BASHEER SALEEM AHAMED, CHENNAI V. ITO NON CORPORATE WARD 8(1), CHENNAI

ITA 1499/CHNY/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 3465 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-11-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2015-2016
• Appeal Filed On: 13-05-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: J. C.I.T
• Keywords: Non compliance; Set aside
• Section: 43

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: CHENNAI . . . , , $ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI S.JAYARAMAN, ACCOUNTANT MEMBER ./ ITA NO.1499 & 1500/CHNY/2019 % % /ASSESSMENT YEAR: 2015-16 & 2015-16 SHRI BASHEER SALEEM AHAMED , SHOP NO.F-43,PERIYAR VEGETABLE MARKET, KOYAMBEDU, CHENNAI 600 092. VS. THE INCOME TAX OFFICER, NON-CORPORATE WARD 8(1), CHENNAI. [ PAN: EXDPS 4193 G ] ( ( /APPELLANT) ( )*( /RESPONDENT) ( + / APPELLANT BY : MR.I.DINESH,ADVOCATE )*( + /RESPONDENT BY : MR.P.MUTHUSHANKAR,J. C.I.T, D.R + /DATE OF HEARING : 01.10.2019 + /DATE OF PRONOUNCEMENT : 08.11.2019 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER : BOTH THE APPEALS OF THE ASSESSEE ARE DIRECTED AGAI NST THE RESPECTIVE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-9, CHENNAI, DATED 31.01.2019, AND PERTAIN TO THE ASSES SMENT YEAR 2015-16. ITA NOS.1499, 1500/CHNY/2019 :- 2 -: SINCE COMMON ISSUE ARISES FOR CONSIDERATION IN BOTH THE APPEALS, WE HEARD THEM TOGETHER AND DISPOSING OF THE SAME BY THIS COM MON ORDER. FIRST WE TAKE UP THE ASSESSEES QUANTUM APPEAL IN I .T.A.NO.1499/CHNY/2019. 2. MR.I.DINESH, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AS SESSEE IS A WHOLESALE VEGETABLE AND FRUIT MERCHANT IN KOYAMBE DU MARKET, CHENNAI. THE ASSESSING OFFICER FOUND THAT THE TOTAL GROSS RE CEIPT OF THE ASSESSEE WAS RS.1,47,99,185/-. THE LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT OUT OF THE TOTAL RECEIPTS OF RS.1,47,99,185/-, THE ASSE SSEE WAS A CONSIGNER IN RESPECT OF CONSIGNMENT SALES TO AN EXTENT OF RS.81, 35,500/-. THEREFORE, THE CONSIGNMENT SALES TO AN EXTENT OF RS.81,35,500/- CA NNOT BE INCLUDED IN THE TOTAL TURNOVER. THIS FACT WAS NOT CONSIDERED EITHER BY THE ASSESSING OFFICER OR BY THE LD.CIT(A). THEREFORE, THE LD. COUNSEL FOR TH E ASSESSEE SUBMITTED THAT THE MATTER MAY BE REMITTED BACK TO THE FILE OF ASSE SSING OFFICER. 3. WE HAVE HEARD MR.P.MUTHUSHANKAR, THE LD. DEPARTMENTAL REPRESENTATIVE. THE LD.DR ALSO ENDORSED THE SUBMIS SION OF LD.AR THAT THE RECEIPT OF RS.81,35,500/- WAS ON CONSIGNMENT SALE WAS NOT BROU GHT TO THE NOTICE OF ASSESSING OFFICER AS WELL AS LD.CIT(A). T HEREFORE, THEY HAVE NO OCCASION TO CONSIDER THE SAME. HENCE, TO BRING THE CORRECT FACTS ON RECORD, THE MATTER MAY BE REMITTED BACK TO THE FILE OF ASSESSIN G OFFICER. ITA NOS.1499, 1500/CHNY/2019 :- 3 -: 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THIS TRIBUNAL IS OF THE CONSIDERED OPINION WHETHER THE TOTAL RECEIPT OF RS.1,47,99,185/- INCLUDES THE RECEIPT OF RS.81,35,500/- NEEDS TO BE VERIFIED. MOREOVER, IT IS ALSO TO BE BROUGHT ON RECORD WHETHER THE RECEIPT OF RS.81,35,5 00/- WAS FOR CONSIGNMENT SALES OR NOT. SINCE THESE FACTS ARE NOT EXAMINED B Y THE ASSESSING OFFICER, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE MATT ER NEEDS TO BE RE-EXAMINED BY THE ASSESSING OFFICER. ACCORDINGLY, THE ORDERS OF BOTH THE AUTHORITIES BELOW ARE SET ASIDE AND THE ENTIRE ISSUE RAISED BY THE ASSESSEE IN THIS APPEAL IS REMITTED BACK TO THE FILE OF ASSESSING OF FICER. THE ASSESSING OFFICER SHALL RE-EXAMINE THE MATTER AND BRING ON RE CORD THE FACTUAL ASPECTS AS INDICATED ABOVE AND THEREAFTER DECIDE TH E ISSUE IN ACCORDANCE WITH LAW AFTER GIVING A REASONABLE OPPORTUNITY TO T HE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF ASSESSEE IN I.T.A.NO.1 499/CHNY/2019 IS ALLOWED FOR STATISTICAL PURPOSES. 6. NOW, COMING TO ASSESSEES PENALTY APPEAL IN I.T .A.NO.1500/CHNY/2019, MR.I.DINESH, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AS SESSING OFFICER LEVIED PENALTY OF RS.10,000/- U/S.271(1)(B) OF THE ACT FOR NON-COMPLYING OF NOTICE ISSUED U/S.143(2) OF THE ACT. HOWEVER, THE L D.CIT(A) ENHANCED THE PENALTY TO RS.30,000/-, INSTEAD OF RS.10,000/-. TH E CONTENTION OF THE ASSESSEE BEFORE THIS TRIBUNAL IS THAT NOTICE AS REQ UIRED U/S.250(2) OF THE ACT WAS NOT SERVED ON THE ASSESSEE. MOREOVER, BY INADVE RTENT MISTAKE, THE ITA NOS.1499, 1500/CHNY/2019 :- 4 -: ASSESSEE COULD NOT APPEAR BEFORE THE ASSESSING OFFI CER IN RESPONSE TO NOTICE ISSUED U/S.143(2) OF THE ACT. THEREFORE, THE LEVY O F PENALTY FOR NON COMPLIANCE OF NOTICE ISSUED U/S.143(2) OF THE ACT MAY NOT BE J USTIFIED. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT AS THE ASSESSEE, WHO IS ONLY A VEGETABLE VENDOR, IS NOT AWARE OF THE STATUTORY OBLIGATIONS, THEREFOR E, HE PLEADED THAT A LENIENT VIEW MAY BE TAKEN. WE HAVE HEARD MR.P.MUTHUSHANKAR, THE LD. DEPARTMENTAL REPRESENTATIVE. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS NOT DISPUTED THAT THE ASSESSEE IS A VEGETABLE VENDOR AND THE ASSESSEE COULD NOT APPEAR BEFORE THE ASSESSING OFFICER DUE TO AN ADVERTENT MI STAKE IS NOT IN DISPUTE. NO DOUBT, PENALTY U/S.271(1)(B) OF THE ACT IS TO ENFORCE THE ATTENDAN CE OF THE ASSESSEE BEFORE THE ASSESSING OFFICER. HOWEVER, WH EN THE ASSESSEE, LIKE VEGETABLE VENDORS, IS REQUIRED TO APPEAR BEFORE THE ASSESSING OFFICER BY ISSUANCE OF NOTICE U/S.143(2) OF THE ACT, THE ASSES SING OFFICER IS EXPECTED TO TAKE A LENIENT VIEW BY TAKING INTO CONSIDERATION TH E BACKGROUND IN WHICH THE ASSESSEE IS PLACED. THE VEGETABLE VENDOR LIKE ASSE SSEE MAY NOT HAVE ANY INTENTION TO EVADE THE NOTICE ISSUED BY THE ASSESSI NG OFFICER. AS RIGHTLY POINTED OUT BY THE LEARNED COUNSEL FOR THE ASSESSEE , INADVERTENT MISTAKE MAY NOT ATTRACT PENALTY U/S.271(1)(B) OF THE ACT. ACCO RDINGLY THE ORDERS OF BOTH ITA NOS.1499, 1500/CHNY/2019 :- 5 -: THE AUTHORITIES BELOW ARE SET ASIDE AND PENALTY IMP OSED U/S.271(1)(B) OF THE ACT IS DELETED. 8. IN THE RESULT, THE APPEAL OF ASSESSEE IN I.T.A.N O.1500/CHNY/2019 IS ALLOWED. 9. TO SUM UP THE RESULT, THE QUANTUM APPEAL OF ASS ESSEE IN I.T.A.NO.1499/CHNY/2019 IS ALLOWED FOR STATISTICAL PURPOSES ALLOWED AND THE PENALTY APPEAL OF ASSESSEE IN I.T.A.NO.1500/CHNY/20 19 IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 08 TH NOVEMBER, 2019 IN CHENNAI. SD/- SD/- ( ) (S. JAYARAMAN) /ACCOUNTANT MEMBER ( . . . ) (N.R.S. GANESAN) /JUDICIAL MEMBER /CHENNAI, 1 /DATED: 08 TH NOVEMBER, 2019. K S SUNDARAM + )23 43 /COPY TO: 1. ( /APPELLANT 4. 5 /CIT 2. )*( /RESPONDENT 5. 3 ) /DR 3. 5 ( ) /CIT(A) 6. % /GF