MEMBER. /AND . . . S HRI K.S.S.PRASAD RAO JUDICIAL MEMBER / I.T.A.NO. 206/CTK/2010 / ASSESSMENT YEAR 2006 - 07 SHRI RAJKISHORE PATRA MATA MANDAPA SAHI PURI. PAN: ABDPP 0707 D - - - VERSUS - ACIT CIRCLE 2(1) BHUBANESWAR. ( /APPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI B.PANDA AR / FOR THE RESPONDENT: / SHRI A.K.MAHAPATRA DR / ORDER . . . SHRI K.S.S.PRASAD RAO JUDICIAL MEMBER . TH IS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DT.17.3.2010 OF THE COMMISSIONER OF INCOME - TAX (APPEALS) PERTAINING TO LEVY OF PENALTY U/S.271(1)(C) FOR THE ASSESSMENT YEAR 2006 - 07. 2. THE BRIEF FACTS OF THE CASE ARE THAT DURING THE COURSE OF ASSES SMENT THE ASSESSING OFFICER NOTICED FROM THE WEALTH TAX RETURN FOR THE ASSESSMENT YEAR 2005 - 06 THAT THE ASSESSEE HAD SHOWN CLOSING CASH BALANCE AS ON 31.3.2005 AT 3 95 450 WHEREAS THE ASSESSEE DISCLOSED THE OPE NING CASH BALANCE AS ON 1.4.2005 AT 8 34 633 IN THE STATEMENT FILED FOR THE PURPOSE OF INCOME - TAX FOR THE AY 2006 - 07. THEREFORE THE ASSESSING OFFICER ADDED THE DIFFERENTIAL AMOUNT OF 4 39 183 TO THE TO TAL INCOME OF THE ASSESSEE ASSESSMENT YEAR UNDER CONSIDERATION. HE INITIATED PROCEEDINGS U/S.271(1)(C) IN RESPECT OF THE SAID ADDITION AND LEVIED PENALTY OF 2 01 585 WHICH IS 1.5 TIMES OF THE TAX SOUGHT TO BE EVADED. IN APPEAL THE LEARNED CIT(A) UPHE LD THE LEVY OF PENALTY BUT REDUCED THE QUANTUM OF PENALTY AT THE MINIMUM TO I.T.A.NO. 206/CTK/2010 2 1 34 390. STILL AGGRIEVED BY THE ORDER OF THE LEARNED CIT(A) THE ASSESSEE IS IN APPEAL HERE BEFORE THE TRIBUNAL. 3. SHRI B.PANDA THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE EXCESS AMOUNT IN QUESTION HAD BEEN DISCLOSED BY THE ASSESSEE IN THE WEALTH TAX RETURN FOR THE IMMEDIATE PRECEDING ASSESSMENT YEAR I.E. 2005 - 06 WHICH THE ASSESSEE AGREED TO BE TAXED IN THE IMPUGNED ASSESSMENT YEAR UNDER THE INCOME - TAX ACT. THEREFO RE THERE IS NO CONCEALMENT OF INCOME OR SUBMISSION OF INACCURATE PARTICULARS OF INCOME THE ASSESSEE HAVING NOT MAINTAINED REGULAR BOOKS OF ACCOUNTS AND THE STATEMENT OF CASH RECEIPTS AND PAYMENTS MADE OUT FOR THE PURPOSE OF RETURN OF INCOME OUT OF HIS O WN ESTIMATION RECOLLECTING AND REMEMBERING THE TRANSACTIONS MADE IN THE RELEVANT YEARS AND AS SUCH IT DOES NOT ATTRACT LEVY OF PENALTY U/S.271(1)(C) OF THE ACT. SHRI A.K.MAHAPATRA LEARNED DR ON THE OTHER HAND SUPPORTED THE IMPUGNED ORDER OF THE LEARNED CIT(A) AND CONTENDED THAT THERE BEING LESS DISCLOSURE IN THE OPENING CASH BALANCE AS ON 1.4.2006 AS COMPARED TO THE CLOSING BALANCE AS ON 31.3.2006 SHOWN IN THE WEALTH TAX RETURN IT IS CERTAINLY A CASE OF SUBMISSION OF INACCURATE PARTICULARS OF INCOME AN D AS SUCH LEVY OF PENALTY U/S.271(1)(C) IS JUSTIFIED. 4. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW IN THE LIGHT OF THE SUBMISSIONS MADE BY BOTH THE PARTIES BEFORE US. THERE IS NO DISPUTE TO THE FACT THAT THERE IS LESS DISCLOSURE IN THE OPENING CASH BALANCE AS ON 1.4.2006 IN THE STATEMENT FURNISHED FOR THE PURPOSE OF INCOME TAX RETURN COMPARED TO THE CLOSING BALANCE AS ON 31.3.2006 DISCLOSED BY THE ASSESSEE FOR THE PURPOSE OF WEALTH TAX RETURN. TH IS DIFFERENCE AROSE AS EXPLAINED BY THE ASSESSEE RIGHT FROM THE BEGINNING THAT THE ASSESSEE HAVING NOT MAINTAINED REGULAR BOOKS OF ACCOUNTS AND THE STATEMENT OF CASH RECEIPTS AND PAYMENTS MADE OUT OF HIS I.T.A.NO. 206/CTK/2010 3 OWN ESTIMATION RECOLLECTING AND REMEMBERING. THERE IS NOTHING ON RECORD TO CONTROVERT SUCH SUBMISSION OF THE ASSESSEE. FURTHERMORE WE FIND THAT THE ASSESSEE HAS ACCEPTED THE DIFFERENTIAL AMOUNT AS INCOME IN THE IMPUGNED ASSESSMENT YEAR I.E. ASSESSMENT YEAR 2006 - 07. THIS CLEARLY INDICATES THE BONAFIDE OF THE ASSESSEE AND ALSO THAT THERE WAS NO SUBMISSION OF INACCURATE PARTICULARS OF INCOME OR CONCEALMENT OF INCOME TO THE EXTENT THAT HE HAS FILED WEALTH - TAX RETURN DISCLOSING INCOME HELD BY HIM FOR THE PREVIOUS YEAR IN THE FORM OF CASH IN THE WEALTH - TAX RET URN AND AGREED TO THE PROPOSITION OF TAXING INCOME BELONGED TO THE EARLIER YEAR IN THE IMPUGNED ASSESSMENT YEAR. THEREFORE CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE IN ITS ENTIRETY WE ARE OF THE CONSIDERED VIEW THAT LEVY OF PENALTY U/S.271(1 )(C) IN THE PRESENT CASE IS NOT JUSTIFIED. HENCE WE DELETE THE PENALTY EVEN AS SUSTAINED BY THE LEARNED CIT(A) BY ALLOWING THE APPEAL OF THE ASSESSEE. 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED. THIS O RDER IS PRONOUNCED IN OPEN COURT ON DT. 25 TH FEBRUARY 2011 SD/ - SD/ - ( . . ) (K.K.GUPTA) ACCOUNTANT MEMBER. ( . . . ) (K.S.S.PRASAD RAO) JUDICIAL MEMBER. ( ) DATE: 25 TH FEBRUARY 2011 - COPY OF THE ORDER FORWARDED TO: 1 . / THE APPELLANT : SHRI RAJKISHORE PATRA MATA MANDAPA SAHI PURI. 2 / THE RESPONDENT: ACIT CIRCLE 2(1 ) BHUBANESWAR. 3 . / THE CIT 4 . ( )/ THE CIT(A) 5 . / DR CUTTACK BENCH 6 . GUARD FILE . / TRUE COPY / BY ORDER ( ) ( H.K .PADHEE ) SENIOR.PRIVATE SECRETARY. I.T.A.NO. 206/CTK/2010 4 [ ] SENIOR PRIVATE SECRETARY