M/S. HGP Cars Private Limited, Kanpur V. Income Tax Officer- 6(2), , Kanpur

ITA 09/LKW/2018

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 8889 (ITAT-LUCKNOW)
• Duration Of Justice: 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2015-2016
• Appeal Filed On: 05-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 144; 143(3); 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI. T.S. KAPOOR, ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER ITA NO. 09/LKW/2018 ASSESSMENT YEAR: 2015 - 16 M/S HGP CARS PVT. LTD. 109/361, G.T. ROAD KAN PUR V. INCOME TAX OFFICER 6(2) KANPUR T AN /PAN : AACCH9085R (APP LICA NT) (RESPONDENT) APP LIC ANT BY: SHRI P. K. KAPOOR, C.A. RESPONDENT BY: SHRI J.S. MINHAS, CIT (DR) DATE OF HEARING: 25 0 9 201 8 DATE OF PRONOUNCEMENT: 28 0 9 201 8 O R D E R PER P ARTHA SARATHI CHAUDHURY, J.M : THIS APPEAL PREFERRED BY THE ASSESSEE EMANATES FROM THE ORDER OF THE LD. CIT(A) - II, KANPUR DATED 26/10/2017. 2 . THE ONLY GRIEVANCE OF THE ASSESSEE IS AGAINST IMPOSITION OF PENALTY UNDER SECTION 271(1)(B) OF THE ACT. THE LD. A.R. OF THE ASSESSEE AT THE TIME OF HEARING VEHEMENTLY ARGUED THAT IN THIS CASE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF THE ACT AND CERTAIN ADDITIONS WERE MADE IN THAT ORDER. THEREAFTER THEY PREFERRED AN APPEAL BEFORE THE CONCERNED LD. CIT(A) AND IN THA T ORDER DATED 12/6/2018 LD. CIT(A) HAS DELETED ALL THE ADDITIONS MADE IN THE QUANTUM ASSESSMENT. LD. A.R. OF THE ASSESSEE FURTHER SUBMITTED THAT ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) AND ASSESSEE HAS IN DUE COURSE COMPLIED WITH AND CO - ORDINATED WI TH THE DEPARTMENTAL PROCEEDINGS WHEREIN ASSESSMENT WAS BROUGHT TO A LOGICAL END UNDER SECTION 143(3) OF THE ACT AND NOT UNDER ITA NO.09/LKW/2018 PAGE 2 OF 3 SECTION 144 OF THE ACT. HE PLACED RELIANCE UPON THE DECISION OF THE TRIBUNAL IN THE CASE OF AKHIL BHARTIYA PRATHMIK SHIKSHAK SANG H BHAWAN TRUST VS. ACIT [2008] 115 TTJ (DEL) 419 WHEREIN IT WAS HELD THAT WHERE THE ORDER IS PASSED UNDER SECTION 143(3) AND NOT UNDER SECTION 144 OF THE ACT, IN THE SAID CASE, THE PENALTY UNDER SECTION 271(1)(B) SHOULD NOT BE IMPOSED. FINALLY ORDER IS PA SSED UNDER SECTION 143(3) AND NOT UNDER SECTION 144 OF THE ACT, WHICH MEANS THAT SUBSEQUENT COMPLIANCE IN THE ASSESSMENT PROCEEDINGS WAS CONSIDERED AS GOOD COMPLIANCE AND THE DEFAULTS COMMITTED EARLIER WERE IGNORED BY THE ASSESSING OFFICER. THEREFORE, IN SUCH CIRCUMSTANCES, THERE COULD HAVE BEEN NO R E ASON TO COME TO THE CONCLUSION THAT THE DEFAULT WAS WILLFUL. LD. A.R. OF THE ASSESSEE ADDED THAT EVEN LD. CIT(A) HAS DELETED THE ADDITIONS IN THE QUANTUM PROCEEDINGS. 3 . THE LD. D.R., ON THE OTHER HAND, RELIED O N THE ORDERS OF THE AUTHORITIES BELOW. HE APPRISED THE BENCH THAT EVEN BEFORE THE LD. CIT(A) THERE WAS NO COMPLIANCE BY THE ASSESSEE AND EX - PARTE ORDER WAS PASSED IN THIS CASE AND FOR WANT OF PROSECUTION APPEAL WAS DISMISSED WITH REGARD TO THE ISSUE OF PE NALTY UNDER SECTION 271(1)(B) OF THE ACT. 4 . WE HAVE PERUSED THE CASE RECORD AND HEARD THE RIVAL CONTENTIONS AND WE FIND THAT EVEN THOUGH APPELLATE ORDER PASSED BY THE LD. CIT(A) IS AN EX - PARTE ORDER ON THE GROUND OF NON - COMPLIANCE BY THE ASSESSEE BECAUSE OF WHICH PENALTY UNDER SECTION 271(1)(B) OF THE ACT IMPOSED BY THE ASSESSING OFFICER WAS UPHELD BY THE LD. CIT(A). HOWEVER, WE FIND THAT IN THE SAME APPELLATE ORDER LD. CIT(A) HAS STATED THAT HE DECIDED THE ISSUE ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. HOWEVER, ENTIRE RECORDS WERE NOT ANALYSED PROPERLY BY THE LD. CIT(A). IT IS A FACT ON RECORD THAT ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) WHICH IS NOT DISPUTED BY THE REVENUE. THERE HAS BEEN QUANTUM APPEAL ITA NO.09/LKW/2018 PAGE 3 OF 3 FILED BEFORE THE LD. CIT(A) AND HE HAS D ELETED ALL THE ADDITIONS MADE IN THE QUANTUM PROCEEDINGS. THERE HAS BEEN A COPY OF WRITTEN SUBMISSION SENT TO THE LD. CIT(A) THROUGH EMAIL ON 16/10/2017 WHEREIN THE DECISION OF DELHI BENCH OF THE TRIBUNAL (SUPRA) HAS BEEN RELIED UPON BY THE ASSESSEE. THE LD. CIT(A) SHOULD HAVE LOOKED INTO THE OVERALL CONDUCT VIS - - VIS THE MATERIALS AVAILABLE ON RECORD BEFORE HIM. IN THIS CASE , ONCE ASSESSMENT IS COMPLETED UNDER SECTION 143(3) OF THE ACT , WHICH SIGNIFIES THAT THERE HAS BEEN SUBSEQUENT COMPLIANCE BY THE AS SESSEE, OTHERWISE NOTHING PREVENTED THE ASSESSING OFFICER TO RESORT TO BEST JUDGMENT ASSESSMENT UNDER SECTION 144 OF THE ACT. ONCE THIS FACT IS NOT DISPUTED, THERE ARISES NO QUESTION OF IMPOSING PENALTY UNDER SECTION 271(1)(B) OF THE ACT. WITH THESE OBSE RVATIONS, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND DIRECT DELETION OF PENALTY LEVIED UNDER SECTION 271(1)(B) OF THE ACT IN THE CASE OF THE ASSESSEE. 5 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 / 0 9 / 201 8 . S D/ - SD/ - [ T.S. KAPOOR ] [PARTHA SARATHI CHAUDHURY ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 28 TH SEPTEMBER , 201 8 JJ: 2509 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR