Kashyap Maganbhai Vaghasiya, Surat V. Deputy Commissioner of Income Tax, Central Circle-1, Surat

ITA 106/SRT/2024

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 7940 (ITAT-SURAT)
• Duration Of Justice: 2 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-04-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 01-04-2024
• Assessment Year: 2013-2014
• Appeal Filed On: 28-01-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Recovery proceedings; Condonation of delay
• Section: 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM आयकर अपील सं./ITA No.106/SRT/2024 Assessment Year: (2013-14) (Physical Hearing) Kashyap Maganbhai Vaghasiya, 174, Shree Gadhpur Township, Pasodara Gam, Tal. Kamrej, Surat – 395206. Vs. The DCIT, Central Circle – 1, Surat èथायीलेखासं./जीआइआरसं./PAN/GIR No: AVDPV6623L (Appellant) (Respondent) Appellant by Shri P. M. Jagasheth CA Respondent by Shri Vinod Kumar, Sr. DR Date of Hearing 02/04/2024 Date of Pronouncement 08/04/2024 आदेश / O R D E R PER DR. A. L. SAINI, AM: Captioned appeal filed by the assessee, pertaining to Assessment Year (AY) 2013-14, is directed against the order passed by the Learned Commissioner of Income Tax (Appeals), [in short “the ld. CIT(A)”], Surat, in Appeal No.CIT(A) Surat-4/10082/2012-13, dated 21.09.2023, which in turn arises out of a penalty order passed by Assessing Officer u/s 271(1)(b) of the Income Tax Act, 1961 (hereinafter referred to as “the Act”), dated 02.02.2021. 2. The grounds of appeal raised by the assessee are as follows: “1. On the facts and in the circumstances of the case as well as the law on the subject, the learned Commissioner of the Income Tax (Appeals) has erred in confirming the action of the Assessing Officer in levying penalty of Rs.10,000/- u/s 271(1)(b) of the Income Tax Act, 1961. 2. It is therefore prayed that the above addition may please be deleted as learned members of the tribunal may deem it proper. 2 106/SRT/2024/AY.2013-14 Kashyap Maganbhai Vaghasiya 3. Appellant craves leave to add, alter or delete any ground(s) either before or in the course of the hearing of the appeal.” 3. The appeal filed by the assessee for assessment year 2013-14, is barred by limitation by 70 days. The assessee moved a petition for condonation of delay, requesting the Bench to condone the delay. The contents of petition for condonation of delay are reproduced below: “I have filed an appeal under section 253(1) of the Income Tax Act, 1961 on 29.01.2024 vide ITA 106/SRT/2024 against the order of the Commissioner (Appeals) relating to A.Y.2013-14 made on the 21.09.2023. Though this appeal should have been filed in the office of the Tribunal on or before the 20.11.2023 counting the period of sixty days from the date of communication of the order but it could not be so filed because I don’t have any knowledge about the Income Tax Proceedings and time limit in appeal filing. The order was passed by the CIT(A)-4, Surat and uploaded on online portal on 21.09.2023. Further, the CIT(A) has also served order through Speed post dtd. 03.10.2023. Further, there many notices for recovery proceedings issued and served to me, hence, the CIT(A)’s order was lying with other Income tax notices, when the summons issued and served to me dated 16.01.2024, hence I called to my AR and visited to my AR office and found that the order was passed and I have filed appeal on 29.01.2024 before the Hon. ITAT, Surat, hence my appeal was delayed by 70 days. Hence, due to this reason, necessary arrangement could not be made for filing of appeal before Hon’ble ITAT, Surat in time. In view of the above fact, it is clear that is the delay in submission of the appeal is due to good and sufficient reasons, therefore, pray that the delay in filing the appeal should be condoned and the appeal should be treated as filed within the allowed time.” 4. Based on the contents narrated in the petition for condonation of delay, the Ld. Counsel for the assessee argued that first of all the assessee is a minor hence no proceedings can be initiated on him. Secondly, the assessee has explained the sufficient cause of delay and reason to condone the delay, therefore delay may be condoned. 5. On the other hand, learned Senior Departmental Representative (ld. Sr. DR) for the Revenue submitted that assessee has failed to explain the sufficient cause / reason, therefore delay should not be condoned on such flimsy reasons and appeal of the assessee should be dismissed. 3 106/SRT/2024/AY.2013-14 Kashyap Maganbhai Vaghasiya 6. We have heard both the parties on this preliminary issue. We note that reasons given in the affidavit for condonation of delay, are convincing and these reasons would constitute reasonable and sufficient cause for the delay in filing this appeal. We, therefore, condone the delay and admit the appeal for hearing. 7. Succinct facts qua the issue are that assessing officer has levied penalty u/s 271(1)(b) of the Act, of Rs. 20,000/-, for non-compliance of two notices issued by the assessing officer u/s 142(1) of the Act, dated 02.12.2020 and 17.12.2020. 8. On appeal, ld CIT(A) deleted the penalty to the extent of Rs.10,000/-, stating that assessee has explained the bona-fide reasons. 9. Aggrieved by the order of ld. CIT(A), the assessee is in further appeal before us. 10. Shri P. M. Jagasheth, Learned Counsel for the assessee argued that first of all, the assessee is a minor, therefore, on minor person no proceedings can be initiated, as the minor does not have capacity to make contract, hence the penalty proceedings initiated on the minor are vitiated on this score only. Besides, Ld Counsel of the assessee argued that there was no any addition made by the assessing officer in quantum proceedings, therefore, penalty should not be imposed on the assessee. Hence, Ld Counsel prays the Bench that balance penalty of Rs.10,000 sustained by ld CIT(A) may be deleted. 11. On the other hand, ld. Sr. DR for the Revenue submitted that there was a non-compliance on the part of the assessee; therefore penalty should be imposed on the assessee for non-compliance of notice under 4 106/SRT/2024/AY.2013-14 Kashyap Maganbhai Vaghasiya section 142(1) of the Act and it should not be waived, simply because the assessee is a minor. 12. We have heard both the parties and carefully gone through the submissions put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the facts of the case including the findings of the ld. CIT(A) and other material brought on record. We note that ld Counsel for the assessee argued that assessee under consideration is a minor and assessment order was framed on the minor person without the consent of his guardian, which is not sustained in law, hence penalty sustained by ld CIT(A) is not sustainable in the hands of minor because minor does not have capacity to make contract. The minor`s income is clubbed in the hands of one of the parents, therefore considering these facts, we note that penalty should not be imposed on the minor -assessee. 13. We note that during the assessment proceedings, assessee submitted all the necessary details and complied with all the notices issued by the Assessing officer from time to time. Regarding the non- compliance of notice of hearing dated 02.12.2020 and 17.12.2020 requiring appellant to attend/furnish details on 14.12.2020 and 28.12.2020, the appellant filed letter for adjournment on 14.12.2020 and 28.12.2020. The non-compliance was due to Covid-19 pandemic, as the assessee was working with proper safety measures. Besides, it is also an admitted fact that no addition was made by the assessing officer in the quantum proceedings. That is, in the assessment order, the assessing officer did not make any addition in the hands of the assessee, therefore, there is no question to impose the penalty on the assessee and hence we delete the remaining penalty of Rs.10,000. 5 106/SRT/2024/AY.2013-14 Kashyap Maganbhai Vaghasiya 14. In the result, appeal filed by the assessee is allowed. Order is pronounced on 08/04/2024 in the open court. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER lwjr /Surat Ǒदनांक/ Date: 08/04/2024 SAMANTA Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat