Ashok Kumar Sharma, Keonjhar v. DCIT, Sambalpur

ITA 476/CTK/2011 | 2007-2008
Pronouncement Date: 22-12-2011

Appeal Details

RSA Number 47622114 RSA 2011
Assessee PAN AJVPS7663R
Bench Cuttack
Appeal Number ITA 476/CTK/2011
Duration Of Justice 1 month(s)
Appellant Ashok Kumar Sharma, Keonjhar
Respondent DCIT, Sambalpur
Appeal Type Income Tax Appeal
Pronouncement Date 22-12-2011
Appeal Filed By Assessee
Bench Allotted DB
Tribunal Order Date 22-12-2011
Assessment Year 2007-2008
Appeal Filed On 21-11-2011
Judgment Text
IN THE INC O ME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE : SHRI K.K.GUPTA AM AND SHRI K.S.S.PRASAD RAO JM SL. NO. ITA NO. APPELLANT RESPONDENT A.Y. 1 ) 476 AND 477/CTK/2011 ASHOK KUMAR SHARMA MADHPUR KEONJHAR 758 001 DCIT CIRCLE 2(1) S AMBALKPUR. 2007 - 08 AND 2008 - 09 2 ) 478 AND 479/CTK/2011 NIRMAL KUMAR SHARMA PAN: AJVPS 7663 R ADDRESS AS ABOVE. - DO - - DO - 3 ) 480/CTK/2011 RAJ KUMAR SHARMA(HUF) PAN: AAIHR 6710 E ADDRESS AS ABOVE. - DO - 2008 - 09 FOR THE ASSESSEES : SHRI D.K.SETH/M.SETH AR S FOR THE DEPARTMENT: SMT. PARAMITA TRIPATHY DR DATE OF HEARING : 19.12.2011 DATE OF PRONOUNCEMENT : 22.12.2011 ORDER PER BENCH : ALL THESE APPEALS ARE FILED BY THE ASSESSEES HAVING BEEN AGGRIEVED BY THE ORDERS OF THE COMMISSIO NER OF INCOME - TAX (APPEALS) FOR THE RESPECTIVE AYS . SINCE THE ISSUE IN ALL THESE APPEALS ARE COMMON BEING ONE AND SAME THEY WERE HEARD TOGETHER AND DISPOSED BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. ALL THE ASSESSEES HAVE RAISED THE SIMILAR AN D SAME ISSUE AS DETAILED HEREUNDER : 1. THE PENALTY AS IMPOSED AGAINST THE ASSESSEES U/S.271AAA OF THE I.T.ACT IS ARBITRARY UNJUSTIFIED AND ILLEGAL. 2. THE ASSESSING OFFICER IS NOT JUSTIFIED IN IMPOSING PENALTY U/S.271AAA OF THE I.T.ACT. 3. THE ASSESSI NG OFFICER AS WELL AS THE LEARNED CIT(A) FAILED TO APPRECIATE THE CONTENTIONS OF THE ASSESSEES . ITA NOS. 476 TO 480/CTK/2011 (GROUP CASES) 2 3. BOTH THE PARTIES WERE HEARD REGARDING THE ISSUES RAISED IN THE RESPECTIVE APPEALS AND THEIR LEGAL IMPLICATIONS. 4. THERE WAS A SEARCH IN THE CASES AND THEY HAVE OFFERED CONCEALED INCOME FOR ASSESSMENT BY GIVING STATEMENT U/S.132 AND THEY PAID THE TAX ON THE SURRENDERED INCOME. BUT THE ASSESSING OFFICER HAS INVOKED THE PROVISIONS OF SECTION 271AAA BY ISSUING SHOW CAUSE NOTICE TO THE ASSESSEES. A COPY OF THE N OTICE RECEIVED BY THE ASSESSEE IS MADE AVAILABLE TO THE TRIBUNAL AND AFTER HEARING THE ASSESSEES CONTENTION THE ASSESSING OFFICER PASSED PENALTY ORDERS AGAINST THE ASSESSEES U/S.271AAA OF THE I.T.ACT. THE LEARNED CIT(A) HAS CONFIRMED THESE ORDERS OF THE A SSESSING OFFICER IN THE APPEALS PREFERRED BEFORE HIM BY THE ASSESSEES AGAINST THOSE ORDERS OF THE ASSESSING OFFICER. HENCE THE ASSESSEES HAVE FILED THE PRESENT APPEALS BEFORE THE TRIBUNAL. 5. DURING THE COURSE OF HEARING THE LEARNED AR OF THE ASSESSEE HA S VEHEMENTLY ARGUED CONTENDING INTER ALIA THAT THE NOTICES INITIATING PENALTY PROCEEDINGS AGAINST THE ASSESSEES AS ISSUED BY THE ASSESSING OFFICER IS VERY VAGUE AS CAN BE SEEN FROM THE NOTICE COPY SERVED ON THE ASSESSES. THEREFORE SUCH NOTICE IS INVALID A ND CONSEQUENTLY THE PENALTY LEVIED IN ABSENCE OF SHOW CAUSE NOTICE IS LIABLE TO BE CANCELLED. HE RELIED ON THE DECISION OF HONBLE BOMBAY HIGH COURT RENDERED IN THE CASE OF CIT V. SMT. KAUSHALYA AND OTHERS (216 ITR 660). APART FROM THAT THE LEARNED AR OF T HE ASSESSEE HAS FURTHER CONTENDED THAT THE PENALTY U/S.271AAA IS NOT AUTOMATIC. THE ASSESSING OFFICER HAS TO JUSTIFY THE LEVY OF PENALTY BY ESTABLISHING THE NECESSARY INGREDIENTS PROVIDED IN THE PENAL PROVISIONS OF SECTION 271AAA OF THE I.T.ACT. THUS CONTE NDING THE LEARNED AR OF THE ASSESSEE SOUGHT FOR CANCELLING THE PENALTY LEVIED AGAINST THE ASSESSEES BY ALLOWING THE APPEALS FILED BY THE ASSESSEES. ITA NOS. 476 TO 480/CTK/2011 (GROUP CASES) 3 6. CONTRARY TO THIS THE LEARNED DR HAS VEHEMENTLY ARGUED SUPPORTING THE ORDERS OF THE LEARNED CIT(A) AS WE LL AS THE ASSESSING OFFICER AND SOUGHT FOR UPHOLDING THE SAME BY DISMISSING THE APPEALS OF THE ASSESSEE. 7. ON CAREFUL CONSIDERATION OF THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND ANALYZING THE IMPUGNED ORDERS PASSED BY THE DEPARTMENTAL AUTHORITIES IN T HE LIGHT OF THE CONTENTIONS OF THE RIVAL PARTIES IT IS SEEN THAT THE ASSESSEES HAVE DISCLOSED CONCEALED INCOME WHILE GIVING STATEMENTS U/S.132 DURING THE COURSE OF SEARCH AND PAID THE TAX THEREON AND SHOWED THE SAID UNDISCLOSED INCOME IN THE RETURN FILED UNDER THE HEAD INCOME FROM BUSINESS AND DEPARTMENT HAS ACCEPTED THESE RETURNS AND ACCORDINGLY PASSED THE ASSESSMENT ORDERS. APART FROM THAT THE PROVISIONS CONTAINED IN SUB - SECTION (2) OF SECTION 271AAA READS AS UNDER : (2) NOTHING CONTAINED IN SUB - SECT ION (1) SHALL APPLY IF THE ASSESSEE ( I ) IN THE COURSE OF THE SEARCH IN A STATEMENT UNDER SUB - SECTION (4) OF SECTION 132 ADMITS THE UNDISCLOSED INCOM E AND SPECIFIES THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED; ( II ) SUBSTANTIATES THE MANNER IN WHICH THE UNDISCLOSED INCOME WAS DERIVED; AND ( III ) PAYS THE TAX TOGETHER WITH INTEREST IF ANY IN RESPECT OF THE UNDISCLOSED INCOME. 8. IN THE PRESENT CASES ON HAND IT IS NOT THE CASE OF THE DEPARTMENTAL AUTHORITIES THAT THE ASSESSEE HAS NOT SATISFIED THE MANNER IN WHICH THE INCOME IS DERIVED AND THE ASSESSEE HAS NOT PAID THE TAX WITH INTEREST ON THE UNDISCLOSED INCOME. UNDISPUTEDLY THE ASSESSEES HAVE SHOWN THE UNDISCLOSED INCOME UNDER THE HEAD INCOME FROM BUSINESS IN THE RETURNS FILED BY THEM AND THAT WAS ACCEPTED BY THE DEPARTMENT BY PASSING THE ASSESSMENT ORDERS ACCORDINGLY. THEREFORE THE CASES OF THE ASSESSEES FALL EXACTLY WITHIN THE ITA NOS. 476 TO 480/CTK/2011 (GROUP CASES) 4 PURVIEW OF S UB - SECTION (2) OF SECTION 271AAA. THEREFORE THE PROVISIONS CONTAINED IN SUB - SECTION (1) OF SECTION 271AAA ARE NOT APPLICABLE. THE DEPARTMENTAL AUTHORITIES HAVE NOT CONSIDERED THIS ASPECTS OF THE ISSUE AND PASSED THE IMPUGNED ORDERS. THE IMPUGNED ORDERS HAV ING BEEN MADE CONTRARY TO THE PROVISIONS CONTAINED IN SECTION 271AAA(2) THEY ARE NOT SUSTAINABLE FOR LEGAL SCRUTINY. HENCE WE HEREBY SET ASIDE THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW AND CANCEL THE PENALTY LEVIED U/S.271AAA OF THE I.T.ACT IN THE CAS ES OF THE ASSESSEES BY ALLOWING THEIR APPEALS. 9. IN THE RESULT THE APPEALS OF THE ASSESSEES ARE ALLOWED. S D/ - S D/ - (K.K.GUPTA) ACCOUNTANT MEMBER ( K.S.S.PRASAD RAO) JUDICIAL MEMBER DATE: 22.12.2011 H.K.PADHEE SENIOR PRIVATE SECRETARY. COPY OF THE ORDER FORWARDED TO : 1 . THE APPELLANT S : 1. ASHOK KUMAR SHARMA MADHPUR KEONJHAR 758 001 2. NIRMAL KUMAR SHARMA PAN: AJVPS 7663 R ADDRESS AS ABOVE. 3. RAJ KUMAR SHARMA(HUF) PAN: AA IHR 6710 E ADDRESS AS ABOVE. 2 . THE RESPONDENT: DCIT CIRCLE 2(1) SAMBALKPUR. 3 . THE CIT 4 . THE CIT(A) 5 . THE DR CUTTACK 6 . GUARD FILE (IN DUPLICATE) TRUE COPY BY ORDER SENIOR PRIVATE S ECRETARY.