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Income Tax Appellate Tribunal, KOLKATA ‘D’ BENCH, KOLKATA
Before: Sri J. Sudhakar Reddy, Hon’ble & Sri S.S. Viswanethra Ravi, Hon’ble]
IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA ‘D’ BENCH, KOLKATA [Before Sri J. Sudhakar Reddy, Hon’ble Accountant Member & Sri S.S. Viswanethra Ravi, Hon’ble Judicial Member]
I.T.A. No. 497/Kol/2015 Assessment Year: 2005-06 I.T.A. No. 206/Kol/2015 Assessment Year: 2005-06 I.T.A. No. 207/Kol/2015 Assessment Year: 2005-06
Sri Surendra Kumar Sharma………………………………………………………………….…..…. Appellant Prop: Shekhawati Rajasthan Roadways Main Gate P.O. Durgapur – 713 203 Dist. Burdwan (WB) [PAN: ACGPA 1496 G Income Tax Officer, Ward 1(4), Asansol…….……………………………………………....Respondent Sahana Apartment Lower Chelidanga PO: Asansol – 713 304 Dist: Burdwan (WB) Appearances by: Shri V.N. Purohit, FCA, appeared on behalf of the assessee. Shri Arindam Bhattacharya, Addl. CIT, DR appearing on behalf of the Revenue. Date of concluding the hearing : December 12th, 2017 Date of pronouncing the order : December 21st, 2017
O R D E R Per Bench :-
These three appeals are filed by the same assessee. As they are passed under different Sections of the Income Tax Act, 1961 (hereinafter the ‘Act’), we adjudicate them separately, though by way of this common order.
I.T.A. No. 206/Kol/2015, is against the order of the ld. Commissioner of Income Tax (Appeals)-Asansol (hereinafter the ‘ld. CIT(A)’), wherein he refused to condone the delay in filing of the appeal. The assessee’s contention is that the Assessing Officer asked the assessee to sign a blank acknowledgement slip and
2 I.T.A. No. 497/Kol/2015 Assessment Year: 2005-06 I.T.A. No. 206/Kol/2015 Assessment Year: 2005-06 I.T.A. No. 207/Kol/2015 Assessment Year: 2005-06 Sri Surendra Kumar Sharma thereafter the Assessing Officer incorporated the date of 31/12/2009, as the date of service, though the assessee actually received the assessment order on 26/07/2010. The ld. CIT(A) disbelieved the same and held that filing of the appeal on 06/08/2010 by the assessee, after receiving the order on 31/12/2009, is beyond limitation and the assessee could not properly explain the same. He pointed out that the acknowledgement slip was a computer printed one and there was no scope of the Assessing Officer super imposing anything and under these circumstances, the contention of the assessee cannot be believed.
2.1. The assessee filed an affidavit dt. 2nd February, 2015, wherein all these contentions have been stated. Such sworn affidavit cannot be taken in a loud manner and it has to be controverted with evidence.
We are of the view that this issue should be set aside to the file of the ld. CIT(A), for fresh consideration for the following reasons:- a) As pointed out by the ld. Counsel for the assessee, normal tear off acknowledgement slips are not pre-typed but are generally printed and the blanks are filled in by the Assessing Officer. b) Normally, the dispatch section of the office serves the assessment order on the assessee and whereas in this case, the assessee claims that the Assessing Officer himself has served the notice.
Accordingly, we direct the ld. CIT(A) to enquire into this issue raised by examining the dispatch register, the demand register and also whether the Assessing Officer has obtained similar pre-typed tear off acknowledgement slips from other assessee of his charge. He also may conduct any further enquiry as he may deem fit.
In the result, this appeal of the assessee is allowed for statistical purposes.
Now we take up, ITA No. 497/Kol/2015. At the outset we find that there is a delay of 536 days in filing of this appeal. After examining the petition for
3 I.T.A. No. 497/Kol/2015 Assessment Year: 2005-06 I.T.A. No. 206/Kol/2015 Assessment Year: 2005-06 I.T.A. No. 207/Kol/2015 Assessment Year: 2005-06 Sri Surendra Kumar Sharma condonation, we find that the assessee was prevented by sufficient cause from appearing before the Tribunal. Hence we condone the delay and admit this appeal.
6.1. The ld. CIT(A), has confirmed the penalty u/s 271A of the Act, on the ground that he assessee did not maintain books of accounts as specified in Rule 6F of the Income Tax Rules, 1962 (hereinafter the ‘Rules’). A perusal of Rule 6F of the Rules demonstrates that this does not apply to the assessee, who is a transport commission agent. Hence on this ground, this penalty has to be cancelled. Morever, the Assessing Officer at page 3 of his order records that the ld. Counsel for the assessee has produced printed cash book and ledger before him, even a tax audit report has been filed with a return. Merely, because the Assessing Officer is of the opinion that the books of accounts are not reliable, the question of the levy of penalty u/s 271A of the Act, does not arise.
Hence, for these reasons, we quash the penalty levied on the assessee and allow this appeal.
ITA No. 206/Kol/2015. The sole issue is against the levy of penalty u/s 271(1)(c) of the Act. A perusal of the notice issue for levy of penalty u/s 271(1)(c) of the Act, demonstrates that the charge has not been specified by striking off the inapplicable portions of the notice. Thus, we deem it fit and proper to quash this levy of penalty u/s 271(1)(c) of the Act.
In the result, appeal of the assessee is allowed in part.
Kolkata, the 21st day of December, 2017. Sd/- Sd/- [S. S. Viswanethra Ravi] [J. Sudhakar Reddy] Judicial Member Accountant Member Dated : 21.12.2017 {SC SPS}
4 I.T.A. No. 497/Kol/2015 Assessment Year: 2005-06 I.T.A. No. 206/Kol/2015 Assessment Year: 2005-06 I.T.A. No. 207/Kol/2015 Assessment Year: 2005-06 Sri Surendra Kumar Sharma
Copy of the order forwarded to: 1. Sri Surendra Kumar Sharma Prop: Shekhawati Rajasthan Roadways Main Gate P.O. Durgapur – 713 203 Dist. Burdwan (WB) 2. Income Tax Officer, Ward 1(4), Asansol Sahana Apartment Lower Chelidanga PO: Asansol – 713 304 Dist: Burdwan (WB)
CIT(A)- 4. CIT- , 5. CIT(DR), Kolkata Benches, Kolkata.