Shri Hemant Kumar Soni, Bhopal V. THE DCIT CENTRAL-1, Bhopal

ITA 1367/IND/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 5839 (ITAT-INDORE)
• Duration Of Justice: 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 26-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED
• Assessee Lawyers: N D PATWA S
• Keywords: Reasonable cause; Non compliance
• 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 SHRI HEMANT KUMAR SONI 8 TO 14 SHRI PURSHOTTAM DAS SONI 15 TO 21 SHRI RAJEEV SONI 22 TO 28 SHRI SWAYAM SONI 29 TO 35 SHRI ANSHUL KUMAR SONI 1 TO 7 .../ I.T.A. NOS.1361 TO 1367/IND/2016 / A.YS. : 2008 - 09 TO 2014 - 15 8 TO 14 .../ I.T.A. NOS. 1368 TO 1374 /IND/2016 / A.YS. : 20 08 - 09 TO 2014 - 15 15 TO 21 .../ I.T.A. NOS. 1375 TO 1381 /IND/2016 / A.YS. : 2008 - 09 TO 2014 - 15 22 TO 28 .../ I.T.A. NOS. 1382 TO 1388 /IND/2016 / A.YS. : 2008 - 09 TO 2014 - 15 29 TO 35 .../ I.T.A. NOS. 1389 TO 1395 /IND/2016 / A.YS. : 2008 - 09 TO 2014 - 15 36 TO 42 .../ I.T.A. NOS.1 396 TO 1402 /IND/2016 / A.YS. : 2008 - 09 TO 2014 - 15 43 TO 49 .../ I.T.A. NOS. 1403 TO 1 409 /IND/2016 / A.YS. : 2008 - 09 TO 2014 - 15 50 TO 56 .../ I.T.A. NOS.1 410 TO 1416/ IND/2016 / A.YS. : 2008 - 09 TO 2014 - 15 57 TO 63 .../ I.T.A. NOS.1 417 TO 1423 /IND/2016 / A.YS. : 2008 - 09 TO 2014 - 15 64 TO 70 .../ I.T.A. NOS. 1424 TO 1430 /IND/2016 / A.YS. : 2008 - 09 TO 2014 - 15 71 TO 77 .../ I.T.A. NOS. 1431 TO 1437 /IND/2016 / A.YS. : 2008 - 09 TO 2014 - 15 78 TO 84 .../ I.T.A. NOS.1 438 TO 1444 /IND/16 / A.YS. : 2008 - 09 TO 2014 - 15 85 TO 91 .../ I.T.A. NOS. 1445 TO 1451 /IND /2016 / A.Y. : 2008 - 09 TO 2014 - 15 92 TO 98 1452 TO 1458/IND/2016 / A.YS. : 2008 - 09 TO 2014 - 15 99 TO 105 .../ I.T.A. NOS. 1459 TO 1465 /IND/2016 / A.YS. : 2008 - 09 TO 2014 - 15 SHRI HEMANT KUMAR SONI & ORS. I.T.A.NOS.1361/IND/2016 TO 1367/IND/2016 ETC. A.Y.2008-09 TO 2014-15 PAGE 2 OF 10 36 TO 42 SHRI SUNIL KUMAR SONI 43 TO 49 SHRI ANITA SONI 50 TO 56 SHRI NEETA SONI 57 TO 63 MS.MEERA SONI 64 TO 70 SHRI RAMESH KUMAR SAHU 71 TO 77 SHRI RAHUL SAHU 78 TO 84 RUCHI SAHU 85 TO 91 YASHOWARDHAN JAIN 92 TO 98 SEEMA JAIN 99 TO 105 AG8 VENTURES LIMITED (APPELLANTS) VS. DY.CIT,CENTRAL I, BHOPAL (RESPONDENT) / APPELLANT BY SHRI ASHISH GOYAL AND SHRI N. D. PATWA, ADVOCATES / RESPONDENT BY SHRI MOHD. JAVED, SR. DR DATE OF HEARING 10.01.2017 # DATE OF PRONOUNCEMENT 16.01.2017 SHRI HEMANT KUMAR SONI & ORS. I.T.A.NOS.1361/IND/2016 TO 1367/IND/2016 ETC. A.Y.2008-09 TO 2014-15 PAGE 3 OF 10 / 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 07.10.2016 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. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE SEARCH IN THE CASE OF THE ASSESSEE AND GROUP HAD TAKEN PLACE ON 29.01.2014. AFTER THAT NOTICES WERE ISSUED BY THE A O U/S 142(1) OF THE ACT DATED 30.09.2015 FIXING THE DATE OF HEARING FOR 15.10.2015 TO SUBMIT THE REQUIRED INFORMATION/D OCUMENTS AS PER THE QUESTIONNAIRE ALONGWITH THE BOOKS OF ACCO UNTS. IT WAS SPECIFICALLY MENTIONED IN THE NOTICE THAT FAILUR E TO COMPLY WITH THE NOTICE WOULD LEAD TO IMPOSITION OF PENALTY U /S 271(1)(B) FOR RS. 10,000/-. HOWEVER, IT WAS SEEN THA T ON THE SHRI HEMANT KUMAR SONI & ORS. I.T.A.NOS.1361/IND/2016 TO 1367/IND/2016 ETC. A.Y.2008-09 TO 2014-15 PAGE 4 OF 10 DATE FIXED FOR HEARING I.E. ON 15.10.2015 NO SUBMIS SIONS WERE FILED WITH REGARD TO THE NOTICE/QUESTIONNAIRE U/S 14 2(1) OF THE ACT. THEREFORE, SHOW CAUSE NOTICE FOR PENALTY WAS ISS UED BY THE AO TO THE ASSESSEE ON 07.12.2015 AS TO WHY PENALTY S HOULD NOT BE LEVIED U/S 271(1)(B) OF THE ACT FOR NON COMPLIAN CE TO NOTICE U/S 142(1) DATED 15.10.2015. THE DATE OF HEARING WAS FIXED FOR 15.12.2015. HOWEVER, AGAIN NO REPLY/SUBMISSIONS WER E FILED BY THE ASSESSEE ON OR BEFORE THE DATE OF HEARING, A LSO, NO REASON/EXPLANATION WAS GIVEN BY THE ASSESSEE FOR NON - COMPLIANCE ON THE SAID DATE. THEREFORE, THE AO LEVI ED PENALTY U/S 271(1)(B) OF THE INCOME-TAX ACT, 1961, FOR RS. 10,000/- ON 04.01.2016, FOR NON COMPLIANCE TO NOTICE U/S 142(1) DATED 15.10.2015 FOR EACH ASSESSMENT YEAR FROM 2008-09 TO 2014-15 4. THE LD. CIT(A) DISMISSED THE APPEALS HOLDING THA T THE CASE LAWS RELIED UPON BY THE ASSESSEE ARE CONTRADICT ORY IN NATURE AND DO NOT SUPPORT THE CASE OF THE ASSESSEE. IN THIS CASE, THE ASSESSEE HAS NOT COMPLIED WITH THE NOTICE/QUESTIONNAIRE U/S 142(1) OF THE ACT DATED 15 .10.2015. IT SHRI HEMANT KUMAR SONI & ORS. I.T.A.NOS.1361/IND/2016 TO 1367/IND/2016 ETC. A.Y.2008-09 TO 2014-15 PAGE 5 OF 10 CANNOT BE SAID THAT THERE WAS REASONABLE CAUSE WITH T HE ASSESSEE, WHICH PREVENTED HIM TO COMPLY WITH THE STAT UTORY NOTICE. THE ASSESSEE HAS DELIBERATELY TRIED TO DELA Y THE ASSESSMENT PROCEEDINGS BEFORE THE AO IN ORDER TO CR EATE HINDRANCES FOR THE INVESTIGATION. THE AO IS THE INV ESTIGATOR AS WELL AS PROSECUTOR AND ADJUDICATOR IN THE TAX ASSESS MENT PROCEEDINGS. IT IS THE DUTY OF THE ASSESSEE TO FACI LITATE THE PROCESS OF VERIFICATION AND INVESTIGATION TO SUPPOR T ITS CREDENTIALS. THE AO IS BOUND BY LAW TO COMPLETE ASSE SSMENT PROCEEDINGS AS PER THE LIMITATIONS OF THE ACT. DELI BERATE DELAYING TACTICS DURING THE COURSE OF ASSESSMENT PR OCEEDINGS HAMPER THE WORK OF THE OFFICE. THE LD. CIT(A) CONFIR MED THE PENALTY OF RS. 10,000/- IMPOSED BY THE AO U/S 271(1 )(B) OF THE INCOME-TAX ACT, 1961, FOR EACH ASSESSMENT YEAR FROM ASSESSMENT YEAR 2008-09 TO ASSESSMENT YEAR 2014-15 IN THE CASE OF ALL THE ASSESSEES. 5. BEFORE US, THE LEARNED COUNSEL FOR THE ASSES SEES SUBMITTED THAT IN ALL THESE APPEALS, THE FACTS AND THE ISSUE SHRI HEMANT KUMAR SONI & ORS. I.T.A.NOS.1361/IND/2016 TO 1367/IND/2016 ETC. A.Y.2008-09 TO 2014-15 PAGE 6 OF 10 INVOLVED ARE IDENTICAL AND, THEREFORE, HE WILL BE AR GUING THE FACTS IN THE CASE OF SHRI HEMANT KUMAR SONI. THE AR SUBMITTED THAT NOTICE U/S 142(1) DATED 30.9.2015 IN ALL 30 CASES & GROUP WAS RECEIVED ON 09.10.2015, TO BE COM PLIED ON 15.10.2015, WHICH WAS PRACTICALLY IMPOSSIBLE TO COMPL Y WITH ALL DETAILS IN SHORT SPAN OF 7 DAYS. HOWEVER, SUBSE QUENT NOTICES DATED 17.12.2015 TO 24.12.2015 WERE DULY COMPLIED AN D ASSESSMENT WAS FRAMED U/S 143(3). FURTHER, SHERI D.S .TIWARI, AR OF THE ASSESSEE HAD VERBALLY REQUESTED TIME FOR FILING DETAILS. THEREFORE, THERE WAS NO DELAYING TACTICS TO HAMPER INVESTIGATION. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT IT IS HELD BY THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF AKHIL BHARTIYA PRATHMIK SHMSHAK SANGH BHAWAN TRUST V S. ASSISTANT DIRECTOR OF INCOME TAX; (2008) 115 TTJ 41 9(DEL) THAT WHERE THE ASSESSEE HAD NOT COMPLIED WITH NOTICE U/S 1 42(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 DE FAULTS COMMITTED EARLIER WERE IGNORED BE ASSESSING OFFICER AND SHRI HEMANT KUMAR SONI & ORS. I.T.A.NOS.1361/IND/2016 TO 1367/IND/2016 ETC. A.Y.2008-09 TO 2014-15 PAGE 7 OF 10 THEREFORE, LEVY OF PENALTY U/S 271(1)(B) WAS NOT JUS TIFIED. THE LEARNED COUNSEL FURTHER STATED THAT VERY RECENTLY, THIS BENCH OF TRIBUNAL IN THE CASES OF VINIT CHOUHAN & OTHERS IN ITA NO. 1061 TO 1181 HAS DELETED THE PENALTIES ON THE ABSOL UTE IDENTICAL FACTS. IN THAT CASE ALSO THE NOTICES DATE D 30.09.2015 WERE SERVED ASKING THE ASSESSEE TO FILE THE DETAILS AND THE COUNSEL OF THE ASSESSEE SHRI RAJENDRA SHARMA ATTEND ED AND PERSONALLY REQUESTED FOR THE TIME AND THE TRIBUNAL DELETED THE PENALTY ON THE GROUND THAT THE ASSESSMENTS WERE COM PLETED U/S 143(3) AFTER CONSIDERING ALL THE DETAILS SUBMIT TED BY THE ASSESSEE AND AS SUCH NO PENALTY U/S 271(1)(B) COUL D BE LEVIED. HE RELIED UPON THE DECISION IN THE CASE OF AKHIL B HARTIYA SHIKSHA SANGH BHAWAN VS ACIT 115 TTJ 419 AND PARMESHWARI TEXTILES VS ITO 92 TTJ PAGE 764. 6 . ON THE OTHER HAND, LD. DR RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES AND CITED SOME DECISIONS OF THE TRIBUNALS. 7. WE HAVE HEARD RIVAL CONTENTIONS OF BOTH THE PART IES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND FROM THE SHRI HEMANT KUMAR SONI & ORS. I.T.A.NOS.1361/IND/2016 TO 1367/IND/2016 ETC. A.Y.2008-09 TO 2014-15 PAGE 8 OF 10 ASSESSMENT ORDERS IN ALL THESE GROUP APPEALS THAT THE ASSESSMENTS HAVE BEEN COMPLETED U/ S 143(3) OF THE IT. ACT. WE FIND THAT THE ASSESSING OFFICER HAS LEVIED PENALTY 271(1)(B) FOR NON-APPEARANCE ON 15.10.2015. AS PER LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE, THE ASSESSEES' COUNSEL APPEARED AND STATED CATEGORICALLY THAT HE APPEARED FOR SEEKING TIME. THE COUNSEL REGULARLY ATTENDED THE PROCEEDING S AND THE ASSESSMENTS HAVE BEEN FRAMED U/ S 143(3) AND NOT U/ S 144. WE FIND THAT THIS WAS THE FIRST NOTICE FOR COMPLIANCE AND SINCE THE VOLUMINOUS RECORDS AND PAPERS WERE REQUIRED TO BE SCRUTINIZED AND INDIVIDUALLY IN EACH CASE, THE APPROPRIATE REPL IES WERE TO BE FILED, THE ASSESSEE PRAYED FOR THE TIME TO SUBMIT THE REPLY AND ULTIMATELY SUBMITTED ALL THE NECESSARY REPLIES AND COOPERATED WITH THE DEPARTMENT. WE ARE OF THE VIEW THAT ASSESSEES HAD REASONABLE CAUSE FOR NON-APPEARANCE ON THAT DAY. THEREFORE, THERE IS NO JUSTIFICATION FOR LEVYING TH E SHRI HEMANT KUMAR SONI & ORS. I.T.A.NOS.1361/IND/2016 TO 1367/IND/2016 ETC. A.Y.2008-09 TO 2014-15 PAGE 9 OF 10 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, THEREFORE, NO PENALTY CAN BE LEV IED IF THE ASSESSMENTS HAVE BEEN COMPLETED U/S 143(3) AND THERE IS SUBSEQUENT COMPLIANCES IN THE ASSESSMENT PROCEEDINGS WAS CONSIDERED AS GOOD COMPLIANCES AND DEFAULT COMMITTED EARLIER WERE IGNORED. 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 TH E ASSESSEE HAD NOT COMPLIED WITH NOTICE U/S142(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 IGNORED BY THE ASSESSING OFFICER, THEREFORE, LEVY OF PENALTY U/S 271(1)(B) OF THE ACT WAS NOT JUSTIFIED. THE CASE LAWS CITED BY LD. SHRI HEMANT KUMAR SONI & ORS. I.T.A.NOS.1361/IND/2016 TO 1367/IND/2016 ETC. A.Y.2008-09 TO 2014-15 PAGE 10 OF 10 DEPARTMENTAL REPRESENTATIVE ARE DISTINGUISHABLE ON FACTS, HENCE, INAPPLICABLE TO THIS CASE. WE ALSO NO TED THAT IN THE VINIT CHOUHAN GROUP 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 S ET ASIDE. THEREFORE, RESPECTFULLY FOLLOWING THE SAID ORDER AND FACTS, WE SET ASIDE THE ORDERS OF THE REVENUE AUTHORITIES AND DELETE THE LEVY OF PENALTY U/S 271(1)(B) OF THE ACT IN ALL THESE APPEALS. 8. IN RESULT, ALL THE APPEALS OF THE ASSESSEES ARE ALLOWED. THE ORDER HAS BEEN PRONOUNCED IN OPEN COURT ON THE 16 TH JANUARY, 2017. SD/- (..) (D.T.GARASIA) JUDICIAL MEMBER SD/- (..) (O.P.MEENA) ACCOUNTANT MEMBER ' / DATED : 16 JANUARY, 2017.