ITO, Jeypore v. Sibopada Goldar, Malkanagiri

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. 275 AND 276/CTK/2010 / ASSESSMENT YEAR 2005 - 06 AND 2006 - 07 INCOME - TAX OFFICER WARD 2 JEYPORE. - - - VERSUS - SHRI SIBIOPADA GOLDAR PROP. M/S.SARALA DEVI MODERN RICE MILL MAIN ROAD KALIMELA. PAN AEMPG 7522 B. ( /APPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI N.ANAND RAO AR / FOR THE RESPONDENT: / SHRI J.KHANRA DR / ORDER . . SHRI K.K.GUPTA ACCOUNTANT MEMBER. THESE APPEALS BY THE REVENUE ARE ON THE ACTION OF THE LEARNED CIT(A) HAVING GIVEN PART RELIEF ON THE PENALTY SO LEVIED FOR THE TWO AYS ON THE BASIS OF FACTS AND CIRCUMSTANCES ENUMERATED UPON BY THE EARNED CIT (A). 2. IT MAY BE NOTED THAT THE APPEALS BEING ITA NOS.256 AND 257/CTK/2010 FOR THE IMPUGNED AYS WERE ALSO PREFERRED BY THE ASSESSEE BEFORE THE TRIBUNAL WHEN PART CONFIRMATION OF THE PENALTY WAS AGITATED AGAINST. BY ORDER DT.15.9.2010 THE RESIDUAL PENAL TY SO CONFIRMED WERE DIRECTED TO BE DELETED BY THE TRIBUNAL WHICH COPY OF THE ORDER HAS BEEN FURNISHED BY THE LEARNED COUNSEL FOR THE ASSESSEE. 3. THE LEARNED DR POINTED OUT THAT THE PENALTIES WERE LEVIED ON THE BASIS OF ESTIMATION OF INCOME WHICH WAS CO NSIDERED IN DETAIL BY THE LEARNED CIT(A) I.T.A.NO. 275 AND 276/CTK/2010 2 ON THE AMOUNT BROUGHT TO TAX BY THE ASSESSING OFFICER WHEN THE TRIBUNAL CONSIDERED THE LEVY OF PENALTY WHETHER COULD BE JUSTIFIED ON THE ASSESSEE FURNISHING INACCURATE PARTICULARS OF INCOME OR CONCEALMENT OF INCOME. THE PART RELIEF GRANTED BY THE LEARNED CIT(A) WAS THEREFORE PREFERRED TO BE APPEALED AGAINST BEFORE THE TRIBUNAL WHICH MAY BE CONSIDERED ON THE BASIS OF FACTS AND CIRCUMSTANCES NOTED IN THE ORDER. 4. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT O NCE THE VERY RESIDUAL AMOUNT OF PENALTY SO CONFIRMED BY THE LEARNED CIT(A) HAS BEEN DIRECTED TO BE DELETED BY THE TRIBUNAL QUESTION OF CONSIDERING THE PART RELIEF ON THE BASIS OF THE LEARNED CIT(A) BRINGING ON RECORD THE FACTS WHETHER CAN BE CONSIDERED AS OF NOW IN VIEW OF THE FACT THAT THE TRIBUNAL WAS APPRISED OF THE BASIS WHEN THE PARTICULAR INCOME WAS IDENTIFIED OF HAVING BEEN FURNISHED AS INACCURATE LY OR CONCEAL ED . 5. AFTER HAVING HEARD THE RIVAL CONTENTIONS WE ARE INCLINED TO HOLD THAT THE CONTENT ION OF THE LEARNED DR IN THESE APPEALS DOES NOT HOL D MERIT INSOFAR AS THE TRIBUNAL HE LD THAT ALL THE RECEIPTS THAT WERE BROUGHT TO TAX WERE CONSIDERED TAXABLE BUT ON THE BASIS OF BANK CREDITS WHICH WERE CONSIDERED BY THE LEARNED CIT(A) FOR GIVING PART RELI EF ON THE AMOUNT OF PENALTY SUSTAINED. HAVING STATED SO THE MOOT QUESTION BEFORE THE ASSESSEE WAS NOT ABLE TO DISCHARGE THE ONUS OF HAVING CONCEALED INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME WILL NOT HOLD GOOD IN SOFAR AS THE TRIBUNAL HAD HELD THE SAME AS NOT TENABLE TO INVOKE THE PROVISIONS OF SECTION 271(1)(C) IN THE LIGHT THEREOF . WE ARE INCLINED TO HOLD THAT THE APPEALS BY THE REVENUE ARE BOUND TO BE DISMISSED. I.T.A.NO. 275 AND 276/CTK/2010 3 6. IN THE RESULT THE APPEAL OF THE REVENUE IS DISMISSED. THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 25 TH FEBRUARY 2011 SD/ - SD/ - ( . . . ) ( K.S.S.PRASAD RAO) JUDICIAL MEMBER ( . . ) (K.K.GUPTA) ACCOUNTANT MEMBER. ( ) DA TE: 25 TH FEBRUARY 2011 - COPY OF THE ORDER FORWARDED TO: 1 . / THE APPELLANT : INCOME - TAX OFFICER WARD 2 JEYPORE. 2 / THE RESPONDENT: SHRI SIBIOPADA GOLDAR PROP. M/S.SARALA DEVI MODERN RICE MILL MAIN ROAD KALIMELA. 3 . / THE CIT 4 . ( )/ THE CIT(A) 5 . / DR CUTTACK BENCH 6 . GUARD FILE . / TRUE COPY / BY ORDER [ ] SENIOR PRIVATE SECRETARY ( ) ( H.K.PADHEE ) SENIOR.PRIVATE SECRETARY.