Shri Ratan Kumar Paul, Dakshin Dinajpur v. DCIT, CC-XXVII, KOLKATA, Kolkata

ITA 823/KOL/2016 | 2009-2010
Pronouncement Date: 17-11-2017 | Result: Allowed

Appeal Details

RSA Number 82323514 RSA 2016
Assessee PAN AKLPP6116F
Bench Kolkata
Appeal Number ITA 823/KOL/2016
Duration Of Justice 1 year(s) 6 month(s) 21 day(s)
Appellant Shri Ratan Kumar Paul, Dakshin Dinajpur
Respondent DCIT, CC-XXVII, KOLKATA, Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 17-11-2017
Appeal Filed By Assessee
Tags No record found
Order Result Allowed
Bench Allotted B
Tribunal Order Date 17-11-2017
Assessment Year 2009-2010
Appeal Filed On 26-04-2016
Judgment Text
D IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D KOLKATA BEFORE SHRI WASEEM AHMED ACCOUNTANT MEMBER AND SHRI S.S.VISWANETHRA RAVI JUDICIAL MEMBER ITA NO.820-824/KOL/2016 ASSESSMENT YEARS:2006-07 TO 2010-11 SHRI RATAN KUMAR PAUL THANA ROAD GANGARAMPUR DAKSHIN DINAJPUR-PIN 733124 [ PAN NO.AKLPP 6116 F ] / V/S . DCIT CC-XXVII AAYAKAR BHAWAN PURVA 110 SHANTI PALLI E.M. BY-PASS KOLKATA-107 /APPELLANT .. /RESPONDENT /BY ASSESSEE SHRI SUBASH AGARWAL ADVOCATE ! /BY RESPONDENT SHRI ARINDAM BHATTACHERJEE ADL. CIT-DR /DATE OF HEARING 02-11-2017 /DATE OF PRONOUNCEMENT 17-11-2017 /O R D E R PER BENCH:- THESE FIVE APPEALS BY THE ASSESSEE ARE DIRECTED AGA INST THE DIFFERENT ORDERS OF COMMISSIONER OF INCOME TAX (APPEALS)-21 KOLKATA OF EVEN DATE I.E.18.02.2016. ASSESSMENTS WERE FRAMED BY DCIT CC-XXVII KOLKATA U/S 153A/143(3) OF THE INCOME TAX ACT 1961 (HEREINAFTER REFERRED TO AS T HE ACT) VIDE HIS ORDERS DATED 28.03.2014 FOR ASSESSMENTS YEAR 2006-07 TO 2010-11 RESPECTIVELY. PENALTY LEVIED BY THE ASSESSING OFFICER U/S 271(1)(B) OF THE ACT VIDE HIS ORDERS DATED 03-09-2014. SHRI SUBASH AGARWAL ADVOCATE APPEARED ON BEHALF OF ASSESSEE AND SHRI ARINDAM BHATTACHERJEE LD. DEPARTMENTAL REPRESENTATIVE APPE ARED ON BEHALF OF REVENUE. ITA NO.820-824/KOL/2016 A YS 06-07 TO10-11 RATAN KR. PAUL VS. DCIT CC-XXVII K OL PAGE 2 2. IN ALL THE APPEALS THE FACTS AND CIRCUMSTANCES A RE IDENTICAL EXCEPT FIGURE THEREFORE ALL THE APPEALS WERE HEARD TOGETHER AND A RE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. WE FIRST TAKE UP THE APPEAL IN ITA NO.820/KOL/2016 RELATING TO A.Y. 2006-07 AS LEAD CASE. 3. THE GROUND AS RAISED BY THE ASSESSEE READS AS UN DER:- 1. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE PENALTY TO THE TUNE OF RS.10 000/- IMPOSED BY THE AO U/S 271(1)(B) OF THE ACT. 2. FOR THAT THE LD. CIT(A) OUGHT TO HAVE DELETED TH E ENTIRE PENALTY OF RS.10 000/- IMPOSED U/S 271(1)(B) SINCE THE ASSESSE E WAS PREVENTED BY REASONABLE CAUSE FOR NON APPEARANCE DURING THE COUR SE OF ASSESSMENT PROCEEDING. 3. THAT THE APPELLANT CRAVES LEAVE TO ADD ALTER OR DELETE ALL OR ANY OF THE GROUNDS OF APPEAL. 4. THE ONLY ISSUE RAISED BY THE ASSESSEE IN THIS AP PEAL IS THAT LD CIT(A) ERRED IN CONFIRMING THE PENALTY ORDER OF AO U/S 271(1)(B) OF THE ACT. 5. BRIEFLY THE FACTS ARE THAT THE ASSESSEE IS AN I NDIVIDUAL AND BELONGS TO PAUL GROUP WHERE A SEARCH & SEIZURE OPERATION WAS CONDUC TED U/S 132 OF THE ACT. THEREFORE THE ASSESSEE WAS COVERED UNDER THE SEARCH PROCEEDINGS UNDER SECTION 153A OF THE ACT. THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS U/S 153A/143(3) OF THE ACT ISSUED NOTICE U/S 142(1) OF THE ACT BUT THE ASSESSEE FAILED TO COMPLY THE SAME. THE NECESSARY DETAILS STAND AS UND ER. S.NO. DATE PARTICULARS REMARKS 1. 16.4.2013 NOTICE ISSUED U/S 142(1) COMPL IANCE BY THE ASSESSEE 2. 28.10.2013 NOTICE ISSUED U/S 142(1) NON-COMPLIA NCE BY THE ASSESSEE. IN THIS NOTICE THE HEARING DATE WAS FIXED ON 6.11.2 013 BUT THE REPLY WAS FILED LATE I.E. 13.11.2013 IN VIEW OF ABOVE THE AO DURING ASSESSMENT PROCEEDI NGS INITIATED PENALTY PROCEEDINGS U/S 271(1)(B) OF THE ACT. FINALLY THE AO AFTER CON SIDERING THE REPLY OF THE ASSESSEE IMPOSED THE PENALTY FOR RS.10 000/- FOR THE DEFAULT COMMITTED BY THE ASSESSEE AS DISCUSSED ABOVE. 6. AGGRIEVED ASSESSEE PREFERRED AN APPEAL BEFORE L D. CIT(A). THE ASSESSEE BEFORE LD. CIT(A) SUBMITTED THAT THE HEALTH CONDITI ON OF ONE OF THE PARTNER OF THE FIRM ITA NO.820-824/KOL/2016 A YS 06-07 TO10-11 RATAN KR. PAUL VS. DCIT CC-XXVII K OL PAGE 3 WAS VERY CRITICAL THEREFORE THE COMPLIANCES COULD NOT MADE. THE ASSESSEE IN SUPPORT OF ITS CLAIM HAS ALSO PRODUCED THE COPY OF MEDICAL CERTIFICATES. THE ASSESSEE IN SUPPORT OF ITS CLAIM HAS ALSO RELIE D ON THE JUDGMENT OF THE HONBLE APEX COURT IN THE CASE OF HINDUSTAN STEEL LIMITED V. STATE OF ORISSA REPORTED IN 83 ITR 26(SC). HOWEVER LD. CIT(A) DISREGARDED THE CONTENTION OF T HE ASSESSEE AND CONFIRMED THE ORDER OF AO. BEING AGGRIEVED BY THE ABOVE FINDING OF LD. CIT(A) THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 7. THE LD. AR BEFORE US FILED PAPER BOOK WHICH IS R UNNING PAGES FROM 1 TO 21 AND SUBMITTED THAT ALL THE QUERIES RAISED BY THE AO DUR ING ASSESSMENT PROCEEDINGS WERE DULY REPLIED BY THE ASSESSEE AS EVIDENT FROM THE OR DER OF AO -PARAGRAPH NUMBER 6 WHICH READS AS UNDER:- 6.0 FURTHER VARIOUS QUERIES WERE RAISED BEFORE THE ASSESSEE ON DIFFERENT DATES REPLY OF WHICH HAS BEEN SUBMITTED PERUSED A ND PLACED ON RECORD. ACCORDINGLY THE LD AR SUBMITTED THAT SUBSTANTIAL CO MPLIANCES WERE MADE BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDING S. THEREFORE NO PENALTY IN THE INSTANT CASE IS CALLED FOR. THE LD AR IN THIS REGAR D HAS RELIED ON THE ORDER OF HONBLE ITAT IN THE CASE OF AKHIL BHARTIYA PRATHMIK SHIKSHAK SANGH BHAWAN TRUS T VS. ASSISTANT DIRECTOR OF INCOME TAX REPORTED IN 115 TTJ (DEL) 419. THE RELEVANT EXTRAC T READS AS UNDER:- 2.5 WE ALSO FIND THAT FINALLY THE ORDER WAS PASSED UNDE R S. 143(3) AND NOT UNDER S. 144 OF THE ACT. THIS MEANS THAT SUBSEQUENT COMPLIANCE IN THE ASSESSMENT PROCEEDINGS WAS CONSIDERED AS GOOD COMPL IANCE AND THE DEFAULTS COMMITTED EARLIER WERE IGNORED BY THE AO. THEREFORE IN SUCH CIRCUMSTANCES THERE COULD HAVE BEEN NO REASON TO COME TO THE CONC LUSION THAT THE DEFAULT WAS WILLFUL. ON THE OTHER HAND THE LD. DR SUBMITTED THAT THE ME DICAL CERTIFICATES WERE NOT PRODUCED BEFORE THE AO TO JUSTIFY THAT THERE WAS RE ASONABLE CAUSE WHICH PREVENTED THE ASSESSEE TO RESPONSE THE NOTICE ISSUED UNDER SECTIO N 142(1) OF THE ACT. THE LD. DR ALSO ITA NO.820-824/KOL/2016 A YS 06-07 TO10-11 RATAN KR. PAUL VS. DCIT CC-XXVII K OL PAGE 4 CONTENDED THAT THE ASSESSEE IN THE INSTANT CASE WAS INTENTIONALLY DELAYING THE PROCEEDINGS TO TAKE THE ASSESSMENT AT THE FAG-END I N ORDER TO DIVERT THE ATTENTION OF THE AO. HE VEHEMENTLY SUPPORTED THE ORDER OF LOWER AUTH ORITIES. IN REJOINDER LD AR SUBMITTED THAT ALL THE MEDICALS BILLS WERE DULY PRODUCED BEFORE THE LD CIT(A) AND HE GOT CO-TERMINUS POWER TO VERIF Y THE SAME BUT HE FAILED TO DO SO. THE LD AR ALSO SUBMITTED THAT THE PENALTY CANNOT BE IMPOSED ON ACCOUNT OF TECHNICAL GROUND. IN THIS REGARD THE LEARNED AR RELIED ON THE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF HINDUSTAN STEEL (SUPRA) . 8. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED AND CAREFULLY CONSIDERED THE MATERIAL ON RECORD; INCLUD ING THE JUDICIAL PRONOUNCEMENTS CITED AND PLACED RELIANCE UPON. AT THE OUTSET IT WA S OBSERVED THAT IN THE IDENTICAL FACTS AND CIRCUMSTANCES THE HONBLE DELHI TRIBUNAL HAS DE CIDED THE ISSUE IN FAVOUR OF ASSESSEE IN THE CASE OF AKHIL BHARTIYA PRATHMIK SHIKSHAK SANGH BHAWAN TRUST (SUPRA) BY OBSERVING THAT THE ASSESSMENT WAS FRAMED UNDER S ECTION 143(3) OF THE ACT WHICH PROVES THAT SUBSTANTIAL COMPLIANCES WERE MADE BY TH E ASSESSEE. THUS IT CANNOT BE HELD THAT THE DEFAULT COMMITTED BY THE ASSESSEE WAS WILL FUL. THUS WE ARE INCLINED NOT TO UPHOLD THE ORDER OF LOWER AUTHORITIES. 9. SIMILARLY WE ALSO FIND THAT THE HONBLE APEX CO URT IN THE CASE OF HINDUSTAN STEEL (SUPRA) HAS HELD THAT THE PENALTY SHOULD NOT BE IMPOSED UN LESS THE ASSESSEE ACTED DELIBERATELY. THE RELEVANT EXTRACT READS AS UNDER : OBLIGATION IS THE RESULT OF A QUASI- CRIMINAL PROCE EDING AND PENALTY WILL NOT ORDINARILY BE IMPOSED UNLESS THE PARTY OBLIGED EIT HER ACTED DELIBERATELY IN DEFIANCE OF LAW OR WAS GUILTY OF CONDUCT CONTUMACIOUS OR DIS HONEST OR ACTED IN CONSCIOUS DISREGARD OF ITS OBLIGATION. PENALTY WILL NOT ALSO BE IMPOSED MERELY BECAUSE IT IS LAWFUL TO DO SO. WHETHER PENALTY SHOULD BE IMPOSED FOR FAILURE TO PERFORM A STATUTORY OBLIGATION IS A MATTER OF DISCRETION OF THE AUTHORI TY TO BE EXERCISED JUDICIALLY AND ON A CONSIDERATION OF ALL THE RELEVANT CIRCUMSTANCES. EV EN IF A MINIMUM PENALTY IS PRESCRIBED THE AUTHORITY COMPETENT TO IMPOSE THE P ENALTY WILL BE JUSTIFIED IN REFUSING TO IMPOSE PENALTY WHEN THERE IS A TECHNICAL OR VEN IAL BREACH OF THE PROVISIONS OF THE ACT OR WHERE THE BREACH FLOWS FROM A BONA FIDE BELI EF THAT THE OFFENDER IS NOT LIABLE TO ACT IN THE MANNER PRESCRIBED BY THE STATUTE. AS WE HAVE ALREADY DECIDED THE ISSUE IN FAVOUR OF A SSESSEE IN VIEW OF THE ABOVE FACTS THEREFORE WE ARE NOT INCLINED TO COMMENT ON THE CON TENTIONS RAISED BY THE LD DR AT THE TIME OF HEARING AS WELL AS OBSERVATIONS MADE BY THE LD CIT(A) IN HIS ORDER. ITA NO.820-824/KOL/2016 A YS 06-07 TO10-11 RATAN KR. PAUL VS. DCIT CC-XXVII K OL PAGE 5 RESPECTFULLY FOLLOWING THE AFORESAID JUDGMENTS WE R EVERSE THE ORDER OF AUTHORITIES BELOW. ACCORDINGLY AO IS DIRECTED TO DELETE THE SA ME. 10. IN THE RESULT ASSESSEES APPEAL IS ALLOWED. COMING TO ITA NO.821-824/KOL/2016 FOR A.YS. 07-08 T O10-11. 11. IN THE REMAINING APPEALS SINCE THE FACTS ARE E XACTLY IDENTICAL EXCEPT FIGURE BOTH THE PARTIES ARE AGREED WHATEVER VIEW TAKEN IN THE ABOVE APPEAL (ITA NO.820/KOL/2016) MAY BE TAKEN IN THESE APPEALS ALSO WE HOLD ACCORDINGLY. 12. IN THE RESULT ALL THE APPEALS OF ASSESSEE STAN D ALLOWED. 13. IN COMBINE RESULT ALL THE FIVE APPEALS OF ASSESSEE ARE TREATED AS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 17/11/2017 SD/- SD/- ( ( !) ( !) (S.S.VISWANETHRA RAVI) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER *DKP SR.P.S * - 17/11/2017 / KOLKATA / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-SHRI RATAN KUMAR. PAUL THANA ROAD GANGA RMPUR DAKSHIN DINAJPUR PIIN-7 33124 2. ! /REVENUE-DCIT CC-XXVII AYAKAR BHAWAN PURVA 110 SHANTI PALLI E.M. BY-PASS KOLKATA- 107 3. - . / CONCERNED CIT 4. . - / CIT (A) 5. / ((- - / DR ITAT KOLKATA 6. 3 / GUARD FILE. /TRUE COPY/ BY ORDER/ SR. PRIVATE SECRETARY HEAD OF OFFICE/DDO -