Income Tax Appellate Tribunal - Cuttack
Prasant Kumar Das, Keonjhar vs Acit, Circle-1(1), Sambalpur on 21 April, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL,
CUTTACK BENCH, CUTTACK
BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER
AND KULDIP SINGH JUDICIAL MEMBER
ITA No.387/CTK /2016
Assessment Year :2009-2010
Sri Prasant Kumar Das, Vs. ACIT, Circle 1(1),
Barbil Basti, Ward No.6,
Barbil, Keonjhar. Sambalpur
PAN/GIR No. AAOPD 1277 G
(Appellant) .. ( Respondent)
Assessee by : Shri Nihar Ranjan Biswal, AR
Revenue by : Shri A.K.Mohapatra, CIT, DR
Date of Hearing : 18/04/ 2017
Date of Pronouncement : 21/04/ 2017
ORDER
Per N.S.Saini, AM
This is an appeal filed by the assessee against the order of CIT(A)- Cuttack, dated 25.5.2016, for the assessment year 2009-2010.
2. The sole issue involved in this appeal is that the ld CIT(A) erred in confirming the levy of penalty of Rs.5,76,760/- u/s.271(1)(c) of the Act.
3. The brief facts of the case are that the assessee filed return of income at Rs.44,28,220/-. The assessment was completed u/s.143(3) of the Act at Rs.67,26,540/- by mentioning that an addition of Rs.11,76,436/- on 2 ITA No. 387/CT K/ 2016 Asse ssment Year :20 09- 201 0 account of negative cash balance on different dates and bogus expenditure of Rs.11,26,879/- u/s.69C of the Act.
4. On appeal, the CIT(A) was satisfied with the evidence regarding expenditure made and allowed relief of Rs.3,75,783/- to the assessee and after appeal effect, the addition made by the Assessing Officer was reduced to Rs.19,22,532/-. Thereafter, the Assessing Officer levied penalty u/s.271(1)(c) of the Act at Rs.5,76,759/- by treating the amount of Rs.19,22,532/- as deliberate suppression of his income.
5. On appeal, the CIT(A) observed that the Tribunal on an appeal by the assessee against the order of the CIT(A) reduced the addition by Rs.11,93,144/- and, therefore, addition u/s.68 of the Act was Rs.6,97,793/-, u/s.69C of the Act was Rs.14,216 and Rs.17,379/- which came to Rs.7,29,388/-. Hence, the CIT(A) directed the Assessing Officer to levy penalty u/s.271(1)(c) of the Act on the amount of Rs.7,29,388/- and partly allowed the appeal of the assessee.
6. At the outset, ld Authorised Representative of the assessee filed before us a copy of notice issued u/s.271(1)(c) of the Act dated 28.12.2011, copy of which is placed on record and pointed out therefrom that in the said notice, the Assessing Officer has stated as under:
"Whereas in the course of proceedings before me for the assessment year 2009-10, it appears to me that you:-
have concealed the particulars of your income........ For the above assessment year and furnished inaccurate particulars of such income."3
ITA No. 387/CT K/ 2016 Asse ssment Year :20 09- 201 0
7. He submitted that the Hon'ble Supreme Court in the case of CIT vs. SSA's. Emarld Meadows dated 11th January, 2017 passed in Special Leave to Appeal (CC No.11485/2016) has held that Omission by the AO to explicitly specify in the penalty notice as to whether penalty proceedings are being initiated for furnishing of inaccurate particulars or for concealment of income makes the penalty order liable for cancellation. Hence, he submitted that the order dated 26.12.2013 levying penalty of Rs.5,76,760/- imposed by the Assessing Officer u/s.271(1)(c) is, therefore, liable to be cancelled.
8. The Departmental Representative except relying on the orders of lower authorities could not controvert the above submission of ld Authorised Representative of the assessee.
9. We find that the facts in the present appeal are not in dispute and the Assessing Officer in the notice u/s.271(1)(c) dated 28.12.2011 has stated as under:
"Whereas in the course of proceedings before me for the assessment year 2009-10, it appears to me that you:-
have concealed the particulars of your income........ For the above assessment year and furnished inaccurate particulars of such income."
10. The facts of the present appeal are identical to the facts of the case before the Hon'ble Supreme Court in the case of SSA's. Emarld Meadows(supra) and, therefore, the decision of Hon'ble Supreme Court squarely applies to the case of the assessee. Hence, respectfully following 4 ITA No. 387/CT K/ 2016 Asse ssment Year :20 09- 201 0 the same, I cancel the order of the Assessing Officer dated 26.12.2013 levying penalty of Rs.5,76,760/- u/s.271(1)(c) and allow the ground of appeal of the assessee.
11. In the result, the appeal filed by the assessee is allowed.
Order pronounced in the open court on 21 /04/2017 in the presence of parties.
Sd/- sd/-
(Kuldip Singh) (N.S Saini)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Cuttack; Dated 21 /04/2017
B.K.Parida, SPS
Copy of the Order forwarded to :
1. The Appellant : Sri Prasant Kumar Das,
Barbil Basti, Ward No.6, Barbil, Keonjhar
2. The Respondent. ACIT, Circle 1(1), Sambalpur
3. The CIT(A) Cuttack
4. Pr.CIT, Cuttack
5. DR, ITAT, Cuttack
6. Guard file. BY ORDER, //True Copy// SR.PRIVATE SECRETARY ITAT, Cuttack