Vinod Kumar Rudani (HUF), Kolkata v. I.T.O.,Ward - 42(2), Kolkata, Kolkata

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : KOLKATA [BEFORE HONBLE SRI D. K. TYAGI JM & HONBLE SRI B. C. MEENA AM] I.T.A. NO.2103/KOL/2009 ASSESSMENT YEAR: 2005-06 VINOD KUMAR RUDANI (HUF) KOLKATA -VS- INCOME-TAX OFFICER WD-42(2) KOLKATA (PA NO. AADHV 4502 R) (APPELLANT) (RESPONDENT) APPELLANT BY : N O N E RESPONDENT BY : SRI A. K. PRAMANICK O R D E R PER D. K. TYAGI JM: THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER OF THE LD. CIT(A) KOLKATA DATED 24.08.2009 FOR ASSESSMENT YEA R 2005-06 IN RESPECT OF UPHOLDING THE PENALTY U/S. 271(1)(C) OF THE ACT 2. NONE APPEARED ON BEHALF OF THE ASSESSEE AT THE T IME OF HEARING BEFORE US. AFTER HEARING THE LD. DR WE DISPOSE OF THE APPEAL ON MER ITS. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE I S ENGAGED IN THE BUSINESS OF TRADING OF MARBLES TILES SANITARY ITEMS AND WAS ASSESSED U/S. 143(3) OF THE ACT ON A TOTAL INCOME OF RS.2 71 440/- AGAINST THE RETURNED INCOME OF RS.1 94 440/-. THE AO INITIATED PENALTY PROCEEDINGS U/S. 271(1)(C) WITH REGARD TO THE ADDITION OF RS.77 000/- RELATED TO ADVANCES RECEIVED FROM FOUR PARTIES. THE AO BASED ON THE INSPECTORS REPORT THAT THE ABOVE FOUR PERSONS COULD NOT BE TRACED OR NO INFORM ATION ABOUT THEM COULD NOT BE GATHERED FROM LOCAL ENQUIRY MADE THIS SPECIFIC ADDI TION AS UNDISCLOSED CASH CREDIT. DURING THE COURSE OF PENALTY PROCEEDINGS THE ASSE SEE FAILED TO COMPLY WITH THE PENALTY NOTICE. AS SUCH THE AO PROCEEDED TO LEVY A PENAL TY U/S. 271(1)(C) OF THE I. T. ACT OF RS.35 546/- EQUIVALENT TO 150% OF TAX SOUGHT TO BE EVADED. IN APPEAL THE LD. CIT(A) CONFIRMED THE ACTION OF THE AO. BEING FURTHER AGGR IEVED NOW THE ASSESSEE IS IN APPEAL BEFORE US. 4. THE LD. DR APPEARING FOR THE REVENUE VEHEMENTLY RELIED ON THE ORDER OF THE LD. CIT(A) AND URGED BEFORE THE BENCH TO CONFIRM THE AC TION OF THE LD. CIT(A). HE ALSO SUBMITTED THAT THE ASSESSEE WAS NOT ABLE TO PRODUC E DOCUMENTARY EVIDENCES IN RESPECT OF ADVANCES TO PROVE THE IDENTITY CREDITWORTHINESS AND GENUINENESS OF THE FOUR CREDITORS. HE ALSO SUBMITTED THAT EVEN DURING THE PENALTY PROCEEDINGS THE ASSESSEE 2 FAILED TO COMPLY WITH THE PENALTY NOTICE. THEREFOR E THE LD. CIT(A) HAS RIGHTLY CONFIRMED THE PENALTY AS THE ASSESSEE DID NOT POSSE SS ANY DOCUMENTS IN RESPECT OF THE ADVANCES TO PROVE THE IDENTITY CREDITWORTHINESS A ND GENUINENESS OF THE CREDITORS. HE LASTLY PRAYED TO DISMISS THE APPEAL OF THE ASSESSEE . 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE LD. CIT(A) HAS CONFIRMED THE PENALTY SINCE THE ASSESSEE WAS NOT ABLE TO PROVE THE IDENTITY GENUINENESS AND CRE DITWORTHINESS OF THE FOUR CREDITORS. HE ALSO POINTED OUT THAT EVEN DURING THE COURSE OF PENALTY PROCEEDINGS THE ASSESSEE FAILED TO COMPLY WITH THE PENALTY NOTICE AND THE AR GUMENTS PUT FORTH BY THE ASSESSEE DURING THE COURSE OF APPELLATE PROCEEDINGS WAS NOT TENABLE. BEFORE US ALSO THE ASSESSEE DID NOT TURN UP WITH ANY EVIDENCE TO CONTROVERT THE FINDINGS OF THE LD. CIT(A). HOWEVER TAKING A LINIENT VIEW WE FEEL THAT THE AO SHOULD HAVE IMPOSED MINIMUM PENALTY. THE AO IS DIRECTED TO RECALCULATE THE PEN ALTY ACCORDINGLY. THE APPEAL OF THE ASSESSEE IS ALLOWED IN PART. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS AL LOWED IN PART. 7. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 21. 5.10 SD/- SD/- (B. C. MEENA ) (D. K. TYAGI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 21ST MAY 2010 COPY TO : 1. M/S. VINOD KUMAR RUDANI HUF 6/5 JESSORE ROAD K OLKATA-700028. 2. ITO WARD-42(2) KOLKATA. 3. CIT(A) KOLKATA. 4. CIT KOLKATA. 5. D.R. ITAT KOLKATA. TRUE COPY BY ORDER DEPUTY REGISTRAR JD.(SR.P.S.) I.T.AT. KOLKATA