Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, “A”, BENCH KOLKATA
Before: SHRI N.V. Vasudevan, JM & DR. A.L.SAINI, AM
IN THE INCOME TAX APPELLATE TRIBUNAL “A”, BENCH KOLKATA BEFORE SHRI N.V. Vasudevan, JM & DR. A.L.SAINI, AM आयकर अपील सं./ITA No.2124/Kol/2014 (�नधा�रण वष� / Assessment Year :2009-2010) Md. Shamsad Alam, Vs. The ITO, Ward-53(1), (Proprietor of : M/s 2, Gariahat Road (S) M.S.Drum Suppliers), Kolkata-700068 25/6/F, AM Ghosh Road, Budge Budge, 24 Parganas (S), Kolkata-700137 �थायी लेखा सं./जीआइआर सं./PAN/GIR No. : AFTPA 5230 L .. (अपीलाथ� /Appellant) (��यथ� / Respondent) �नधा�रती क� ओर से /Assessee by : Shri Nirmal Kaushik, FCA राज�व क� ओर से /Revenue by : Shri Saurabh Kumar Addl.CIT(DR) सुनवाई क� तार�ख / Date of Hearing : 11/04/2017 घोषणा क� तार�ख/Date of Pronouncement 19/04/2017 आदेश / O R D E R Per Dr. Arjun Lal Saini, AM: The captioned appeal filed by the Assessee, pertaining to the assessment year 2009-2010, is directed against the order passed by the ld. Commissioner of Income Tax (Appeals)-XXXIII, Kolkata, in Appeal No.49/CIT(A)-XXXIII/ITO Ward53(1)/Kol/12-13, dated 17.09.2014, which in turn arises out of an order passed by the Assessing Officer u/s.143(3) of the Income Tax Act 1961, (hereinafter referred to as the ‘Act’), dated 27/12/2011. 2. Brief facts of the case qua the assessee are that the assessee filed his return of income for the assessment year 2009-10 on 30.09.2009 disclosing total income of Rs.1,93,600/-. The return of assessee was processed u/s.143(1) of the I.T. Act. Later on, the assessee’s case was selected under scrutiny u/s.143(3) of the Act and the AO completed the
2 ITA No.2124/Kol/2014 Md. Shamsad Alam
assessment by making addition of Rs.1,30,125/- on account of
depreciation on Tanker, Rs.1,33,737/-on account of discrepancies in Loan
& Advances, Rs.2,87,105/-on account of interest paid for Tanker
purchase, Rs.1,23,876/-on account of Tanker hire charges, and
Rs.51,650/- on account of car maintenance. While making the
assessment, the AO observed that assessee has claimed Car
maintenance expenses whereas there was no motor car in the asset side
of the Balance Sheet of the assessee. The AO also observed some bogus
expenses claimed by the assessee therefore, the AO levied the penalty
U/s 271(1) (c ) of the Act.
Not being satisfied with the penalty order passed by the AO, the
assessee filed an appeal before the ld CIT(A), who has confirmed the
penalty imposed by AO under section 271(1) (c) of the Act. The ld CIT(A)
observed that assessee was not guilty of furnishing any inaccurate
particulars of income on concealing income in so far as the additions on
account of discrepancy of Rs.1,33,737/- in the loan amount, interest of
Rs.2,87,105/- not debited to the profit and loss account and addition of
Rs. 1,30,161/- on account of expenditure treated as revenue expenditure
by the Assessing Officer are concerned. Therefore ld CIT(A) directed the
AO to delete the penalty U/s 271(1) (c ) of the Act, in respect of these
additions. However, the ld CIT(A) confirmed the penalty in respect of
additions of Rs.1,23,876/- on account of understatement of Tanker hire
charges and Rs. 51,650 on account of bogus claim of Car maintenance
expenses.
3 ITA No.2124/Kol/2014 Md. Shamsad Alam
Not being satisfied with the order of ld. CIT(A), the assessee is in
further appeal before us and has taken the following grounds of appeal :-
For that on the facts and circumstances of the case the ld. Commissioner of Income Tax (Appeals) erred in confirming penalty under section 271 (1) (c ) imposed by ld. Income Tax Officer in respect of addition of Rs.1,23,876/-understatement of tanker hire charges and Rs.51,650/- claim of car maintenance expenses.
Ld. AR for the assessee has submitted, before us, stating that at
the out set notice issued by the Assessing Officer U/s 271(1) (c ) of the
Act is defective. The said notice does not speak about any specific charge
for which the penalty on the assessee is to be levied. It is not clear as to
whether the assessee is being penalized for the concealment of income
or for the furnishing of inaccurate particulars of income. The Assessing
Officer did not strike off the irrelevant portion in the notice, therefore it is
not clear for which particular default the assessee is being penalized. The
ld AR for the assessee has relied on the judgment of Hon`ble Karanataka
High Court in the case of Manjunatha Cotton & Ginning Mills 359 ITR 565
(Karnataka), wherein it was held that notice under section 271(1) (c ) of
the Act, should specifically state as to whether penalty is being imposed
for concealment of income or for furnishing inaccurate particulars of
income and as was followed by the Kolkata tribunal in the case of
“Suvaprasanana Bhattacharya Vs. ACIT, ITA No. 1303/K/2010, dated
6.11.2015, Kolkata. Therefore, penalty U/s 271 (1) (c ) should not be
levied.
4 ITA No.2124/Kol/2014 Md. Shamsad Alam
Ld. DR for the Revenue has primarily relied on the findings of the
AO, which we have already noted in our earlier para and is not being
repeated for the sake of brevity.
Having heard the submissions of ld AR for the assessee and
perused the material available on records, we are of the view that notice
issued by the AO under section 271(1) (c ) of the Act is defective. The
notice under section 271 (1) (c ) of the Act, should specifically state as to
whether penalty is being imposed for concealment of income or for
furnishing inaccurate particulars of income. There is no any specific
charge on the assessee in the case under consideration therefore the
penalty imposed by the AO and confirmed by the ld CIT(A) needs to be
deleted. Accordingly, we delete the penalty.
In the result, the appeal filed by the assessee, is allowed.
Order pronounced in the open court on this 19/04/2017.
Sd/- Sd/- (N.V. Vasudevan) (DR. A.L.SAINI) �या�यक सद�य / JUDICIAL MEMBER लेखा सद�य / ACCOUNTANT MEMBER कोलकाता /Kolkata; �दनांक Dated 19/04/2017 �काश �म�ा/Prakash Mishra,Sr.PS. आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant- Md. Shamsad Alam 2. ��यथ� / The Respondent.-ITO, Wd-53(1), Kolkata 3. आयकर आयु�त(अपील) / The CIT(A), Kolkata. 4. आयकर आयु�त / CIT 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, कोलकाता / DR, ITAT, Kolkata 6. गाड� फाईल / Guard file. स�या�पत ��त //True Copy// आदेशानुसार/ BY ORDER,
उप/सहायक पंजीकार (Asstt. Registrar) आयकर अपील�य अ�धकरण, कोलकाता / ITAT, Kolkata