Sri Saroj Kumar Mishra, Bhubaneswar V. Addl. CIT, Bhubaneswar

ITA 135/CTK/2010

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0755 (ITAT-CUTTACK)
• Duration Of Justice: 10 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-03-2011
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 15-04-2010
• Court: TRIBUNAL
• Department Lawyers: S C MOHANTY
• Assessee Lawyers: B R PATNAIKM K NANDA ARS

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK ( ) BEFORE . . , , HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER. /AND . . . , S HRI K.S.S.PRASAD RAO, JUDICIAL MEMBER / I.T.A.NO. 135/CTK/2010 / ASSESSMENT YEAR 2006 - 07 SRI SAROJ KUMAR MISHRA, 162 (1 ST FLOOR), BAPUJI NAGAR,BHUBANESWAR 751 009 PAN: ABKPM8495J - - - VERSUS - ADDL.CIT, RANGE 2, BHUBANESW AR. ( /APPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI B.R.PATNAIK/M.K.NANDA, ARS / FOR THE RESPONDENT: / SHRI S.C.MOHANTY, DR / ORDER . . . , SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER . THE ASSESSEE HAS FILED THIS APPEAL AGAINST THE ORDER DT.7.1.2010 CONFIRMING PENALTY OF 10,000 LEVIED U/S.272A(1)(C) OF THE INCOME - TAX AT,1961 FOR THE ASSESSMENT YEAR 2006 - 07. 2. THE ASSESSEE IS THE PROPRIETOR OF ASIATI C AGENCIES WHEREIN SMT. MAMATA MOHANTY WAS AN EMPLOYEE. DURING THE ASSESSMENT PROCEEDINGS IN THE CASE OF SMT.MAMATA MOHANTY FOR THE ASSESSMENT YEAR 2006 - 07, THE ASSESSEE WAS ISSUED WITH A SUMMON U/S.131 REQUIRING HIM TO APPEAR BEFORE HIM ON 29.10.2008 ALO NG WITH CERTAIN DETAILS AND DOCUMENTS. BUT, THE ASSESSEE COULD NOT APPEAR BEFORE THE ASSESSING OFFICER ON THE APPOINTED DATE. HOWEVER, HE APPEARED BEFORE THE ITO ON 27.11.2008 I.E., AFTER ONE MONTH FROM THE STIPULATED DATE. THE DELAY IN APPEARING BEFORE TH E ITO WAS EXPLAINED BY THE ASSESSEE THAT DURING THAT PERIOD HE WAS OUT OF STATION. THE LEARNED ADDL.CIT DID NOT ACCEPT SUCH EXPLANATION TO BE REASONABLE AND THEREFORE, HE LEVIED PENALTY OF 10,000 U/S.272A(1)(C) OF THE ACT AND THE LEARNED CIT(A) CONFIRMED THE SAME IN APPEAL. 3. THE LEARNED AR OF THE ASSESSEE SUBMITTED BEFORE US THAT DUE TO ILLNESS, IN RESPONSE TO THE SUMMON U/S.131(1), THE ASSESSEE COULD NOT APPEAR ON THE APPOINTED 2 ITA NO.135/CTK/2010 DATE. HOWEVER, ON 26.11.2008 THE AR OF THE ASSESSEE MET THE ASSESSING OFFIC ER ON 26.11.2008 IN CONNECTION WITH THE PERSONAL APPEARANCE OF THE ASSESSEE AND THE ASSESSING OFFICER FIXED ANOTHER DATE I.E., 27.11.2008, ON WHICH DATE THE ASSESSEE APPEARED AND HIS STATEMENT WAS RECORDED. THE ASSESSEE WAS NEVER INTENTIONALLY AVOIDED APPE ARANCE AND THEREFORE, THE LEVY OF PENALTY IS NOT JUSTIFIED. THE LEARNED DR, ON THE OTHER HAND, SUPPORTED THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. TRUE IT IS THAT IN RESPONSE TO SUMM ON ISSUED U/S.131(1) THE ASSESSEE COULD NOT APPEAR, WHICH WAS EXPLAINED TO BE DUE TO SUDDEN ILLNESS. BUT THE FACT REMAINS THAT THE ASSESSEE APPEARED ON 27.11.2008 AND HIS STATEMENT WAS RECORDED. WE FIND THAT FOR NON - APPEARANCE OF THE ASSESSEE ON 23.10.2008 , THE ADDL.CIT HAS LEVIED THE IMPUGNED PENALTY . LAW IS WELL SETTLED THAT AN ORDER IMPOSING PENALTY FOR FAILURE TO CARRY OUT A STATUTORY OBLIGATION IS THE RESULT OF QUASI - CRIMINAL PROCEEDING AND PENALTY WILL NOT ORDINARILY BE IMPOSED UNLESS THE PARTY OBLIGE D EITHER ACTED DELIBERATELY IN DEFIANCE OF LAW OR WAS GUILTY OF CONDUCT CONTUMACIOUS OR DISHONEST OR ACTED IN CONSCIOUS DISREGARD OF ITS OBLIGATION. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, WE DO NOT FIND ANY REASO N FOR LEVY OF PENALTY U/S.272A(1)(C) OF THE ACT PARTICULARLY WHEN THE ASSESSEE APPEARED ON 27.11.2008 AND HIS STATEMENT WAS RECORDED AND AS SUCH, WE ALLOW THE APPEAL OF THE ASSESSEE AND CANCEL THE PENALTY SO LEVIED. 5. IN THE RESULT, THE APPEAL OF THE ASSE SSEE IS ALLOWED. THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. ( . . ) , , (K.K.GUPTA), ACCOUNTANT MEMBER. ( . . . ) , (K.S.S.PRASAD RAO), JUDICIAL MEMBER ( ) D ATE: ( ), (H.K.PADHEE), SENIOR.PRIVATE SECRETARY. 3 ITA NO.135/CTK/2010 - COPY OF THE ORDER FORWARDED TO: 1 . / THE APPELLANT : 2 / THE RESPONDENT: 3 . / THE CIT, 4 . ( )/ THE CIT(A), 5 . / DR, CUTTACK BENCH 6 . GUARD FILE . / TRUE COPY, / BY ORDER, [ ] SENIOR PRIVATE SECRETARY