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Income Tax Appellate Tribunal - Gauhati

Pabitra Boro, Tangla vs Income Tax Officer, Ward-Mangaldai, ... on 9 June, 2023

     IN THE INCOME TAX APPELLATE TRIBUNAL GAUHATI BENCH
                 VIRTUAL HEARING AT KOLKATA

          BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER
         AND SHRI GIRISH AGRAWAL, ACCOUNTANT MEMBER

                         ITA No.23/GTY/2022
                       Assessment Year: 2012-13


     Pabitra Boro                    Income-tax Officer, Ward -
     Babupara, Ward-03, P.O.         Mangaldai.
                                 Vs.
     Tangla,   district Udalguri
     (BTAD), Assam - 784521.
     (PAN:AEIPD1877Q)
           (Appellant)                 (Respondent)


      Present for:

      Appellant by     : Shri Manoj Nahata, FCA
      Respondent by    : Shri N. T. Sherpa, JCIT

      Date of Hearing             :   06.06.2023
      Date of Pronouncement       :   09.06.2023

                                ORDER

PER GIRISH AGRAWAL, ACCOUNTANT MEMBER:

This appeal filed by the assessee is against the penalty order passed by Ld. CIT(A), Guwahati-1, Guwahati vide Appeal No. Mangal- 2/15-16/214 dated 24.09.2020 u/s. 271(1)(c) of the Income-tax Act, 1961 (hereinafter referred to as the "Act") for AY 2012-13.

2. The moot point raised in this appeal is on imposition of penalty of Rs.3,17,04,016/- u/s. 271(1)(c) of the Act when the assessment in relation to which penalty has been imposed has been set aside by the Coordinate Bench of ITAT, Gauhati in the quantum appeal of the assessee in ITA No. 56/GTY/2022 dated 08.11.2021.

Pabitra Boro, AY: 2012-13

3. Brief facts of the case are that the assessee was assessed u/s. 143(3) on 13.03.2015 wherein the assessee was directed to substantiate the exemption claime d u/s. 10(26). The assessee is state d to be Scheduled Tribe, resident of Tangla Town under Harisinga reve nue circle, P. S. Tangla in the district of Udalguri of Bodoland Territorial Council, Assam and is stated to be engaged in civil contract work and sale/supply business. Assessment u/s. 143(3) of the Act was completed by making an addition of Rs.17,42,310/- as income from other sources outside the purview of section 10(26) of the Act. Asse ssee went in appeal before the Ld. CIT(A) which was dismissed and the assessed income was enhanced by the Ld. CIT(A) by an amount of Rs.10,30,95,325/- by treating the purported claim of exempt income as bogus. Thereafter, penalty proceedings were initiated u/s. 271(1)(c) and a penalty of Rs.3,17,04,016/- was imposed u/s. 271(1)(c) of the Act.

4. Against the order of Ld. CIT(A) in relation to assessme nt including enhancement of income, assessee went in appeal before the Tribunal in ITA No. 56/Gau/2020. The Coordinate Be nch of ITAT pronounced its decision on 08.11.2021 where by the order was set aside, restoring the matter back to the file of Ld. AO for fre sh adjudication. The relevant finding given by the Coordinate Bench is reproduced as under:

"Keep ing in v ie w the submissions made by the Ld. AR and documen ts placed bef ore us in the paper book we f ind the impug ned order is no t sus tainable since the tu r nover could no t be cons idered to be assessee's in come. Theref ore, we dee m it f it to se t as ide the impugned order & res tore the matter back to the f ile of the Ld. AO f or f resh ad judic ation with a direc tion to the assessee to subs tan tia te its c laim with s atisf ac tor y docu me ntar y ev id ences."

Pabitra Boro, AY: 2012-13

5. Conse quent to this direction by the Coordinate Bench, an appeal effect giving order of assessment u/s. 143(3) re ad with sec. 254 was passe d by the Ld. AO dated 31.03.2023 wherein the total income is assessed at Rs.25,77,380/-. The demand raised by way of this assessment has been paid by the assessee. Considering the above facts on record, the very basis on which the impugned penalty has been impose d has been set aside by the Coordinate Bench, rendering this impugned order of penalty infructuous, by virtue of de novo assessment directed to be completed by the Ld. AO which also has been done as noted above. Accordingly, we dismiss this prese nt appeal as infructuous.

6. In the result, appeal of the asse ssee is dismissed as infructuous.

Order pronounce d in the open Court on 9th June, 2023.

       Sd/-                                          Sd/-
      (Sanjay Garg)                               (Girish Agrawal)
     Judicial Member                             Accountant Member
Dated:      9th June, 2023
JD, Sr. P.S.
Copy to:
     1. The Appellant:
     2. The Respondent
     3. CIT(A), Guwahati-1, Guwahati
     4. CIT,
     5. DR, ITAT, Gauhati Bench, Gauhati
     6. Guard file
     //True Copy//

                                                          By Order


                                                 Assistant Registrar
                                           ITAT, Kolkata Benches, Kolkata