Shri Rajkumar Khilwani, Bhopal V. THE ACIT (CENTRAL) II, Bhopal

ITA 1171/IND/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5574 (ITAT-INDORE)
• Duration Of Justice: 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 02-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED
• Assessee Lawyers: S S DESHPANDE
• Keywords: Loose papers; Reasonable cause
• Section: 143(3); 142(1)

Judgement Text

VINEET CHOUHAN AND OTHERS ITA 1061 OF 2016 AND OTHERS 1 IN THE INCOME TAX APPELLATE TRIBUN INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER A ND SHRI O.P. MEENA, HONBLE ACCOUNTANT MEMBER ITA NOS. 1061 TO 1181/IND/2016 A.YS. 2008-09 TO 2014-15 A.YS. 2008-09 TO 2014-15 A.YS. 2008-09 TO 2014-15 A.YS. 2010-11 TO 2014-15 A.YS. 2008-09 TO 2014-15 A.YS. 2008-09 TO 2014-15 A.YS. 2009-10 TO 2014-15 A.YS. 2008-09 TO 2014-15 A.YS. 2011-12 TO 2014-15 A.YS. 2008-09 TO 2014-15 A.YS. 2010-11 TO 2014-15 A.YS. 2010-11 TO 2014-15 A.YS. 2008-09 TO 2014-15 A.YS. 2008-09 TO 2014-15 A.YS. 2008-09 TO 2014-15 A.YS. 2010-11 TO 2014-15 A.YS. 2008-09 TO 2014-15 A.YS. 2008-09 TO 2014-15 A.YS. 2008-09 TO 2014-15 1. VINEET CHOUHAN, BHOPAL 2. ANIL KHILWANI, BHOPAL 3. SAINATH COLONISERS, BHOPAL 4. VIRSHA INFRASTRUCTURE, BHOPAL 5. RAJBALA GUPTA, BHOPAL 6. BHUPENDRA VISHWAKARMA, BHOPAL 7. CNP CONSTRUCTIONS, BHOPAL 8. YOGITA VISHWAKARMA, BHOPAL 9. SIGNATURE COLONISERS, BHOPAL 10. OM BUILDERS, BHOPAL 11. SAINATH DWELLINGS P. LTD. , BHOPAL 12. SAINATH PROMOTERS & DEVELOPERS, BHOPAL 13. SONAL KHILWANI, BHOPAL 14. RAJKUMAR KHILWANI, BHOPAL 15. SAINATH COLONISERS (P) LTD., BHOPAL 16. SIGNATURE BUILDERS, BHOPAL VINEET CHOUHAN AND OTHERS ITA 1061 OF 2016 AND OTHERS 2 17. VIPIN CHOUHAN, BHOPAL 18. VIVEK CHOUHAN, BHOPAL 19. OM CONSTRUCTION, BHOPAL APPELLANTS VS. ACIT(CENTRAL)-II, BHOPAL RESPONDENT ASSESSEES BY SHRI S.S. DESHPANDE RESPONDENT BY SHRI MOHD. JAVED, DR DATE OF HEARING 23.11.2016 DATE OF PRONOUNCEMENT 23.11.2016 PER BENCH ALL THESE APPEALS HAVE BEEN FILED BY DIFFERENT ASSE SSEES AGAINST DIFFERENT ORDERS OF THE LEARNED CIT(A)-3, BHOPAL DATED 29.7.2 016 FOR THE ABOVE ASSESSMENT YEARS. 2. IN ALL THESE APPEALS, THE SOLE ISSUE INVOLVED IS THAT THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE LEVY OF PENALTY U/S 271 (1)(B) OF THE I.T. ACT AT RS.10,000/- IN EACH ASSESSMENT YEAR IN THE CASES OF ALL THESE ASSESSEES. 3. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEES SUBMITTED THAT IN ALL THESE APPEALS, THE FACTS AND THE ISSUE INVOLVED ARE IDENTICAL AND, THEREFORE, HE WILL BE ARGUING THE FACTS IN THE CASE OF VINEET CHO UHAN. HE SUBMITTED THAT THE ASSESSING OFFICER ISSUED NOTICE U/S 142(1) OF THE A CT ON 30.9.2015 ASKING THE ASSESSEE TO FURNISH THE DETAILS UPTO 29.10.2015 AND IN SOME CASES UPTO VINEET CHOUHAN AND OTHERS ITA 1061 OF 2016 AND OTHERS 3 30.10.2015. THE COUNSEL OF THE GROUP, SHRI RAJENDRA SHARMA PERSONALLY APPEARED AND VERBALLY REQUESTED A TIME FOR FILING T HE DETAILS. SINCE, IN MORE THAN FORTY CASES, THE STEREOTYPE QUESTIONNAIRES WER E ISSUED, IT REQUIRED TIME TO FILE THE NECESSARY DETAILS AS PER QUESTIONNAIRE. HE FURTHER SUBMITTED THAT VOLUMINOUS LOOSE PAPERS WERE ALSO REQUIRED TO BE SC RUTINIZED AND AS SUCH, THE TIME WAS SOUGHT TO SUBMIT THE REPLY TO THE QUESTION NAIRE. SUBSEQUENTLY, DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, ALL THE N ECESSARY DETAILS WERE FILED AND ASSESSMENTS WERE FRAMED U/S 153A/143(3) OF THE I.T. ACT. IN MOST OF THE CASES, THE COMMON ORDERS WERE PASSED AND ASSESSMENT S HAVE BEEN FRAMED ON THE BASIS OF INFORMATION SUBMITTED FROM TIME TO TIM E. LD. AR SUBMITTED THAT SHRI RAJENDRA SHARMA, COUNSEL HAS ATTENDED THE OFFI CE ON THE DATE FIXED AND VERBALLY REQUESTED FOR TIME FOR FILING THE DETAILS. HOWEVER, THE ASSESSING OFFICER WAS OF THE VIEW THAT SHRI RAJENDRA SHARMA D ID NOT ATTEND ON THE SPECIFIED DATE AND AS SUCH, THERE IS NO QUESTION OF ADJOURNMENT. THE LD. AR SUBMITTED THAT CA SHRI RAJENDRA SHARMA HAS APPEARED AND THE CONCERNED OFFICER WAS ON LEAVE, THEREFORE, THE REPLY COULD NO T BE FILED BUT ASSESSEES HAD DO FILED REPLY AND AFTER FILING THE REPLY, ALL THE ASSESSMENTS HAVE BEEN DONE U/S 143(3) OF THE ACT, THEREFORE, ASSESSEES HAD REASONA BLE CAUSE FOR NOT FILING THE NECESSARY DETAILS ON FIRST DAY OF HEARING, THEREFOR E, PENALTY MAY BE DELETED. THE VINEET CHOUHAN AND OTHERS ITA 1061 OF 2016 AND OTHERS 4 TRIBUNAL HAS CANCELLED THE PENALTY ON THE SIMILAR R EASONABLE CAUSE, THEREFORE, PENALTY MAY BE DELETED AND HE RELIED UPON THE VARIO US DECISIONS. 4. ON THE OTHER HAND, LD. DR RELIED ON THE ORDERS O F THE REVENUE AUTHORITIES. 5. WE HAVE HEARD RIVAL CONTENTIONS OF BOTH THE PART IES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND FROM THE ASSE SSMENT ORDERS IN ALL THESE GROUP APPEALS THAT THE ASSESSMENTS HAVE BEEN COMPLE TED U/S 143(3) OF THE I.T. ACT. WE FIND THAT THE ASSESSING OFFICER HAS LEVIED PENALTY U/S 271(1)(B) FOR NON-APPEARANCE ON 30.10.2015. THE ASSESSEES COUNSE L APPEARED ON 29.10.2015 AND INFORMED THE ASSESSING OFFICER THAT THERE ARE LARGE NUMBERS OF CASES INVOLVED IN THIS GROUP OF APPEALS, THEREFORE, HE SOUGHT TIME TO FILE THE REPLY. THE ASSESSING OFFICER HAD VERBALLY AGREED BU T ASSESSEES COUNSELS PRESENCE WAS NOT MARKED. THE COUNSEL AGAIN APPEARED ON 24.11.2015 AND IT WAS INFORMED BY THE OFFICE THAT ASSESSING OFFICER I S ON LEAVE AND HE WILL JOIN ON MONDAY 30.11.2015 AND COUNSEL OF THE ASSESSEES AGAI N APPEARED IN THE OFFICE ON 30.11.2015 AND COMPLIED WITH THE NOTICES STATING THE ABOVE FACTS. THE LEARNED COUNSEL FOR THE ASSESSEES HAD ALSO REPLIED TO THE ACIT THAT CA SHRI RAJENDRA SHARMA HAD APPEARED ON 24.11.2015 AND INFO RMED THE ASSESSING OFFICER ACCORDINGLY. WE ARE OF THE VIEW THAT ASSESS EES HAD REASONABLE CAUSE FOR VINEET CHOUHAN AND OTHERS ITA 1061 OF 2016 AND OTHERS 5 NON-APPEARANCE ON THAT DAY. THEREFORE, THERE IS NO JUSTIFICATION FOR LEVYING THE PENALTY U/S 271(1)(B) OF THE ACT. SECONDLY, IN THIS MATTER, THE ASSESSMENTS HAVE BEEN COMPLETED U/S 143(3) OF THE ACT, THEREFOR E, NO PENALTY CAN BE LEVIED IF THE ASSESSMENTS HAVE BEEN COMPLETED U/S 143(3) A ND THERE IS SUBSEQUENT COMPLIANCES IN THE ASSESSMENT PROCEEDINGS WAS CONSI DERED AS GOOD COMPLIANCES AND DEFAULT COMMITTED EARLIER WERE IGNO RED. THEREFORE, PENALTY U/S 271(1)(B) WAS DELETED BY VARIOUS TRIBUNALS. IN THE CASE OF AKHIL BHARTIYA PARTHMIK SHMSHAK SANGH BHAWAN TRUST VS. ADIT (2008) 115 TTJ 419 (DEL), IT WAS HELD THAT WHERE THE ASSESSEE HAD NOT COMPLIED W ITH NOTICE U/S 142(1) BUT ASSESSMENT ORDER WAS PASSED U/S 143(3) AND NOT U/S 144, THAT MEANT THAT SUBSEQUENT COMPLIANCE IN ASSESSMENT PROCEEDINGS WAS CONSIDERED AS GOOD COMPLIANCE AND DEFAULTS COMMITTED EARLIER WERE IGNO RED BY THE ASSESSING OFFICER, THEREFORE, LEVY OF PENALTY U/S 271(1)(B) O F THE ACT WAS NOT JUSTIFIED. THUS, WE SET ASIDE THE ORDERS OF THE REVENUE AUTHOR ITIES AND DELETE THE LEVY OF PENALTY U/S 271(1)(B) OF THE ACT IN THESE APPEALS. 6. IN RESULT, ALL THE APPEALS OF THE ASSESSEES ARE ALLOWED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 23/11/2016. SD/- SD/- (O.P MEENA) (D.T. GARASIA) (ACCOUNTANT MEMBER) JUDICIAL MEM BER DATED: 23.11.2016