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Income Tax Appellate Tribunal, CUTTACK BENCH, CUTTACK
Before: S/SHRI N.S SAINI & PAVAN KUMAR GADALE
IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK
BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER
ITA No.193/CTK/2012 Assessment Year : 2006-07
Biswa Ranjan Patnaik, Qr. Vs. ITO, Ward-1, Dhenkanal No.B/571, Nalco Nagar, Angul. PAN/GIR No. ACUPP 0169 M (Appellant) .. ( Respondent)
Assessee by : Shri B.R.Panda, AR Revenue by : Shri D.K.Pradhan, DR
Date of Hearing : 17/05/ 2017 Date of Pronouncement : 17 /05/ 2017
O R D E R Per Pavan Kumar Gadale, JM This is an appeal filed by the assessee against the order of CIT(A)-1,
Bhubaneswar, dated 11.1.2012, for the assessment year 2006-07.
The only substantive ground raised by the assessee in this appeal is
that the CIT(A) erred in confirming the action of the Assessing Officer in
levying penalty of Rs.29,280/- u/s. 271(1)(c) of the Income tax Act, 1961.
At the outset, ld A.R. of the assessee has filed additional ground.
However, he did not press the additional ground and made an endorsement
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to this effect. Therefore, we dismiss the additional ground of appeal of the
assessee.
Brief facts of the case are that the assessee is a salaried employee
and filed his return of income for the assessment year 2006-07 on
30.10.2006 disclosing total income of Rs.2,33,280/-. The return was
processed on 21.11.2006 and refund of Rs.29,320/- was issued. On
perusal of the assessment record, the Assessing Officer found that the
assessee has concealed particulars of income and issued notice u/s.148 of
the Act. In compliance to the said notice, the assessee filed return of
income disclosing the same as filed in the original return of income. At the
request of the assessee, the reasons recorded for reopening the
assessment were furnished and the assessee filed written objection to the
reopening of assessment and the same was rejected by the Assessing
Officer on 8.12.2009. Subsequently, the Assessing Officer issued notice
u/s.142(1) calling for the information. The assessee could not file
information within the time granted. Therefore, the Assessing Officer
rejected the petition and completed the assessment on the basis of
materials available on record as the assessment was getting time barred.
The Assessing Officer observed that during the year under
consideration, in the computation of income, the assessee has disclosed
income from house property and also claimed depreciation of building let
out and treated the entire income as business income, whereas the
Assessing Officer on perusal of facts on record, observed that the assessee
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had obtained loan from the employer NALCO for construction of the building
and claimed deduction of interest on the borrowings. The Assessing Officer
observed that the assessee being a salaried employee cannot disclose the
rent from the let out building as business income and rightfully to be taxed
as income from house property and, accordingly, disallowed the claim and
assessed the total income at Rs.3,34,530/- in an assessment under section
143(3)/147 of the Act.
Subsequently, the Assessing Officer initiated the penalty proceedings
u/s.271(1)(c). The assessee filed explanation mentioning that the assessee
has challenged the reassessment proceedings before the Hon’ble High
Court of Orissa and, therefore, prayed for penalty to be kept in abeyance
whereas the penalty is barred by limitation before 30.6.2010. The
Assessing Officer based on the availability materials found that the
assessee has disclosed income under the head “business income” and
claimed depreciation, which according to the Assessing Officer, is an act of
submission of inaccurate particulars and concealment of income and,
accordingly, levied minimum penalty under section 271(1)(c) of
Rs.29,280/- by an order dated 28.6.2010.
On appeal, the CIT(A) confirmed the order of the Assessing Officer
levying penalty. Aggrieved by the order of the CIT(A), the assessee has
filed appeal before the Tribunal.
Ld A.R. of the assessee argued that the CIT(A) erred in confirming
the penalty irrespective of the fact that the addition of depreciation in the
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assessment proceedings u/s.143(3)/147 is accepted and the assessment
has not been contested by the assessee. Further, the assessee has
challenged the reopening of assessment before the Hon’ble High Court and
also to buy peace with the Income tax department, the assessee has not
taken up the matter in the higher forum and prayed for deletion of penalty.
Ld A.R. also relied on the decision Hon’ble Supreme Court in the case of
CIT vs. Reliance Petroproducts (P) Ltd.,322 ITR 158 (SC).
Contra, ld D.R. relied on the order of the CIT(A) and opposed the
grounds of appeal of the assessee.
We have heard the rival submissions and perused the orders of lower
authorities and materials available on record. The sole contention of ld A.R.
of the assessee is that the assessee has not concealed any income or
furnished inaccurate particulars of income whereas the assessee in the
computation of income, claimed depreciation against house property and
rental income and treated the same as business income. In the
reassessment proceedings, the assessee accepted the addition and to buy
peace with the Income tax Department and to avoid litigation, has not filed
any appeal. We also perused the penalty order where the Assessing Officer
has relied on the assessment order on the ground that the assessee has
claimed depreciation. We also found that prima facie, the Assessing Officer
has discretion power and has to consider the reasonable cause before
initiating the penalty proceedings. We are of the opinion that every addition
in the assessment cannot be a gateway for levy of penalty. There are
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various reasons for which the assessee prefer to not to file appeal with the
higher forum and to satisfy the income tax department, the assessee had
paid tax and interest thereon. We are of the opinion that the assessee has
satisfied the Assessing Officer with the explanation of reasonable cause and
also accepted the addition. We also support our decision relying on the
judicial decision of Hon’ble Karnataka High Court in the case of CIT
vs Manjunatha Cotton and Ginning Factory, reported in [2013] 359 ITR
565 (Kar), wherein, Their Lordships have held that penalty cannot be levied
on the addition in a general way and held as under:
“Merely because the assessee agreed for addition and the assessment order was passed on the basis of this addition, when the assessee had paid the tax and the interest thereon in the absence of any material on record to show the concealment of income, it could not be inferred that the addition was on account of concealment. Moreover, the assessee had offered an explanation. The explanation was not found to be false. On the contrary, it was held to be bonafide. The cancellation of penalty by the Tribunal was justified.” 11. Considering the apparent facts and materials on record and judicial
decision, we are inclined to set aside the order of the CIT(A) and direct the
Assessing Officer to delete the penalty of Rs.29,280/- levied under section
271(1)(c) of the Act.
In the result, the appeal filed by the assessee is allowed. Order pronounced in the open court on /05/2017 in the presence of parties.
(N.S Saini) (Pavan Kumar Gadale) ACCOUNTANT MEMBER JUDICIAL MEMBER Cuttack; Dated /05/2017 B.K.Parida, SPS
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Copy of the Order forwarded to : 1. The Appellant : Biswa Ranjan Patnaik, Qr. No.B/571, Nalco Nagar, Angul. 2. The Respondent. ITO, Ward-1, Dhenkanal 3. The CIT(A)-1, Bhubaneswar 4. Pr.CIT, Bhubanswar. 5. DR, ITAT, Cuttack 6. Guard file. //True Copy// BY ORDER,
SR.PRIVATE SECRETARY ITAT, Cuttack