Appeal details
Counselvise Citation
[2017] 130 COUNSELVISE.COM (IT) 5956 (ITAT-INDORE)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
23 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
18-01-2017
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
DB
Assessment Year
2012-2013
Appeal Filed On
26-12-2016
Judgement Text
MA BHAGWATI POWER P. LTD. I.T.A. NOS. 1466 TO 1513 OF 2016 1 , , 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 M/S. MA BHAGWATI POWER P. LTD., BHOPAL 8 TO 14 KARELI SUGAR MILLS P. LTD., NARSINGHPUR 15 TO 21 MA BHAGWATI SUGAR MILLS LTD., BHOPAL 22 TO 28 REVA KRIPA SUGAR P. LTD. BHOPAL 29 TO 33 SATYA PRAKASH RESORTS & HOTELS P. LTD. BHOPAL 34 TO 37 AAKRITI LEISURE & PLEASURE P. LTD. BHOPAL 38 TO 43 AAKRITI SUGAR P. LTD. BHOPAL 44 TO 46 AAKRITI EDUCARE P. LTD. BHOPAL 47 TO 48 AAKRITI SUGAR MILLS P. LTD. BHOPAL (APPELLANTS) VS. 1 TO 7 .../ I.T.A. NOS.1466 TO 1472/IND/2016 / A.YS. : 2008 - 09 TO 2014 - 15 8 TO 14 .../ I.T.A. NOS.1473 TO 1 479/IND/2016 / A.YS. : 2008 - 09 TO 2014 - 15 15 TO 21 .../ I.T.A. NOS. 1480 TO 1486 /IND/2016 / A.YS. : 2008 - 09 TO 2014 - 15 22 TO 28 .../ I.T.A. NOS. 1487 TO 1493/IND/2 016 / A.YS. : 2008 - 09 TO 2014 - 15 29 TO 33 .../ I.T.A. NOS. 1494 TO 1498 /IND/2016 / A.YS. : 20 1 0 - 11 TO 2014 - 15 34 TO 37 .../ I.T.A. NOS.1 499 TO 1502/ IND/2016 / A.YS. : 20 11 - 12 TO 2014 - 15 38 TO 43 .../ I.T.A. NOS.1 5 03 TO 1 508 /IND/2016 / A.YS. : 200 9 - 1 0 TO 2014 - 15 44 TO 46 .../ I.T.A. NOS. 1509 TO 1511 /IND/2016 / A.YS. : 20 12 - 13 TO 2014 - 15 47 TO 48 .../ I.T.A. NOS . 1512 TO 1513 /IND/2016 / A.YS. : 20 13 - 14 TO 2014 - 15 MA BHAGWATI POWER P. LTD. I.T.A. NOS. 1466 TO 1513 OF 2016 2 DY.CIT,CENTRAL I, BHOPAL (RESPONDENT) / APPELLANT BY SHRI N. D. PATWA, ADVOCATE / RESPONDENT BY SHRI MOHD. JAVED, SR. DR DATE OF HEARING 18.01.2017 # DATE OF PRONOUNCEMENT 18.01.2017 / 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, BHOPAL DATED 06.10. 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 ASSESSMENT YEAR IN THE CASES OF ALL THESE ASSE SSEES. 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. A FTER THAT NOTICES WERE ISSUED BY THE AO U/S 142(1) OF THE ACT DATED 30.09.2015 FI XING THE DATE OF HEARING FOR 15.10.2015 TO SUBMIT THE REQUIRED INFORMATION/DOCUM ENTS AS PER THE MA BHAGWATI POWER P. LTD. I.T.A. NOS. 1466 TO 1513 OF 2016 3 QUESTIONNAIRE ALONGWITH THE BOOKS OF ACCOUNTS. IT W AS SPECIFICALLY MENTIONED IN THE NOTICE THAT FAILURE TO COMPLY WITH THE NOTICE W OULD LEAD TO IMPOSITION OF PENALTY U/S 271(1)(B) FOR RS. 10,000/-. HOWEVER, IT WAS SEEN THAT ON THE DATE FIXED FOR HEARING I.E. ON 15.10.2015 NO SUBMISSIONS WERE FILED WITH REGARD TO THE NOTICE/QUESTIONNAIRE U/S 142(1) OF THE ACT. THEREFO RE, SHOW CAUSE NOTICE FOR PENALTY WAS ISSUED BY THE AO TO THE ASSESSEE ON 07. 12.2015 AS TO WHY PENALTY SHOULD NOT BE LEVIED U/S 271(1)(B) OF THE ACT FOR N ON COMPLIANCE TO NOTICE U/S 142(1) DATED 15.10.2015. THE DATE OF HEARING WAS FI XED FOR 15.12.2015. HOWEVER, AGAIN NO REPLY/SUBMISSIONS WERE FILED BY THE ASSESS EE ON OR BEFORE THE DATE OF HEARING, ALSO, NO REASON/EXPLANATION WAS GIVEN BY T HE 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 04.01.201 6, FOR NON COMPLIANCE TO NOTICE U/S 142(1) DATED 15.10.2015 FOR EACH ASSESSMENT YEA R 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 CONTRADICTORY IN NATURE AND DO NOT SUPPORT THE CASE OF THE ASSESSEE. IN THIS CASE, THE ASSESSEE HAS NOT COMPLI ED WITH THE NOTICE/QUESTIONNAIRE U/S 142(1) OF THE ACT DATED 15.10.2015. IT CANNOT B E SAID THAT THERE WAS REASONABLE CAUSE WITH THE ASSESSEE, WHICH PREVENTED HIM TO COMPLY WITH THE STATUTORY NOTICE. THE ASSESSEE HAS DELIBERATELY TRI ED TO DELAY THE ASSESSMENT MA BHAGWATI POWER P. LTD. I.T.A. NOS. 1466 TO 1513 OF 2016 4 PROCEEDINGS BEFORE THE AO IN ORDER TO CREATE HINDRA NCES FOR THE INVESTIGATION. THE AO IS THE INVESTIGATOR AS WELL AS PROSECUTOR AND AD JUDICATOR IN THE TAX ASSESSMENT PROCEEDINGS. IT IS THE DUTY OF THE ASSESSEE TO FACI LITATE THE PROCESS OF VERIFICATION AND INVESTIGATION TO SUPPORT ITS CREDENTIALS. THE A O IS BOUND BY LAW TO COMPLETE ASSESSMENT PROCEEDINGS AS PER THE LIMITATIONS OF TH E ACT. DELIBERATE DELAYING TACTICS DURING THE COURSE OF ASSESSMENT PROCEEDINGS HAMPER THE WORK OF THE OFFICE. THE LD. CIT(A) CONFIRMED THE PENALTY OF RS. 10,000/- IMPOSED BY THE AO U/S 271(1)(B) OF THE INCOME-TAX ACT, 1961, FOR ALL THE PRESENT ASSESSMENT YEARS 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 INVOLVED ARE IDENT ICAL AND, THEREFORE, HE WILL BE ARGUING THE FACTS IN THE CASE OF M/S. MA BHAGWATI P OWER P. LTD. THE AR SUBMITTED THAT NOTICE U/S 142(1) DATED 30.9.2015 IN ALL GROUP APPEALS WAS RECEIVED ON 09.10.2015, TO BE COMPLIED ON 15.10.2015, WHICH WAS PRACTICALLY IMPOSSIBLE TO COMPLY WITH ALL DETAILS IN SHORT SPAN OF 7 DAYS. HO WEVER, SUBSEQUENT NOTICES DATED 17.12.2015 TO 24.12.2015 WERE DULY COMPLIED AND ASS ESSMENT WAS FRAMED U/S 143(3). FURTHER, SHERI D.S.TIWARI, AR OF THE ASSESS EE HAD VERBALLY REQUESTED TIME FOR FILING DETAILS. THEREFORE, THERE WAS NO DELAYIN G TACTICS TO HAMPER INVESTIGATION. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT IT IS HELD BY THE DELHI BENCH MA BHAGWATI POWER P. LTD. I.T.A. NOS. 1466 TO 1513 OF 2016 5 OF THE TRIBUNAL IN THE CASE OF AKHIL BHARTIYA PRATH MIK SHMSHAK SANGH BHAWAN TRUST VS. ASSISTANT DIRECTOR OF INCOME TAX; (2008) 115 TTJ 419(DEL) THAT WHERE THE ASSESSEE HAD NOT COMPLIED WITH NOTICE U/S 142(1) BU T 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 COMPL IANCE AND DEFAULTS COMMITTED EARLIER WERE IGNORED BE ASSESSING OFFICER AND THEREFORE, LEVY OF PENALTY U/S 271(1)(B) WAS NOT JUSTIFIED. THE LEARNED COUNSE L FURTHER STATED THAT VERY RECENTLY, THIS BENCH OF TRIBUNAL IN THE CASES OF VI NIT CHOUHAN & OTHERS IN ITA NO. 1061 TO 1181 HAS DELETED THE PENALTIES ON THE ABSOL UTE IDENTICAL FACTS. IN THAT CASE ALSO THE NOTICES DATED 30.09.2015 WERE SERVED ASKIN G THE ASSESSEE TO FILE THE DETAILS AND THE COUNSEL OF THE ASSESSEE SHRI RAJEND RA SHARMA ATTENDED AND PERSONALLY REQUESTED FOR THE TIME AND THE TRIBUNAL DELETED THE PENALTY ON THE GROUND THAT THE ASSESSMENTS WERE COMPLETED U/S 143( 3) AFTER CONSIDERING ALL THE DETAILS SUBMITTED BY THE ASSESSEE AND AS SUCH NO PE NALTY U/S 271(1)(B) COULD BE LEVIED. HE RELIED UPON THE DECISION IN THE CASE OF AKHIL BHARTIYA SHIKSHA SANGH BHAWAN VS ACIT 115 TTJ 419 AND PARMESHWARI TEXTILE S VS ITO 92 TTJ PAGE 764. 6. ON THE OTHER HAND, LD. DR RELIED ON THE ORDERS O F THE REVENUE AUTHORITIES AND CITED SOME DECISIONS OF THE TRIBUNALS. MA BHAGWATI POWER P. LTD. I.T.A. NOS. 1466 TO 1513 OF 2016 6 7. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE PRESENT ISSUE HAS BEEN DECIDED BY THIS VERY BENCH IN THE GROUP APPEALS I.E. HEMANT KUMAR SONI AND OTHERS VIDE ORDER DATED 16.1.2017. THE PRESENT GROUP APPEALS AR E ALSO CONNECTED WITH THE GROUP APPEALS OF HEMANT KUMAR SONI AND OTHERS. VIDE ABOVE ORDER DATED 16.1.2017, WE HAVE DECIDED THE PRESENT ISSUE IN FAV OUR OF THE ASSESSEES. FOR READY REFERENCE, WE ARE REPRODUCING HEREUNDER THE RELEVAN T FINDING RECORDED BY US: 7. WE HAVE HEARD RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND FROM THE ASSESSMENT ORDERS IN ALL THESE GROUP APPEALS THAT THE ASSESSME NTS 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' COUN SEL APPEARED AND STATED CATEGORICALLY THAT HE APPEARED FOR SEEKING TIME. THE COUNSEL REGULARLY ATTENDED THE PR OCEEDINGS AND THE ASSESSMENTS HAVE BEEN FRAMED U/ S 143(3) AN D 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 OF THE VIEW THAT ASSESSEES HAD REASONABLE CAUSE FOR NON-AP PEARANCE ON THAT DAY. THEREFORE, THERE IS NO JUSTIFICATION F OR 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, THEREFORE, NO PENALTY CAN BE LEVIED IF THE ASSESSME NTS HAVE BEEN COMPLETED U/S 143(3) AND THERE IS SUBSEQUENT COMPLIANCES IN THE ASSESSMENT PROCEEDINGS WAS CONSI DERED 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 PA RTHMIK MA BHAGWATI POWER P. LTD. I.T.A. NOS. 1466 TO 1513 OF 2016 7 SHMSHAK SANGH BHAWAN TRUST VS. ADIT (2008) 115 TTJ 419 (DEL), IT WAS HELD THAT WHERE THE ASSESSEE HAD NOT COMPLIED WITH NOTICE U/S142(1) BUT ASSESSMENT ORDER WAS PASS ED 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 PENALT Y U/S 271(1)(B) OF THE ACT WAS NOT JUSTIFIED. THE CASE LA WS CITED BY LD. DEPARTMENTAL REPRESENTATIVE ARE DISTINGUISHABLE ON FACTS, HENCE, INAPPLICABLE TO THIS CASE. WE ALSO NOTED THA T 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 SET ASIDE. THEREFORE, RESPECTFULLY FOLLOWING THE SAID O RDER AND FACTS, WE SET ASIDE THE ORDERS OF THE REVENUE AUTHO RITIES AND DELETE THE LEVY OF PENALTY U/S 271(1)(B) OF THE ACT IN ALL THESE APPEALS. 8. FOLLOWING OUR ABOVE ORDER ON THE IDENTICAL FACTS AND CIRCUMSTANCES RELATING TO ASSESSEES GROUP, WE SET ASIDE THE ORDERS OF THE REVENUE AUTHORITIES AND DELETE THE PENALTY U/S 271(1)(B) OF THE ACT IN ALL THE PRE SENT APPEALS. 9. IN RESULT, ALL THE APPEALS OF THE ASSESSEES ARE ALLOWED. THE ORDER HAS BEEN PRONOUNCED IN OPEN COURT ON THE 18 TH JANUARY, 2017. SD/- ( . . ) (D.T.GARASIA) JUDICIAL MEMBER SD/- ( . . ) (O.P.MEENA) ACCOUNTANT MEMBER % / DATED : 18 TH JANUARY, 2017.
