Ita/63/2012 v. Assistant Commissioner Ofincome Tax, Circle-46, Kolkata

O-106 ITA/63/2012 IN THE HIGH COURT AT CALCUTTA SPECIAL JURISDICTION (Income Tax)ORIGINAL SIDE SMT. AMITA BHADRA -Versus- ASSISTANT COMMISSIONER OFINCOME TAX, CIRCLE-46, KOLKATA BEFORE :THE HON’BLE JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE HIRANMAY BHATTACHARYYADate : 20[th] February, 2023 Appearance :Mr. Soumen Bhattacharyya, Adv.…for the respondent.. The Court : This appeal filed by the assessee underSection 260A of the Income Tax Act, 1961 (the ‘Act’ forbrevity) is directed against the order dated 4[th] September,2009 passed by the Income Tax Appellate Tribunal, “B” Bench,Kolkata (the Tribunal) in ITA No.1175/Kol/2009 for theassessment year 2005-06. The appeal was admitted on 20[th] June, 2012 on thefollowing substantial question of law: “Whether on the facts and in the circumstances of thecase the order of the Tribunal was justified inupholding penalty imposed under Section 271(1)(c) ofthe Act without bringing on record any material to bring the case within Explanation 1 to Section271(1)(c) of the Act ?” We have heard Mr. Soumen Bhattacharyya, learnedstanding counsel appearing for the respondent/revenue. The short issue involved in this appeal is whether theTribunal was justified in reversing the order passed by theCommissioner of Income Tax (Appeals) deleting the penaltyimposed on the assessee. The Commissioner in its order tooknote of the factual position which was not disputed by therevenue regarding the condition and status of the assessee.Furthermore, the CIT(A) noted that the assessee’s healthcondition was precarious, she was a senior citizen, she wasunmarried and was residing along with her brother. Taking noteof the relevant factors, the CIT(A) came to the conclusion thatthe imposition of penalty was not justified and accordingly,allowed the appeal.The learned Tribunal by the impugned order hasreversed such a decision rendered by the CIT(A) largely relyingupon certain case laws without examining the correctness of thefinding of the CIT(A) which was rendered taking note of thefacts and circumstances of the case. In this appeal also allthe relevant documents which were filed before the Tribunal toestablish that the assessee was seriously unwell, have beenfiled and, there is nothing on record to doubt the genuineness of those documents. Furthermore, so far as the quantum ofassessment is concerned, the assessee has not questioned thesame and she had challenged the penalty proceedings alone. Thefact that the assessee was prevented by reasonable cause fornot disclosing the investment made in the mutual fund, thepenalty was deleted by the CIT(A). The learned Tribunal hasnot disputed the factual finding recorded by the CIT(A) forallowing the assessee’s appeal. Thus, in the absence of any finding by the Tribunalholding that the approach of the CIT(A) was erroneous, it isnot a case where the learned Tribunal could have set aside theorder of the CIT(A) and affirm the penalty order passed by theAssessing Officer. For the above reason, the appeal filed by the assessee(ITA/63/2012) is allowed and the order passed by the Tribunalis set aside and the order passed by the CIT(A) stands restoredand the penalty stands deleted and the substantial question oflaw is answered in favour of the assessee. (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.)