MADAN MOHAN SAHA,KOLKATA vs. I.T.O WD - 38(2),KOLKATA., KOLKATA

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ITA 240/KOL/2013Status: DisposedITAT Kolkata16 September 2015AY 2008-094 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal found that the CIT(A)'s order was non-speaking and that the assessee was not granted a reasonable opportunity of hearing. Therefore, the matter was restored to the CIT(A) for a fresh decision.

What were the facts?

The assessee's income tax return for AY 2008-09 was subjected to scrutiny assessment, resulting in additions of Rs. 3,03,138/-. Subsequently, a penalty under Section 271(1)(c) was imposed, which was confirmed by the CIT(A).

What were the issues?

Whether the penalty under Section 271(1)(c) was rightly imposed and whether the assessee was granted a proper opportunity of hearing by the appellate authority.

Which sections of the Income-tax Act were involved?

Section 271(1)(c),Section 68,Section 143(3)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, BENCH ‘B’ KOLKATA

Before: Hon’ble Shri Mahavir Singh, JM & Shri Waseem Ahmed, AM ]

ORDER

Per Shri Waseem Ahmed, AM

1.

This appeal of the assessee arises out of the order of ld.CIT(A)-XXIV, Kolkata in Appeal No.865/CIT(A)-XXIV/38(2)/11-12 dated 28.09.2012 for A.Y.2008-09. Assessment was framed by ITO, Ward-38(2), Kolkata u/s 143(3) of the Income tax Act, 1961 (hereinafter referred to as the ‘Act ‘) vide order dated 09.12.2010.

2.

The issue raised by the assessee in this appeal is that the ld.CIT(A) has erred in confirming the order of the ld. AO for imposition of penalty u/s 271(1)(c) of the Act.

3.

Briefly stated facts are that the assessee is an individual, senior citizen and has income under the head ‘Business’ and from other sources. The assessee files its return of income for A.Y.2008-09 declaring the total income of Rs.4,14,510/-. Notice u/s 143(2) was issued by the ld. AO for framing the scrutiny assessment and ultimately after considering the submissions of the assessee, the assessment order was passed on 09.12.2010. After making certain addition/disallowances amounting to Rs.3,03,138/- only. The summary of the additions/disallowances stand as under :-

Madan Mohan Saha A..Y.2008-09 “Concealed/undisclosed interest income earned On RIP with Indian Bank 40238/- Understatement of assets (RIP with Indian Bank) 17324/- Concealed/undisclosed interest income Earned on deposits with HDFC bank ` 5053/- Deposits with HDFC bank treated as Unexplained cash credit u/s 68 205000/- Gift from Sampa Saha treated as Unexplained cash credit u/s 68 35523/- “ However, the ld. AO initiated penalty u/s 271(1)(c) of the Act and recorded the same at the time of assessment order. During the penalty proceedings the assesee pleaded that he is an old man aged 78 years and suffering from high tension and the non- disclosure of the above facts in his return of income were due to negligence of the accountant. However, AO neglected the plea of the assessee and passed a penalty order on 04.04.2011, imposing minimum penalty @100% of the tax sought to be evaded which amounts to Rs.93,669/-.

Aggrieved, the assessee preferred appeal before the ld. CIT(A), who has upheld the action of the ld. AO without adducing any reason thereon.

Aggrieved, the assessee is now in appeal before us and raised the following grounds of appeal :- “1. That the penalty order passed is bad in law as no reasonable opportunity of hearing was granted to the appellant.

2. That the penalty order, having failed to bring about any positive evidence of concealment of income suffers from infirmity and should be cancelled.

3. That the Ld. CIT(Appeal) has erred in facts and law in sustaining the order of lower authority on the sole ground that quantum proceedings has not been challenged.

4. That the Appellant reserves right to raise additional ground at the time of hearing.”

4.

Shri K.M.Roy, FCA, the ld. AR appeared on behalf of the assessee and Shri Alok Kr.Nag, JCIT, Sr.DR, the ld. DR appeared on behalf of the revenue.

5.

The ld. AR of the assessee submitted that the assessee had not deliberately or intentionally concealed any particulars of his income in his income tax return. However, the accountant has neglected to declare certain facts in the return of income

Madan Mohan Saha A..Y.2008-09 and the ld. AR submitted that no reasonable opportunity of hearing was granted to the appellant before the ld. CIT(A).

6.

The ld. DR relied on the orders of the lower authorities.

7.

We have heard the rival submissions and perused the materials available on record. At the outset it has been noticed that the order passed by the CIT(A) is non- speaking order and the reasonable opportunity has also not been granted to the assessee. In view of the above facts and circumstances and in the interest of justice, we deem it fit to restore the matter to the file of the ld. CIT(A) with the direction to verify the submissions of the ld. AR and pass a speaking order in accordance with law.

8.

In the result the appeal of the assessee is allowed for statistical purposes.

Order pronounced in the court on 16.09.2015.

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