Gopi Krishna Panda, Bhubaneswar v. ITO, Ward-2(3), Bhubaneswar

ITA 229/CTK/2017 | 2009-2010
Pronouncement Date: 29-11-2017 | Result: Allowed

Appeal Details

RSA Number 22922114 RSA 2017
Assessee PAN ALDPP5522G
Bench Cuttack
Appeal Number ITA 229/CTK/2017
Duration Of Justice 5 month(s) 24 day(s)
Appellant Gopi Krishna Panda, Bhubaneswar
Respondent ITO, Ward-2(3), Bhubaneswar
Appeal Type Income Tax Appeal
Pronouncement Date 29-11-2017
Appeal Filed By Assessee
Tags No record found
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 29-11-2017
Assessment Year 2009-2010
Appeal Filed On 05-06-2017
Judgment Text
. . IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH CUTTACK BEFORE SHRI N.S.SAINI ACCOUNTANT MEMBER ./ ITA NO. 229 / CTK /20 1 7 ( / ASSESSMENT YEAR : 20 09 - 20 10 ) GOPI KRISHNA PANDA ASSISTANT P ROFESSOR REGIONAL COLLEGE OF MANAGEMENT CHANDRASEKHARPUR BHUBANESWAR - 753023 VS. ITO WARD - 2(3) BHUBANESWAR ./ ./ PAN/GIR NO. : A LDPP 5522 G ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI B.K.MOHAPATRA AR /REVENUE BY : SHRI D.K.PRADHAN DR / DATE OF HEARING : 2 8 / 1 1 /201 7 / DATE OF PRONOUNCEMENT 29 / 11 /201 7 / O R D E R TH IS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE O RDER OF THE CIT(A) - 2 BHUBANESWAR DATED 21.02.2017. 2. THE SOLE GROUND OF APPEAL TAKEN BY THE ASSESSEE THAT THE CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE LEVY OF PENALTY OF RS.15 00 000/ - U/S.271(1)(C) OF THE ACT 3. AT THE OUTSET LD AUTHORISED REPRESENTA TIVE OF THE ASSESSEE SUBMITTED THAT IN THE ORDER PASSED U/S.271(1)(C) OF THE ACT DATED 30.12.2015 THE AO HAS OBSERVED AS UNDER : - ACCORDINGLY PENALTY PROCEEDING U/S.271(1)(C) OF THE ACT WAS INITIATED FOR CONCEALMENT OF PARTICULARS OF INCOME AND FURNISHI NG INACCURATE PARTICULARS OF INCOME. HE FURTHER SUBMITTED THAT WHILE LEVYING THE PENALTY FINALLY IN THE ORDER THE ASSESSING OFFICER OBSERVED AS UNDER : - ITA NO. 229 /CTK/201 7 2 IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES AND IN THE BACKDROP OF CONCEALMENT AND FURNISHING INAC CURATE PARTICULARS OF INCOME ON THE PART OF THE ASSESSEE I DEEM IT PROPER TO IMPOSE A MINIMUM PENALTY U/S.271(1)(C) READ WITH SECTION 274 OF THE I.T.ACT 1961. 4. HE SUBMITTED THAT THE ASSESSING OFFICER WAS NOT CLEAR AS TO WHETHER HE WAS LEVYING PENALT Y ON THE ASSESSEE FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. 5. H E SUBMITTED THAT THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. SSAS. EMARLD MEADOWS DATED 11 TH JANUARY 2017 PASSED IN SPECIAL LEAVE TO A PPEAL (CC NO.11485/2016)/73 TAXMANN.COM 248 (SC) HAS HELD THAT OMISSION BY THE AO TO EXPLICITLY SPECIFY IN THE PENALTY ORDER AS TO WHETHER PENALTY PROCEEDINGS ARE BEING INITIATED FOR FURNISHING OF INACCURATE PARTICULARS OR FOR CONCEALMENT OF INCOME MAKES THE PENALTY ORDER LIABLE FOR CANCELLATION. HENCE HE SUBMITTED THAT PENALTY OF RS.10 00 000/ - IMPOSED BY THE ASSESSING OFFICER U/S.271(1)(C) IS THEREFORE LIABLE TO BE CANCELLED. 6. THE DEPARTMENTAL REPRESENTATIVE COULD NOT CONTROVERT THE ABOVE SUBMISSIO N OF LD AUTHORISED REPRESENTATIVE OF THE ASSESSEE. 7. I HAVE HEARD THE RIVAL SUBMISSIONS PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. I FIND THAT THE FACTS IN THE PRESENT APPEAL ARE NOT IN DISPUTE AND THE ASSESSING OFFICER IN THE ORDER PASSED U/S.271(1)(C) DATED 30. 12 .201 5 LEVIED PENALTY OF RS.1 5 00 000/ - . 8. HON'BLE APEX COURT VIDE JUDGMENT IN CASE OF M/S. SSA'S EMERALD MEADOWS (2016) 73 TAXMANN.COM 248(SC) DISMISSED THE SPECIAL LEAVE PETITION FILED BY THE REVENUE AGAI NST THE JUDGMENT RENDERED BY HON'BLE HIGH COURT OF KARNATAKA WHEREBY IDENTICAL ISSUE WAS DECIDED IN FAVOUR OF ITA NO. 229 /CTK/201 7 3 THE ASSESSEE. OPERATIVE PART OF THE JUDGMENT IN CASE OF M/S. SSA'S EMERALD MEADOWS (SUPRA) DECIDED BY HON'BLE HIGH COURT OF KARNATAKA IS REPRODUC ED BELOW : - '2. THIS APPEAL HAS BEEN FILED RAISING THE FOLLOWING SUBSTANTIAL QUESTIONS OF LAW: (1) WHETHER OMISSION IF ASSESSING OFFICER TO EXPLICITLY MENTION THAT PENALTY PROCEEDINGS ARE B EING INITIATED FOR FURNISHING OF INACCURATE PARTICULARS OR THAT FOR CONCEALMENT OF INCOME MAKES THE PENALTY ORDER LIABLE FOR CANCELLATION EVEN WHEN IT HAS BEEN PROVED BEYOND REASONABLE DOUBT THAT THE ASSESSEE HAD CONCEALED INCOME IN THE FACTS AND CIRCUMSTANCES OF THE CASE? (2 WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE TRIBUNAL WAS JUSTIFIED IN LAW IN. HOLDING THAT THE PENALTY NOTICE UNDER SECTION 274 R.W.S. 271(L)(C) IS HAD IN LAW AND. INVALID IN SPITE THE AMENDMENT OF SECTION 271(1 B) WITH RETROSPECTIVE EFF ECT AND BY VIRTUE OF THE AMENDMENT THE ASSESSING OFFICER HAS INITIATED THE PENALTY BY PROPERLY RECORDING THE SATISFACTION FOR THE SAME? (3) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE TRIBUNAL WAS JUSTIFIED IN DECIDING THE APPEALS AGAI NST THE REVENUE ON THE BASIS OF NOTICE ISSUED UNDER SECTION 274 WITHOUT TAKING INTO CONSIDERATION THE ASSESSMENT ORDER WHEN THE ASSESSING OFFICER HAS SPECIFIED THAT THE ASSESSEE HAS CONCEALED PARTICULARS OF INCOME? 3. THE TRIBUNAL HAS ALLOWED THE APPE AL FILED BY THE ASSESSEE HOLDING THE NOTICE ISSUED BY THE ASSESSING OFFICER UNDER SECTION 274 READ WITH SECTION 271(L)(C) OF THE INCOME TAX ACT 1961 (FOR SHORT 'THE ACT') TO BE BAD IN LAW AS IT DID NOT SPECIFY WHICH LIMB OF SECTION 271(L)(C) OF THE ACT T HE PENALTY PROCEEDINGS HAD BEEN INITIATED I.E. WHETHER FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. .THE TRIBUNAL WHILE ALLOWING THE APPEAL OF THE ASSESSEE HAS RELIED 01 THE DERISION OF THE DIVISION BENCH O F THIS COURT RENDERED IN THE CASE OF COMMISSIONER OR INCOME T AX - VS - MANJUNATHA C OTTON AND G INNING F ACTORY (2013) 359 ITR 565. 4. IN OUR VIEW SINCE THE MATTER IS COVERED BY JUDGMENT OF THE DIVISION BENCH OF THIS COURT WE ARE OF THE OPINION NO SUBSTAN TIAL QUESTION OF LAW ARISES IN THIS APPEAL FOR DETERMINATION BY THIS COURT THE APPEAL IS ACCORDINGLY DISMISSED.' 9 . THE PENALTY PROVISIONS OF SECTION 27L( 1 )(C) OF THE ACT ARE ATTRACTED WHERE THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME OR FURNISH ED ITA NO. 229 /CTK/201 7 4 INACCURATE PARTICULARS OF SUCH INCOME. IT IS ALSO A WELL - ACCEPTED PROPOSITION THAT THE AFORESAID TWO LIMBS OF SECTION 271( 1 )(C) OF THE ACT CARRY DIFFERENT MEANINGS. THEREFORE IT WAS IMPERATIVE FOR THE ASSESSING OFFICER TO STRIKE - OFF THE IRRELEVANT LIM B SO AS TO MAKE THE ASSESSEE AWARE AS TO WHAT IS THE CHARGE MADE AGAINST HIM SO THAT HE CAN RESPOND ACCORDINGLY. THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF MANJUNATHA COTTON & GINNING FACTORY 359 ITR 565 (KAR) OBSERVED THAT THE LEVY OF PENALTY HAS T O BE CLEAR AS TO THE LIMB UNDER WHICH IT IS BEING LEVIED. AS PER HON'BLE HIGH COURT WHERE THE ASSESSING OFFICER PROPOSED TO INVOKE FIRST LIMB BEING CONCEALMENT THEN THE NOTICE HAS TO BE APPROPRIATELY MARKED. THE HON'BLE HIGH COURT HELD THAT THE STANDARD PROFORMA OF NOTICE UNDER SECTION 274 OF THE ACT WITHOUT STRIKING OF THE IRRELEVANT CLAUSES WOULD LEAD TO AN INFERENCE OF NON - APPLICATION OF MIND BY THE ASSESSING OFFICER. THE HON'BLE SUPREME COURT IN THE CASE OF DILIP N. SHROFF VS. JCIT 291 ITR 519(SC) HA S ALSO NOTICED THAT WHERE THE ASSESSING OFFICER ISSUES NOTICE UNDER SECTION 274 OF THE ACT IN THE STANDARD PROFORMA AND THE INAPPROPRIATE WORDS ARE NOT DELETED THE SAME WOULD POSTULATE THAT THE ASSESSING OFFICER WAS NOT SURE AS TO WHETHER HE WAS TO PROCEE D ON THE BASIS THAT THE ASSESSEE HAD CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME. ACCORDING TO THE HON'BLE SUPREME COURT IN SUCH A SITUATION LEVY OF PENALTY SUFFERS FROM NON - APPLICATION OF MIND. IN THE BACKGROUND OF THE AFORESAID LEGAL POSITION AND HAVING REGARD TO THE MANNER IN WHICH THE ASSESSING OFFICER HAS PASSED THE ORDER U/S.271(1)(C) OF THE ACT DATED 30.12.2015 THE PENALTY ITA NO. 229 /CTK/201 7 5 PROCEEDINGS SHOW A NON - APPLICATION OF MIND BY THE ASSESSING OFFICER AND IS THU S UNSUSTAINABLE. 1 0 . THE FACTS OF THE PRESENT APPEAL ARE IDENTICAL TO THE FACTS OF THE CASE BEFORE THE HONBLE SUPREME COURT IN THE CASE OF SSAS. EMARLD MEADOWS(SUPRA) AND THEREFORE THE DECISION OF HONBLE SUPREME COURT SQUARELY APPLIES TO THE CASE OF THE ASSESSEE. HENCE RESPECTFULLY FOLLOWING THE SAME WE CANCEL THE ORDER OF THE ASSESSING OFFICER DATED 30.12.2015 LEVYING PENALTY U/S.271(1)(C) OF THE ACT AND ALLOW THE GROUND OF APPEAL OF THE ASSESSEE. 1 1 . IN THE RESULT APPEAL FILED BY THE ASSESSEE I S ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 29 / 11 /201 7 . SD/ - (N. S. SAINI) / ACCOUNTANT MEMBER CUTTACK ; DATED 29 / 11 /201 7 . . / PKM SENIOR PRIVATE SECRETARY / COPY OF THE O RDER FORWARDED TO : / BY ORDER ( SENIOR PRIVATE SECRETARY ) / ITAT CUTTACK 1. / THE APPELLANT - 2. / THE RESPONDENT - 3. ( ) / THE CIT(A) 4. / CIT 5. / DR ITAT CUTTACK 6. / GUARD FILE. //TRUE COPY//