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Income Tax Appellate Tribunal, “B”
Before: Shri Sanjay Garg & Shri Manish Borad
IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH KOLKATA Before Shri Sanjay Garg, Judicial Member and Shri Manish Borad, Accountant Member Assessment year: 2008-09 Prime Decor Laminate (P) Ltd (formerly known as M/s Balance Estate Pvt. Ltd.)…..............................……Appellant 9/12, Lal Bazar Street, 3rd Floor, Block-B, Room No.10, Kolkata-1. [PAN: AADCB3770E] vs. ITO, Ward-5(4), Kolkata........….…..…...................……........……...…..…..Respondent Appearances by: None appeared on behalf of the appellant. Shri Sudipta Guha, CIT-DR, appeared on behalf of the Respondent. Date of concluding the hearing : July 5, 2022 Date of pronouncing the order : July 5, 2022
ORDER
Per Sanjay Garg, Judicial Member:
The present appeal has been preferred by the assessee against the order dated 29.07.2016 of the Commissioner of Income Tax (Appeals)-6, Kolkata [hereinafter referred to as ‘CIT(A)’]. The assessee in this case has contested the levy of penalty u/s 271(1)(c) of the Income Tax Act (hereinafter referred to as the ‘Act’).
Notices of hearing have been issued upon the assessee several times but no one has ever put in appearance before this Tribunal also. In the notice for today’s hearing i.e. on 05.07.22 was also issued through RPAD which has been returned with endorsement of postal authority “left”. From the above facts, it is evident on the file that the assessee is no more interested in prosecuting the proceeding, therefore, we proceed to decide on merits after hearing the ld. DR and gone through the record.
The brief facts of the case are that in the original return of income for the assessment year under consideration, the assessee declared a total income of Rs.1211/-. The return was originally processed u/s 143(1) of the Act. Thereafter reassessment was carried out by the Assessing Officer u/s 147 of the Act and the income of the assessee
Assessment year: 2008-09 Prime Decor Laminate (P) Ltd was determined at Rs.14,750/-. Subsequently, the ld. CIT(A), Kolkata exercised his revision jurisdiction u/s 263 of the Act and noted that during the assessment proceedings, the Assessing Officer has not verified genuineness and source of the share capital and share premium as well as identity and creditworthiness of the share subscribers. He, therefore, held the assessment order dated 26.04.2010 passed u/s 147 of the Act was erroneous and prejudicial to the interest of Revenue and restored the matter to the Assessing Officer for assessment afresh. Thereafter in the fresh assessment proceedings, the Assessing Officer held that the assessee had failed to prove the identity and creditworthiness of the shareholders as well as genuineness of the transaction. He, therefore, treated the share application money of Rs.11,33,00,000/- including share premium of Rs.11,04,67,500/- as income from undisclosed sources of the assessee and added the same into the income of the assessee invoking provision of section 68 of the Act. The Assessing Officer also initiated the penalty proceedings u/s 271(1)(c) of the Act against the assessee for concealing the particulars of income and for furnishing inaccurate particulars of income. In the penalty proceedings, none appeared on behalf of the assessee and the Assessing Officer held that the assessee had failed to show any reasonable cause for the failure on its part to report its true and correct profit. He held that the assessee had furnished inaccurate particulars of income and also concealed its income. He, accordingly, levied the impugned penalty of Rs.3,85,11,127/-.
Being aggrieved by the said order of the Assessing Officer, the assessee preferred appeal before the CIT(A). Despite affording several opportunities to the assessee, no submissions were advanced before the CIT(A) on behalf of the assessee, the ld. CIT(A), therefore, upheld the penalty so levied by the Assessing Officer. The assessee thus has come in appeal before this Tribunal.
5. The ld. DR has submitted that even in the appeal relating to the quantum additions, no one had appeared on behalf of the assessee before the CIT(A) in the appellate proceedings and, therefore, the quantum additions had been confirmed by the CIT(A). Thereafter the ld. CIT(A) confirmed the penalty levied by the Assessing Officer. He has further submitted that the only issue raised by the assessee in this appeal is that the Assessing Officer had failed to specify the limb on which the penalty proceedings was 2
Assessment year: 2008-09 Prime Decor Laminate (P) Ltd sought to be initiated and the penalty has been imposed on both the limbs. The ld. DR has submitted that in this case both the limbs were applicable as the assessee had furnished particulars of income by showing receipts of bogus share capital and share premium in its accounts and it also concealed its income by introducing its own income as share capital and premium.
We have considered the above submissions of the ld. DR and gone through the record. A perusal of the concluding part of the assessment order reveals that the Assessing Officer, in this case, has initiated the penalty proceedings u/s 271(1)(c) of the Act on both limbs i.e. for concealing particulars of income and furnishing inaccurate particulars of income. We agree with the contentions of the ld. DR that in such cases both the limbs i.e. furnishing of inaccurate particulars of income and concealment of income overlap each other. The Assessing Officer, in this case, has specifically mentioned that the penalty proceedings are initiated under both the limbs. All the facts relating to the share application money and share premium and that being not genuine transaction and the identity and creditworthiness of the share subscribers being not proved have been duly discussed in the assessment order and based on the aforesaid facts, the penalty proceedings have been initiated. It is not a case where the assessee was not aware of the facts of the case or the charge upon which the penalty proceedings have been initiated. The assessee neither come forward with any explanation during the penalty proceedings u/s 271(1)(c) of the Act nor during the appellate proceedings before the CIT(A). Even the assessee has failed to attend the proceedings before this Tribunal and no explanation has been put forth by the assessee in this case. In view of this, we do not find any merit in this appeal and the same is accordingly hereby dismissed.