Manoj Sudhakar Pardeshi, Pune V. Deputy Commissioner of Income-tax, Circle - 14, Pune

ITA 1125/PUN/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 8149 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 11 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-06-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 22-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE
• Keywords: Rule of consistency; Reasonable cause; Set aside
• Section: 273B; 143(3); 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE (THROUGH VIRTUAL COURT) BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI PARTHA SARATHI CHAUDHURY, JM . / ITA NO.1125/PUN/2018 / ASSESSMENT YEAR : 2013-14 MANOJ SUDHAKAR PARDESHI, C/O G.Y. LIMAYE AND CO., 101, MANIKANCHAN, KANCHAN GALLIE, BEHIND KRISHNA DINING HALL, OFF. LAW COLLEGE ROAD, ERANDWANA, PUNE-411004. PAN : AAZPP3408J ....... / APPELLANT / V/S. DCIT, CIRCLE-14, PUNE. / RESPONDENT ASSESSEE BY : SHRI KISHOR PHADKE REVENUE BY : SHRI S. P. WALIMBE / DATE OF HEARING : 02.06.2020 / DATE OF PRONOUNCEMENT : 02.06.2020 / ORDER PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF THE CIT(A)-7, PUNE DATED 25.04.2018 FOR THE ASSESSMENT YEAR 2013-14. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER :- 1. THE LEARNED DCIT, CIRCLE 14, PUNE (HEREINAFTER REFERRED TO AS LEARNED AO) ERRED IN LAW AND ON FACTS IN LEVYING A PENALTY OF RS. 10,000/- U/S 271(1)(B) OF THE ITA, 1961. 2. IN ARRIVING AT THE CONCLUSION FOR LEVY OF PENALTY, THE LOWER AUTHORITIES FAILED TO APPRECIATE THAT - THE APPELLANT ENSURED DUE COMPLIANCES WITH ALL THE NOTICES ISSUED BY THE LEARNED AO AND HENCE LEVY OF PENALTY IS BAD IS LAW. - NO NON-COMPLIANCE WITH NOTICES ISSUED BY LEARNED AO DECIPHERS FROM THE ASSESSMENT ORDER. 2 ITA NO.1125/PUN/2018 - THE ASSESSMENT ORDER U/S 143(3) WAS PASSED WITH NIL ADDITIONS AND IT WAS STATED THAT THE APPELLANT HAD PRODUCED AND EXPLAINED THE DETAILS CALLED FROM TIME TO TIME. 3. THE LEARNED CIT(A)-7 ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT THE LEARNED AO FAILED TO ABIDE BY PROVISIONS OF SEC 129 OF ITA 1961. 4. THE APPELLANT CRAVES LEAVE TO ADD / MODIFY / DELETE / AMEND ALL / ANY OF THE GROUNDS OF APPEAL. 3. BRIEFLY STATED THE RELEVANT FACTS INCLUDE THAT THE ASSESSEE IS A PROPRIETOR OF RELIABLE TECHNO SOLUTIONS. THE ASSESSEE FILED THE RETURN OF INCOME DECLARING TOTAL INCOME OF RS.1,18,83,396/-. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTED THAT THE ASSESSEE DID NOT COMPLY TO NOTICE ISSUED U/S 142(1) OF THE ACT ON 07.12.2015 REQUIRING THE ASSESSEE TO FURNISH CERTAIN INFORMATION ON OR BEFORE 21.12.2015. FURTHER, THE ASSESSING OFFICER INITIATED THE PENALTY PROCEEDINGS U/S 271(1)(B) OF THE ACT AND A SHOW CAUSE NOTICE ISSUED ALONG WITH THE NOTICE U/S 142(1) OF THE ACT DATED 11.01.2016. FURTHER, THE ASSESSING OFFICER NOTED THAT THERE WAS NO RESPONSE TO SHOW CAUSE NOTICE ISSUED AND THE ASSESSING OFFICER IMPOSED THE PENALTY OF RS.10,000/- U/S 271(1)(B) OF THE ACT IN THE HANDS OF THE ASSESSEE. THE CIT(A), WITHOUT GIVING REASONABLE OPPORTUNITY TO THE ASSESSEE, CONFIRMED THE PENALTY AS IMPOSED/LEVIED BY THE ASSESSING OFFICER. 4. AGGRIEVED WITH THE ABOVE DECISION OF THE CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL WITH THE ABOVE EXTRACTED GROUNDS. 5. BEFORE US, AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO THE APPELLATE ORDER OF THE CIT(A) AND MENTIONED THAT THE SAME IS AN EX-PARTE ORDER. FURTHER, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE ENSURED DUE COMPLIANCE WITH ALL THE NOTICES ISSUED BY THE ASSESSING OFFICER. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSMENT ORDER 3 ITA NO.1125/PUN/2018 WAS PASSED WITH NIL ADDITIONS. THE LD. COUNSEL FOR THE ASSESSEE FURTHER RELIED ON THE DECISION OF PUNE BENCH OF THE TRIBUNAL IN THE CASE OF MRS. SHAKUNTALA HIRALAL MALU VS. DCIT VIDE ITA NO.1116/PN/09 AND OTHERS DATED 29.04.2011 AS WELL AS THE DECISION OF DELHI BENCH OF THE TRIBUNAL IN THE CASE OF GLOBUS INFOCOM LIMITED VS. DCIT VIDE ITA NO.738/DEL/2014 DATED 29.06.2016 AND SUBMITTED THAT AN IDENTICAL ISSUE CAME UP BEFORE THE TRIBUNAL AND THE TRIBUNAL IN BOTH THE RESPECTIVE DECISIONS SET-ASIDE THE ORDER OF THE CIT(A) AND ALLOWED THE APPEAL IN FAVOUR OF THE ASSESSEE. 6. FURTHER, LD. AR SUBMITTED THAT HE WAS OTHERWISE OCCUPIED WITH THE SIMILAR PROCEEDINGS BEFORE THE OTHER A.O. IN THANE. THE ASSESSEE INFORMED DULY THE ASSESSING OFFICER ABOUT THE NEED FOR ADJOURNMENT. NO URGENCY WAS EVIDENT ON FILE AS THE ASSESSMENT WAS MADE AFTER 3 YEARS FROM THE DATE OF NOTICE DATED 07.12.2015. 7. ON THE OTHER HAND, LD. DR FOR THE REVENUE RELIED HEAVILY ON THE ORDERS OF THE AUTHORITIES BELOW. 8. WE HEARD BOTH THE PARTIES. ON PERUSAL OF THE ABOVE CITED DECISION OF THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF MRS. SHAKUNTALA HIRALAL MALU (SUPRA), WE FIND AN IDENTICAL ISSUE CAME UP BEFORE THE TRIBUNAL AND THE TRIBUNAL AFTER DETAILED DISCUSSION IN ITS ORDER DELETED THE PENALTY AS IMPOSED AS WELL AS LEVIED BY THE LOWER AUTHORITIES. THE CONTENTS OF PARA 7 OF THE ORDER OF THE TRIBUNAL IN THE CASE OF MRS. SHAKUNTALA HIRALAL MALU (SUPRA) ARE RELEVANT AND FOR THE SAKE OF COMPLETENESS OF THIS ORDER, THE SAID PARA 7 IS EXTRACTED HEREUNDER :- 4 ITA NO.1125/PUN/2018 7. CONSIDERING THE ABOVE SUBMISSIONS, WE FIND THAT UNDISPUTEDLY ASSESSMENT HAS BEEN FRAMED U/S 143(3) READ WITH SEC. 153A/153C AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE. THERE IS NO EX PARTE ASSESSMENT. WE THUS DO NOT FIND REASON TO DISBELIEVE THE ABOVE-STATED EXPLANATION OF THE ASSESSEE FOR NON- COMPLIANCE OF NOTICE ISSUED U/S 142(1)/143(2) ON 23.10.2007 FIXING THE DATE OF HEARING ON 2.11.2007. THE EXPLANATION OF THE ASSESSEE IN THIS REGARD REMAINED THAT HE HAD SENT THE NOTICE TO HIS CA, BUT HE WAS EXTREMELY BUSY IN FILING HE RETURNS AND, THEREFORE, DUE COMPLIANCE MAY NOT HAVE BEEN MADE. THE CHART OF APPEARANCE MADE AVAILABLE AT PAGES 37 & 38 OF THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE BEFORE THE TRIBUNAL SHOWS THAT SHRI MUNDADA, THE LD. CA OF THE ASSESSEE USED TO ATTEND THE OFFICE OF THE AO IN CONNECTION WITH THE CASES OF MALU- AGARWAL GROUP. THUS, NO MALA FIDE INTENTION CAN BE INFERRED AGAINST THE ASSESSEE FOR DELIBERATE NON-COMPLIANCE OF NOTICE ISSUED ON 23.10.2007 FOR 2.11.2007. THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF AKHIL BHARTIYA PRATHAMIK SHIKSHAN SANGH BHAVAN TRUST (SUPRA) HAS HELD THAT IF THE ASSESSMENT ORDER IS PASSED U/S 143(3) AND NOT U/S 144, THEN NON-COMPLIANCE IS DEEMED TO HAVE BEEN WAIVED. SIMILAR VIEW HAS BEEN TAKEN BY THE AHMEDABAD BENCH OF THE TRIBUNAL IN THE CASE OF SWARNABEN M KHANNA & OTHERS (SUPRA). THE PROVISIONS LAID DOWN U/S 273B OF THE ACT MAKE IT CLEAR THAT NO PENALTY U/S 271(1)(B) SHALL BE IMPOSED ON THE PERSON OR THE ASSESSEE, AS THE CASE MAY BE, FOR ANY FAILURE REFERRED TO IN THE SAID PROVISIONS, IF HE PROVES THAT THERE WAS REASONABLE CAUSE FOR THE SAID FAILURE. INVOKING THESE PROVISIONS U/S 273B OF THE ACT, WE FIND THAT THE ASSESSEE IN THE PRESENT CASE HAS BEEN SUCCESSFUL IN EXPLAINING THAT THERE WAS REASONABLE CAUSE FOR NON-COMPLIANCE OF THE NOTICE IN QUESTION ON THE PART OF THE ASSESSEE, AS DISCUSSED ABOVE. WE THUS SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW IN THIS REGARD AND DIRECT THE AO TO DELETE THE PENALTY LEVIED U/S 271(1)(B) FOR NON- COMPLIANCE OF NOTICE ISSUED ON 23.10.2007 FOR 2.11.2007. THE GROUND IS ACCORDINGLY ALLOWED. CONSEQUENTLY, THE APPEALS ARE ALLOWED. 9. THE PENALTY RELATED NOTICE WAS ISSUED ON 07.12.2015 AND THE ASSESSMENT WAS MADE ON 08.02.2016 WITHOUT MAKING ANY ADDITION. THE ASSESSING OFFICER ACCEPTED THE RETURN OF INCOME AS FILED BY THE ASSESSEE. WITH THESE FACTS, WE CONSIDER THE ARGUMENT OF THE LD. COUNSEL FOR THE ASSESSEE IN THE FOLLOWING MANNER. FIRSTLY, REGARDING HIS BUSINESS WITH OTHER SIMILAR PROCEEDINGS WITH DIFFERENT ASSESSING OFFICER IN THANE IN CONNECTION WITH OTHER APPEALS, WE ARE OF THE OPINION, THAT CAN CONSTITUTE A REASONABLE CAUSE PROVIDED THE AR DULY INTIMATED THE AUTHORITIES. IT IS THE CASE OF THE AR THAT THE INTIMATION OF DULY GIVEN ALTHOUGH THE RELEVANT LETTER IS NOT AVAILABLE ON RECORD. CONSIDERING THE REQUIREMENT OF BENEFIT OF DOUBT TO THE ASSESSEE, WE ARE OF THE OPINION THAT THE ASSESSEE DISCHARGED THE ONUS DULY. SECONDLY, REGARDING NO LEVY OF PENALTY WHEN THE RETURN OF INCOME WAS ACCEPTED WITHOUT MAKING ANY ADDITION, WE FIND 5 ITA NO.1125/PUN/2018 THERE WAS RELEVANT FAVOURABLE DECISIONS EXISTENCE IN THIS REGARD IN FAVOUR OF THE ASSESSEE. 10. FURTHER, ON PERUSING THE DECISION OF DELHI BENCH OF THE TRIBUNAL IN THE CASE OF GLOBUS INFOCOM LIMITED (SUPRA), WE FIND IDENTICAL VIEW HAS BEEN TAKEN BY THE TRIBUNAL AND DELETED THE PENALTY LEVIED BY THE CIT(A). CONSIDERING THE ABOVE FACTS, THE RESPECTIVE DECISIONS OF THE TRIBUNAL AND FOLLOWING THE RULE OF CONSISTENCY, WE ARE OF THE OPINION THAT THE PENALTY LEVIED BY THE CIT(A) SHOULD BE DELETED. THUS, FOLLOWING THE JUDICIAL PRECEDENT, WE SET-ASIDE THE ORDER OF THE CIT(A) AND DELETE THE PENALTY LEVIED BY THE CIT(A). ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 02 ND DAY OF JUNE, 2020. SD/- SD/- (PARTHA SARATHI CHAUDHURY) (D. KARUNAKARA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 02 ND JUNE, 2020 SUJEET / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A)-7, PUNE. 4. THE PR. CIT-6, PUNE. 5. , , , / DR, ITAT, B BENCH, PUNE. 6. / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE.