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Income Tax Appellate Tribunal - Kolkata

I.T.O Wd - 30(1),Kolkata, Kolkata vs Shri Bhagwati Prasad Parasrampuria, ... on 6 September, 2017

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                                                                                          ITA No.70/Kol/2015
                                                                   Bhagwati Prasad Parasrampuria., AY 2009-10


                   आयकर अपील
य अधीकरण,  यायपीठ - "B" कोलकाता,
       IN THE INCOME TAX APPELLATE TRIBUNAL "B" BENCH: KOLKATA
     (सम )Before  ी ऐ. ट . वक
,  यायीक सद य एवं/and  ी एम. बालगनेश, लेखा सद य)
                  [Before Shri A. T. Varkey, JM & Shri M. Balaganesh, AM]

                                    I.T.A. No. 70/Kol/2015
                                   Assessment Year: 2009-10

Income-tax Officer, Wd-30(1), Kolkata        Vs.    Shri Bhagwati Prasad Parasrampuria
                                                    (PAN: AFKPP8883R)
Appellant                                           Respondent

            Date of Hearing                 28.08.2017
            Date of Pronouncement           06.09.2017
            For the Appellant               Shri Saurabh Kumar, Addl. CIT (DR)
            For the Respondent              Shri Rip Das, FCA

                                     ORDER
Per Shri A.T.Varkey, JM

This is an appeal filed by the revenue against the order of Ld. CIT(A)-XIV, Kolkata dated 21.10.2014 for AY 2009-10 deleting imposed by the AO u/s. 271(1)(c) of the Income- tax Act, 1961 (hereinafter referred to as the "Act").

2. At the outset itself, the Ld. Counsel for the assessee drew our attention to the notice u/s. 274 of the act r.w.s. 271 of the Act dated 17.11.2011 served on the assessee wherein we note that the AO has not struck down the limb of charge/default for which the penalty is being initiated against the assessee. We find that the notice has been issued for "having concealed the particulars of income" or "furnished inaccurate particulars of such income". We note that in a similar case, the Hon'ble High court of Karnataka in the case of CIT vs Manjunatha Cotton and Ginning Factory reported in (2013) 359 ITR 565 (Kar) has cancelled the penalty taking note of the fact that the penalty notice did not spell out clearly as to whether the assessee has concealed the particulars of income or has furnished inaccurate particulars of Income. We also find that Hon'ble Karnataka High Court in the case of CIT Vs. SSA's Emerald Meadows, reported in (2016) 73 taxmann.com 241 (Kar) endorsed the same view in Manjunatha Cotton and Ginning Factory (supra) and held as under:

Bhagwati Prasad Parasrampuria., AY 2009-10

"3. The Tribunal has allowed the appeal filed by the assessee holding the notice issued by the Assessing Officer under section 274 read with Section 271(1)(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(1)(c) of the Act, the 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 on the decision of the Division Bench of this Court rendered in the case of CIT Vs. Manjunatha Cotton & Ginning Factory (2013) 359 ITR 565/218 Taxman 423/35 taxmann.com 250(Kar).

4. In our view, since the matter is covered by judgment of the Division Bench of this Court, we are of the opinion, no substantial question of law arises in this appeal for determination by this Court. The appeal is accordingly dismissed."

We also find that the aforesaid order of the Hon'ble High Court was challenged by the department before the Hon'ble Supreme Court by preferring an SLP which has been dismissed which fact has been reported in CIT Vs. SSA's Emerald Meadows (2016) 73 taxmann.com 248 (SC).

4. We note that since the penalty notice issued to the assessee dated 17.11.2011 did not spell out as to which default the assessee has committed for which penalty u/s. 271(1)(c) of the Act has been initiated, therefore, respectfully following the Hon'ble Karnataka High Court's order in Manjunatha Cotton & Ginning Factory (supra) and SSA's Emerald Meadows (supra), we cancel the penalty imposed by the AO. We also find that the Ld. CIT(A) has rightly deleted the penalty by observing that provisions of sec. 271(1)(c) of the Act is attracted if the assessee conceals income or furnishes inaccurate particulars of income. According to him, no such instance has been found in this case. He therefore deleted the penalty by following the various judicial decisions cited in his order. Therefore, we affirm the view of the Ld. CIT(A) on the aforesaid view of the Hon'ble High Courts cited supra also and, therefore, appeal of the revenue is dismissed.

5. In the result, appeal of revenue is dismissed.

       Order is pronounced in the open court on 06.09.2017

     Sd/-                                                                      Sd/-
 (M. Balaganesh)                                                         (Aby. T. Varkey)
Accountant Member                                                        Judicial Member
                               Dated : 6th September, 2017

Jd.(Sr.P.S.)
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                                                                                   ITA No.70/Kol/2015
                                                            Bhagwati Prasad Parasrampuria., AY 2009-10



Copy of the order forwarded to:

1.     Appellant - ITO, Ward-30(1), Kolkata.

2     Respondent - Shri Bhagwati Prasad Parasrampuria, 22B, Garcha 1st Lane,
      1st floor, Kolkata-700 019.
3.    The CIT(A),         Kolkata
4.     CIT         , Kolkata
5.    DR, Kolkata Benches, Kolkata
              /True Copy,                          By order,

                                               Sr. Pvt. Secretary