M/S Signature Developers, Bhopal V. THE ACIT (CENTRAL) II, Bhopal

ITA 1299/IND/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5450 (ITAT-INDORE)
• Duration Of Justice: 1 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 04-11-2016
• 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

, , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE .., .., % BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER 1 TO 7 .../ I.T.A. NOS.1182 TO 1188/IND/201 6 / A.YS. : 2008 - 09 TO 2014 - 15 8 TO 12 .../ I.T.A. NOS. 1189 TO 11 93 / IND/2016 / A.YS. : 20 10 - 11 TO 2014 - 15 13 TO 15 .../ I.T.A. NOS.11 94 TO 11 96 /IND/201 6 / A.YS. : 20 12 - 13 TO 2014 - 15 16 TO 19 .../ I.T.A. NOS.11 97 TO 1200 /IND/201 6 / A.YS. : 20 11 - 12 TO 2014 - 15 20 TO 26 .../ I.T.A. NOS. 1201 TO 1 207 /IND/201 6 / A.YS. : 2008 - 09 TO 2014 - 15 27 TO 31 .../ I.T.A. NOS. 1208 TO 1212 /IND/201 6 / A.YS. : 20 10 - 11 TO 2014 - 15 32 TO 38 .../ I.T.A. NOS. 1213 TO 1219 /IND/201 6 / A.YS. : 2008 - 09 TO 2014 - 15 39 TO 45 .../ I.T.A. NOS. 1220 TO 1226 /IND/201 6 / A.YS. : 2008 - 09 TO 2014 - 15 46 TO 52 .../ I.T.A. NOS. 1227 TO 1233 /IND/201 6 / A.YS. : 2008 - 09 TO 2014 - 15 53 TO 59 .../ I.T.A. NOS. 1234 TO 1240 /IND/201 6 / A.YS. : 2008 - 09 TO 2014 - 15 60 TO 66 .../ I.T.A. NOS. 1241 TO 1247 /IND/201 6 / A.YS. : 2008 - 09 TO 2014 - 15 67 TO 73 .../ I.T.A. NOS. 1248 TO 1254/IND/16 / A.YS. : 2008 - 09 TO 2014 - 15 74 .../ I.T.A. NOS. 1255 /IND/201 6 / A.Y. : 2014 - 15 75 TO 78 .../ I.T.A. NOS. 1258 TO 1261 /IND/201 6 / A.YS. : 2008 - 09 TO 2014 - 15 79 TO 85 .../ I.T.A. NOS. 1262 TO 1268 /IND/201 6 / A.YS. : 2008 - 09 TO 2014 - 15 86 TO 89 .../ I.T.A. NOS. 1269 TO 1272 /IND/201 6 / A.YS. : 2011 - 12 TO 2014 - 15 90 TO 96 .../ I.T.A. NOS.1 273 TO 1279 /IND/201 6 / A.YS. : 2008 - 09 TO 2014 - 15 97 TO 103 .../ I.T.A. NOS. 1280 TO 1286 /IND/201 6 / A.YS. : 2008 - 09 TO 2014 - 15 104 TO 109 .../ I.T.A. NOS.1 287 TO 1292 / IND/2016 / A.YS. : 200 9 - 10 TO 2014 - 15 110 & 111 .../ I.T.A. NOS. 1293 & 1294 /IND/201 6 / A.YS. : 20 13 - 14 TO 2014 - 15 112 TO 114 .../ I.T.A. NOS. 1295 TO 1297 /IND/201 6 / A.YS. : 2008 - 09 TO 2014 - 15 115 TO 117 .../ I.T.A. NOS. 1298 TO 1300 /IND/201 6 / A.YS. : 2008 - 09 TO 2014 - 15 SMT.JYOTSNA CHOUHAN AND OTHERS I.T.A.NOS. 1182 TO 1188/IND/2016 ETC. PAGE 2 OF 8 1 TO 7 SMT.JYOTSNA CHOUHAN 8 TO 12 M/S.SAINATH REALITY 13 TO 15 SIGNATURE COLONISERS (P) LIMITED, 16 TO 19 SIGNATURE DEVELOPER & BUILDER 20 TO 26 SAINATH DEVELOPERS 27 TO 31 SIGNATURE INFRASTRUCTURE 32 TO 38 MADHU KHILWANI 39 TO 45 OM PRAKASH GUPTA 46 TO 52 OM PROMOTERS & DEVELOPERS (P)LTD. 53 TO 59 ALAMAI RAJU 60 TO 66 RAJU PERUMAL 67 TO 73 SAINATH BUILDERS & COLONISERS 74 SAPPHIRE BUILDERS (P) LIMITED 75 TO 78 ULTIMATE BUILDERS 79 TO 85 ULTIMATE CONSTRUCTION 86 TO 89 PALASH ASSOCIATES 90 TO 96 SAINATH BUILDERS 97 TO 103 MANOJ SEWAKRAM LAHOTI 104 TO 109 SAINATH INFRASTRUCTURE (P) LIMITED 110 & 111 SIGNATURE BUILDERS & COLONISERS 112 TO 114 ULTIMATE CONSTRUCTION INDIA (P) LIMITED 115 TO 117 SIGNATURE DEVELOPER (APPELLANTS) VS. ACIT,CENTRAL II, BHOPAL (RESPONDENT) / APPELLANT BY SHRI S.S.DESHPANDE, C.A. / RESPONDENT BY SHRI MOHD. JAVED, SR. DR DATE OF HEARING 05.12.2016 # DATE OF PRONOUNCEMENT 06.12.2016 SMT.JYOTSNA CHOUHAN AND OTHERS I.T.A.NOS. 1182 TO 1188/IND/2016 ETC. PAGE 3 OF 8 / O R D E R PER BENCH ALL THESE APPEALS HAVE BEEN FILED BY DIFFERENT ASSE SSEES AGAINST DIFFERENT ORDERS OF THE LEARNED CIT(A)-3, B HOPAL DATED 08.08.2016 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 AS SESSMENT 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 AR GUING THE FACTS IN THE CASE OF SMT. JYOTSNA CHOUHAN. HE SUBMI TTED THAT THE ASSESSING OFFICER ISSUED NOTICE U/S 142(1) OF T HE ACT ON 30.9.2015 ASKING THE ASSESSEE TO FURNISH THE DETAIL S UPTO 29.10.2015 AND IN SOME CASES UPTO 30.10.2015. THE C OUNSEL OF THE GROUP, SHRI RAJENDRA SHARMA PERSONALLY APPEA RED AND VERBALLY REQUESTED A TIME FOR FILING THE DETAILS. S INCE, IN MORE THAN FORTY CASES, THE STEREOTYPE QUESTIONNAIRES WER E ISSUED, IT SMT.JYOTSNA CHOUHAN AND OTHERS I.T.A.NOS. 1182 TO 1188/IND/2016 ETC. PAGE 4 OF 8 REQUIRED TIME TO FILE THE NECESSARY DETAILS AS PER QUESTIONNAIRE. HE FURTHER SUBMITTED THAT VOLUMINOUS LOOSE PAPERS W ERE ALSO REQUIRED TO BE SCRUTINIZED AND AS SUCH, THE TIME WAS SOUGHT TO SUBMIT THE REPLY TO THE QUESTIONNAIRE. 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 ASSESSMENTS HAVE BEEN FRAMED ON THE BASIS OF INFORMATION SUBMITTED FROM TIME TO TIME. L D. AR SUBMITTED THAT SHRI RAJENDRA SHARMA, COUNSEL HAS AT TENDED THE OFFICE 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 DID NOT ATTEND ON THE SPE CIFIED DATE AND AS SUCH, THERE IS NO QUESTION OF ADJOURNMENT. HE SPECIFICALLY MENTIONED THAT NO ADJOURNMENT LETTER WA S RECEIVED ON THE SPECIFIED DUE DATE NOR THE ASSESSEE FURNISHE D ANY REASON OR NON-ATTENDANCE AND NON-COMPLIANCE ON THE SAID DATE. HE FURTHER ASSERTED THAT SHRI RAJENDRA SHARMA HAS NOT FURNISHED ANY LETTER OF AUTHORITY AND AS SUCH THE S UBMISSIONS SMT.JYOTSNA CHOUHAN AND OTHERS I.T.A.NOS. 1182 TO 1188/IND/2016 ETC. PAGE 5 OF 8 RECEIVED FROM SHRI RAJENDRA SHARMA IS IRRELEVANT. T HE AO, THEREFORE, LEVIED THE PENALTY FOR ALL THE ASSESSMEN T YEARS AT RS. 10,000/- PER YEAR FOR THE SAME ALLEGED DEFAULT FOR NON- COMPLIANCE ON THE SAME DATE. 4. THE LD. CIT(A) DISMISSED THE APPEALS HOLDING THA T THE ASSESSEE IS IN HABIT OF NON-COMPLIANCE AND HAS NOT COMPLIED WITH THE NOTICES ISSUED. THE LD. CIT(A) FURTHER OBSE RVED THAT IN CASE THE AO WAS NOT AVAILABLE, THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SHOULD HAVE FILED TH E PENALTY REPLY IN THE OFFICE. THE LD. CIT(A) CONCLUDED THAT DELIBERATE DELAYING TACTICS DURING THE COURSE OF ASSESSMENT PR OCEEDINGS HAMPER THE WORK OF OFFICER AND THE ASSESSEE HAS TRIE D TO OBSTRUCT THE ASSESSMENT PROCEEDINGS IN ORDER TO CRE ATE HINDRANCES FOR THE INVESTIGATION. 5. ON THE OTHER HAND, LD. DR RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES AND CITED SOME DECISIONS OF THE TRIBUNALS. 6. WE HAVE HEARD RIVAL CONTENTIONS OF BOTH THE PART IES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND F ROM THE SMT.JYOTSNA CHOUHAN AND OTHERS I.T.A.NOS. 1182 TO 1188/IND/2016 ETC. PAGE 6 OF 8 ASSESSMENT ORDERS IN ALL THESE GROUP APPEALS THAT T HE ASSESSMENTS HAVE BEEN COMPLETED U/S 143(3) OF THE I .T. ACT. WE FIND THAT THE ASSESSING OFFICER HAS LEVIED PENAL TY U/S 271(1)(B) FOR NON-APPEARANCE ON 30.10.2015. AS PER LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE, THE ASSE SSEES COUNSEL APPEARED AND STATED CATEGORICALLY THAT HE A PPEARED FOR SEEKING TIME. THE COUNSEL REGULARLY ATTENDED THE PR OCEEDINGS AND THE ASSESSMENTS HAVE BEEN FRAMED U/S 143(3) AND NOT U/S 144. WE FIND THAT THIS WAS THE FIRST NOTICE FOR COM PLIANCE AND SINCE THE VOLUMINOUS RECORDS AND PAPERS WERE REQUIR ED TO BE SCRUTINIZED AND INDIVIDUALLY IN EACH CASE, THE APPR OPRIATE REPLIES WERE TO BE FILED, THE ASSESSEE PRAYED FOR T HE TIME TO SUBMIT THE REPLY AND ULTIMATELY SUBMITTED ALL THE N ECESSARY REPLIES AND COOPERATED WITH THE DEPARTMENT. WE ARE O F THE VIEW THAT ASSESSEES HAD REASONABLE CAUSE FOR NON-APPEARA NCE 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 A CT, THEREFORE, NO PENALTY CAN BE LEVIED IF THE ASSESSME NTS HAVE SMT.JYOTSNA CHOUHAN AND OTHERS I.T.A.NOS. 1182 TO 1188/IND/2016 ETC. PAGE 7 OF 8 BEEN COMPLETED U/S 143(3) AND THERE IS SUBSEQUENT COMPLIANCES IN THE ASSESSMENT PROCEEDINGS WAS CONSID ERED AS GOOD COMPLIANCES AND DEFAULT COMMITTED EARLIER WERE IGNORED. THEREFORE, PENALTY U/S 271(1)(B) WAS DELETED BY VARI OUS TRIBUNALS. IN THE CASE OF AKHIL BHARTIYA PARTHMIK S HMSHAK SANGH BHAWAN TRUST VS. ADIT (2008) 115 TTJ 419 (DEL) , IT WAS HELD THAT WHERE THE ASSESSEE HAD NOT COMPLIED WITH NO TICE U/S 142(1) BUT ASSESSMENT ORDER WAS PASSED U/S 143(3) AN D NOT U/S 144, THAT MEANT THAT SUBSEQUENT COMPLIANCE IN ASSESSMENT PROCEEDINGS WAS CONSIDERED AS GOOD COMPLI ANCE AND DEFAULTS COMMITTED EARLIER WERE IGNORED BY THE A SSESSING OFFICER, THEREFORE, LEVY OF PENALTY U/S 271(1)(B) O F THE ACT WAS NOT JUSTIFIED. THE CASE LAWS CITED BY LD. DEPARTMEN TAL REPRESENTATIVE ARE DISTINGUISHABLE ON FACTS, HENCE, INAPPLICABLE TO THIS CASE. WE ALSO NOTE THAT IN THE ASSESSEES G ROUP CASES, AN ORDER IS PASSED IN A GROUP IN I.T.A.NOS. 1061 TO 1181/IND/2016 DATED 23.11.2016, IN WHICH SIMILAR SET OF FACTS THE PENALTY LEVIED U/S 271(1)(B) WAS SET-ASIDE. THER EFORE, RESPECTFULLY FOLLOWING THE SAID ORDER AND FACTS, WE S ET ASIDE THE SMT.JYOTSNA CHOUHAN AND OTHERS I.T.A.NOS. 1182 TO 1188/IND/2016 ETC. PAGE 8 OF 8 ORDERS OF THE REVENUE AUTHORITIES AND DELETE THE LE VY OF PENALTY U/S 271(1)(B) OF THE ACT IN ALL THESE APPEALS. 7. IN RESULT, ALL THE APPEALS OF THE ASSESSEES ARE ALLOWED. THE ORDER HAS BEEN PRONOUNCED IN OPEN COURT ON THE 6 TH DECEMBER, 2016. SD/- SD/- (..) (D.T.GARASIA) JUDICIAL MEMBER (..) (O.P.MEENA) ACCOUNTANT MEMBER ( / DATED : 6 TH DECEMBER, 2016. CPU*