Calcutta High Court
Principal Commissioner Of Income ... vs Smt. Jayashree Jayakar Mohanka on 31 October, 2022
OD-22
IN THE HIGH COURT AT CALCUTTA
SPECIAL JURISDICTION (INCOME TAX)
ORIGINAL SIDE
ITAT/168/2022
IA No.: GA/1/2022, GA/2/2022
PRINCIPAL COMMISSIONER OF INCOME TAX, CENTRAL-2, KOLKATA
VS.
SMT. JAYASHREE JAYAKAR MOHANKA
BEFORE :
THE HON'BLE JUSTICE T.S. SIVAGNANAM
And
THE HON'BLE JUSTICE HIRANMAY BHATTACHARYYA
Date : 31st October, 2022
Appearance :
Mr. Prithu Dudhoria, Adv.
... for appellant
Mr. Pratyush Jhunjhunwalla, Adv.
... for respondent
The Court : We have heard Mr. Prithu Dudhoria, learned standing Counsel
appearing for the appellant/revenue and Mr. Pratyush Jhunjhunwalla, learned
Counsel for the respondent/assessee.
There is a delay of 1132 days in filing the appeal. Though there is no
proper explanation given by the revenue for the inordinate delay in filing the
appeal, since we are inclined to consider as to whether substantial questions of
law arise for consideration in this appeal we exercise discretion and accordingly
condone the delay in filing the appeal. The application being GA/1/2022 is
allowed.
ITAT/168/2022
This appeal filed by the revenue under Section 260A of the Income Tax
Act, 1961 (the Act, for brevity) is directed against the order dated 11th February,
2019, passed by the Income Tax Appellate Tribunal, Kolkata "D" Bench, Kolkata
passed on 6.12.2019 in C.O. Nos.82/Kol/2018 in I.T.A. Nos. 1344/Kol/2018 for
the assessment year 2005-06.
The revenue has raised the following substantial questions of law for
consideration :-
i) Whether on the facts and circumstances of the case the Income Tax
Appellate Tribunal is right in law and fact in cancelling the penalty levied
under section 271(1)(c) of the Income Tax Act, 1961 ?
ii) Whether on the facts and circumstances of the case the Income Tax
Appellate Tribunal is right in law and fact in holding that the notices
under section 274 of the Income Tax Act, 1961 are not in accordance with
law ?
We have heard Mr. Prithu Dudhoria, learned standing Counsel appearing
for the appellant/revenue and Mr. Pratyush Jhunjhunwalla, learned Counsel for
the respondent/assessee.
The order passed by the learned Tribunal has to be confirmed for two
reasons, firstly, the order of assessment, which was subject matter of challenge
before this Court at the instance of the revenue in the case of Principal
Commissioner of Income Tax Central-2, Kolkata vs. Jayashree Jayakar
Mohankar in ITAT 75 of 2022, was dismissed by judgment dated 25th July,
2022. If that be the case, whether it would automatically result in setting aside
the order of penalty imposed on the assessee. This issue was considered and
answered by the Hon'ble Supreme Court in the case of K.C. Builders & Anr. vs.
Assistant Commissioner of Income Tax, (2004) 265 ITR 562, wherein the Hon'ble
Supreme Court held that where additions made in the assessment order on the
basis of which penalty for concealment was levied, are deleted, there remains no
basis at all for levying the penalty for concealment and therefore in such a case
no penalty can survive and the same is liable to be cancelled. The additions
made in the assessment order have not been set aside and the order having been
confirmed by this Court in ITAT 75 of 2022, penalty proceedings cannot survive.
That apart, the Hon'ble Supreme Court had examined the factual position and
found that the notice issued under section 274 of the Act was defective and in
this regard also noted the decision in the case of CIT vs. Manjunatha Cotton and
Ginning Factory, (2013) 359 ITR 565 and allowed the assessee's appeal and
dismissed the revenue's appeal.
Thus, we find that there is no question of law, much less substantial
question of law, arising for consideration in this appeal.
Accordingly, the appeal is dismissed.
The stay application GA/2/2022 also stands dismissed.
(T.S. SIVAGNANAM, J.)
(HIRANMAY BHATTACHARYYA, J.)
S.Pal/SN
