Bharat Rajkumar Agrawal, Pune V. DCIT Cen. Cir. 1(2), Pune

ITA 1131/PUN/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7617 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-02-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2002-2003
• Appeal Filed On: 18-09-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHAY DAMLE
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE BEFORE SHRI I.C. SUDHIR (JM) AND SHRI D. KARUNAKARA RAO (AM) ITA NO. 1131, 1133 TO 1135/PN/2009 ( ASSTT. YEARS : 2002 - 03,2004 - 05 TO 2006 - 07) BHARAT RAJKUMAR AGARWAL 283, BUDHWAR PETH, PUNE PAN : ACRPA6248F .. APPELLANT V. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 1(2), PUNE . RESPONDENT A PPELLANT BY : SHRI KISHORE PHADKE RESPONDENT BY : SHRI ABHAY DAMLE ORDER PER I.C. SUDHIR JM IN ALL THESE APPEALS, THE ASSESSEE HAS QUESTIONED FIRST APPELLATE ORDER ON COMMON GROUNDS INVOLVING THE ISSUE AS TO WHETHER LD CIT WAS JUSTIFIED IN CONFIRMING PENALTY LEVIED U/S. 271(1)(B) OF THE ACT. 2. AT THE OUTSET OF HEARING, THE LD. A.R. POINTED OUT THAT THE ISSUE RAISED IN THE PRESENT APPEALS IS FULLY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF PUNE BENCH OF THE TRIBUNAL IN THE CASES OF M/S. BANSILAL SARIES V/S. DCIT & OTHERS, ITA NOS. 39 TO 45, 82 TO 102/PN/ 2010 (A.YS. 2000 - 01 TO 2006 - 07) ORDER DT. 30 TH JUNE 201 0. 3. THE LD. D.R. DID NOT DISPUTE THE ABOVE SUBMISSION. HE, HOWEVER, PLACED RELIANCE ON THE ORDERS OF THE AUTHORITIES BELOW. ITA NO 1131, 1133 TO 1135 /PN/200 9 BHARAT RAJKUMAR AGARWAL ASSTT. YEARS 2002 - 03 ,2004 - 05 TO 2006 - 07 PAGE OF 4 2 4. HAVING GONE THROUGH THE ABOVE CITED ORDER DT. 30 TH JUNE 2010 OF THE TRIBUNAL IN THE CASE OF M/S. BANSILAL SARIES V/S. DCIT A ND OTHERS (SUPRA), WE FIND THAT AN IDENTICAL ISSUE HAS BEEN DECIDED BY THE TRIBUNAL UNDER THE SIMILAR FACTS AND CIRCUMSTANCES OF THE CASE FOLLOWING ITS EARLIER DECISION IN THE CASE OF M/S. RAJENDRA TRADING CO., ITA NO. 25 TO 31/PN/2010, ORDER DT. 30 TH JUNE 2010. THE RELEVANT PARA NO. 5 OF THE SAID ORDER DT. 30 TH JUNE 2010 IN THE CASE OF RAJENDRA TRADING CO. (SUPRA) IS BEING REPRODUCED HEREUNDER WHICH IS SELF EXPLANATORY : - 5. AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MATERIAL BEFORE US, AS DISCUSSED A BOVE THE ASSESSEE WILL NOT GET THE BENEFIT OF HIS ARS INABILITY ON THE DATE OF NOTICE. INABILITY ON DATE OF NOTICE CANNOT BE A REASONABLE CAUSE FOR NON - APPEARANCE ON THE DATE OF HEARING. REGARDING THE OTHER REASONS AS DISCUSSED ABOVE, EACH DEFAULT HAS T O BE LOOKED INTO ITS FACTS AND CIRCUMSTANCES. (A) NOTICE RECEIVED ON DATE OF HEARING MAY BE A REASONABLE CAUSE FOR NON - APPEARANCE ON A PARTICULAR DATE. (B) ATTENDANCE IN OTHER CASE BEFORE THE SAME A.O ON SPECIFIC DATE MAY BE A REASONABLE CAUSE FOR NON - A PPEARANCE ON A PARTICULAR DATE; (C) HOSPITALIZATION OF ASSESSEE OR THEIR FAMILY MEMBER MAY BE A REASONABLE CAUSE FOR NON - APPEARANCE ON DATE OF HEARING PROVIDED THE SAME IS FOLLOWED BY AN INTIMATION TO A.O IN ANY FORM; (D) ACCOUNTANTS HOSPITALIZATION M AY BE REASONABLE CAUSE, IN CASE SAID ACCOUNTANT WAS TO ATTEND THE CASE OF HEARING AND HE COULD NOT COMMUNICATE TO ASSESSEE WITH REGARD TO HIS HOSPITALIZATION. (E) COUNSEL OUT OF STATION MAY NOT BE A REASONABLE CAUSE IN NORMAL SITUATION, BUT IT MAY BE A R EASONABLE CAUSE FOR NON - APPEARANCE IN CASE COUNSEL LEFT TOWN WITHOUT INFORMING ASSESSEE ITA NO 1131, 1133 TO 1135 /PN/200 9 BHARAT RAJKUMAR AGARWAL ASSTT. YEARS 2002 - 03 ,2004 - 05 TO 2006 - 07 PAGE OF 4 3 AND ASSESSEE WAS UNDER BONAFIDE IMPRESSION THAT COUNSEL WILL ATTEND THE PROCEEDINGS AS PER THEIR UNDERSTANDING; (F) ACCOUNTANTS MEDICAL LEAVE IN THE KNOWLEDGE OF A SSESSEE CANNOT BE A REASONABLE CAUSE FOR NON - APPEARANCE BECAUSE ASSESSEE IS SUPPOSED TO MAKE ALTERNATIVE ARRANGEMENT FOR APPEARANCE ON THE DATE OF MEDICAL LEAVE OF ACCOUNTANT; (G) DATE NEAR TO TAX AUDIT CANNOT BE A REASONABLE CAUSE FOR NOT APPEARING ON TH E DATE OF HEARING BECAUSE ASSESSEE HAD OPTION TO MOVE APPLICATION FOR ADJOURNMENT IN CASE ASSESSEE WAS AWARE OF THE ABOVE SAID FACT. (H) ADJOURNMENT SOUGHT FOR DIWALI OR ANY FESTIVAL MAY BE A REASONABLE CAUSE FOR NON - APPEARANCE ON DATE OF HEARING. SO IN THE INTEREST OF JUSTICE, WE RESTORE ALL THESE APPEALS TO A.O WITH A DIRECTION TO DECIDE THE SAME AS PER FACT AND CIRCUMSTANCES I.E. AFTER PROVIDING DUE OPPORTUNITY OF HEARING. THE ASSESSEE WILL BE AT LIBERTY TO ESTABLISH ITS BONAFIDE FOR NON - ATTENDANCE ON EACH DATE WITH COGENT REASONS. SINCE WE ARE RESTORING THE MATTER TO THE A.O ON BASIC ISSUE, SO WE ARE REFRAINING TO COMMENT ON THE MERITS OF EACH CASE SEPARATELY. A.O HAS TO SEE IF THERE EXIST A REASONABLE CAUSE NOT ONLY FOR NON - COMPLIANCE TO NOTICE B UT ALSO FOR INABILITY TO COMMUNICATE TO THE A.O ABOUT HIS INABILITY. PER CONTRA, THE ASSESSEE HAS TO DEMONSTRATE THE EXISTEHNCE OF REASONABLE CAUSE WITH SUBSTANTIAL EVIDENCES. IT IS PERTINENT TO MENTION HERE THAT APARTHY TO THE PROCEEDINGS BEFORE THE LOW ER AUTHORITIES SHOULD NOT BE ENCOURAGED IN ANY MANNER. FOLLOWING THE ABOVE MENTIONED ORDER OF THE TRIBUNAL, WE RESTORE THE ISSUE TO THE FILE OF THE A.O WITH THE SAME DIRECTIONS AS CONTAINED IN THE SAID ORDER OF THE TRIBUNAL. 5. IN RESULT, ALL THE APPE ALS ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 9TH DAY OF FEBRUARY 201 1 ITA NO 1131, 1133 TO 1135 /PN/200 9 BHARAT RAJKUMAR AGARWAL ASSTT. YEARS 2002 - 03 ,2004 - 05 TO 2006 - 07 PAGE OF 4 4 SD/ - SD/ - (D. KARUNAKARA RAO) ACCOUNTANT MEMBER (I.C. SUDHIR ) JUDICIAL MEMBER PUNE, DATED THE 9TH FEBRUA RY, 2011 US COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT - (CENTRAL) , PUNE 4. THE CIT(A) - I, PUNE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE