Smt. Pramila Ghodke, Indore V. THE DCIT (CENTRAL)-I, Bhopal

ITA 1523/IND/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 5715 (ITAT-INDORE)
• Duration Of Justice: 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 28-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED
• Assessee Lawyers: KAMLESH JAIN; SATISH RAWKA
• Keywords: Reasonable cause
• Section: 143(3); 142(1); 153A; 2

Judgement Text

SMT. PRAMILA GHODKE, INDORE VS. DCIT (CENTRAL)-I, B HOPAL I.T.A.NOS. 1523 TO 1529/IND/2016 A.YS. 2008-09 T O 2014-15 PAGE 1 OF 7 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE .. , . . , # BEFORE SHRI C. M. GARG, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER . . /. I.T.A. NOS. 1523 TO 1529/IND/2016 / ASSESSMENT YEARS: 2008-09 TO 2014-15 SMT. PRAMILA GHODKE, C/O R.L RAWKA & CO., 171, NETAJI SUBHASH MARG, INDORE. VS. DY. CIT, (CENTRAL)-I BHOPAL / / / / APPELLANT / / / / RESPONDENT .../ PAN: ACHPG3486B / / / / APPELLANT BY SHRI KAMLESH JAIN AND SHRI SATISH RAWKA, ADV. / / / / RESPONDENT BY SHRI MOHD. JAVED, DR. / / / / DATE OF HEARING 20.03.2017 / / / / DATE OF PRONOUNCEMENT 20.03.2017 / / / / O R D E R PER BENCH THESE APPEALS ARE FILED BY THE ASSESSEE AGAINST THE CONSOLIDATED ORDER OF LD. COMMISSIONER OF INCOME TA X (APPEALS)-3, BHOPAL, [HEREINAFTER REFERRED TO AS THE CIT (A)] DA TED 07.10.2016. THESE APPEALS PERTAIN TO ASSESSMENT YEARS 2008-09 T O 2014-15 WHICH IN TURN HAVE ARISEN FROM THE PENALTY ORDER DAT ED 04.01. 2016 SMT. PRAMILA GHODKE, INDORE VS. DCIT (CENTRAL)-I, B HOPAL I.T.A.NOS. 1523 TO 1529/IND/2016 A.YS. 2008-09 T O 2014-15 PAGE 2 OF 7 U/S. 271(1)(B) OF THE INCOME TAX ACT, 1961(HEREINAF TER REFERRED TO AS 'THE ACT) BY THE DCIT (CENTRAL)-1 BHOPAL [HEREINAF TER REFERRED TO AS THE AO], FOR THE ABOVE ASSESSMENT YEARS. 2. IN THE GROUNDS OF APPEALS, THE ASSESSEE HAS ASSAILED THE ORDER OF LD. CIT(A) IN CONFIRMING THE PENALTY OF RS.10,00 0/- LEVIED UNDER SECTION 271(1)(B) OF THE INCOME-TAX ACT, 1961, FOR ASSESSMENT YEARS 2008-09 TO 2014-15. 3. THE FACTS OF THE CASE ARE THAT A SEARCH IN THE CASE OF THE ASSESSEE HAD TAKEN PLACE ON 29.01.2014. CONSEQUENTL Y, PROCEEDINGS U/S 153A WERE INITIATED. AFTER THAT NOTI CES WERE ISSUED BY THE AO U/S 142(1) OF THE INCOME-TAX ACT, 1961, O N 30.09.2015 FIXING THE DATE OF HEARING FOR 15.10.2015 TO SUBMIT THE REQUIRED INFORMATION/DOCUMENTS AS PER THE QUESTIONNAIRE ALON G WITH THE BOOKS OF ACCOUNTS. IT WAS SPECIFICALLY MENTIONED I N THE NOTICE THAT FAILURE TO COMPLY WITH THE NOTICE WOULD LEAD TO IMPO SITION OF PENALTY U/S 271(1)(B) FOR RS.10,000/-. ON THE DATE FIXED F OR 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 ASSES SEE ON 07.12.2015 AS TO WHY THE PENALTY SHOULD NOT BE LEVIE D U/S 271(1)(B) SMT. PRAMILA GHODKE, INDORE VS. DCIT (CENTRAL)-I, B HOPAL I.T.A.NOS. 1523 TO 1529/IND/2016 A.YS. 2008-09 T O 2014-15 PAGE 3 OF 7 OF THE ACT, FOR NON-COMPLIANCE TO NOTICE U/S 142(1) DATED 30.09.2015. ON THE DATE OF HEARING I.E. ON 15.12.20 15 , AGAIN NO REPLY/SUBMISSIONS WERE FILED BY THE ASSESSEE ON OR B EFORE THE DATE OF HEARING AND NO REASON/EXPLANATION WAS GIVEN BY TH E ASSESSEE FOR NON-COMPLIANCE ON THE SAID DATE. IN VIEW OF THE ABOV E FACTS, THE AO LEVIED THE PENALTY U/S 271(1)(B) OF THE ACT FOR RS. 10,000/- ON 04.01.2016 FOR NON-COMPLIANCE TO NOTICE U/S 142(1) DATED 30.09.2015 FOR HEARING ON 15.10.2015 FOR EACH ASSES SMENT YEARS FROM 2008-09 TO 2014-15. 4. BEING AGGRIEVED, THE ASSESSEE FILED AN APPEAL BE FORE THE LD. CIT(A) WHO CONFIRMED THE PENALTY BY OBSERVING THAT T HE ASSESSEE DID NOT MAKE ANY COMPLIANCE ON THE DATE FIXED FOR HEARI NG I.E. ON 15.10.2015 FOR WHICH NOTICE U/S 142(1) OF THE ACT, WA S ISSUED BY THE AO. IT WAS MENTIONED THAT REQUEST WAS MADE BY TH E ASSESSEE FOR GRANT OF TIME TO FURNISH THE REPLY. HOWEVER, NO COP Y OF SUCH REQUEST WAS FILED. ALL THESE FACTS ARE NOT BORNE OUT IN THE PENALTY ORDER IN WHICH THE AO HAS CLEARLY MENTIONED THAT NO COMPLIANC E WAS MADE BY THE ASSESSE ON THAT DATE. THE CASE LAWS RELIED UP ON BY THE ASSESSEE ARE CONTRADICTORY IN NATURE AND DO NOT SUP PORT THE CASE OF SMT. PRAMILA GHODKE, INDORE VS. DCIT (CENTRAL)-I, B HOPAL I.T.A.NOS. 1523 TO 1529/IND/2016 A.YS. 2008-09 T O 2014-15 PAGE 4 OF 7 THE ASSESSEE. HENCE THE LD. CIT(A) CONFIRMED THE PE NALTY LEVIED BY THE AO. 5. BEING AGGRIEVED, THE ASSESSEE FILED THIS APPEAL BEFORE THE TRIBUNAL. THE LD. AR CONTENDED BEFORE THE AO THAT S HERI D.S. TIWARI, COUNSEL OF THE ASSESSEE ATTENDED ON 15.10.20 15 BEFORE AO TO SEEK FURTHER EXTENSION OF TIME. FURTHER, THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE ATTENDED BEFORE AO ON 17.12.2015 AND FILED THE REPLIES IN ALL THE CASES INCLUDING TH E CASE OF THE ASSESSEE. HE FURTHER CONTENDED THAT THE PENALTY U/S 271(1)(B) HAS BEEN LEVIED FOR DEFAULT IN NOT MAKING THE COMPLIANC E ON 15.10.2015 OF THE NOTICES U/S 142(1) DATED 30.09.2015. HOWEVE R, THE ASSESSMENT IS MADE U/S 153A READ WITH SECTION 143(3) ON SUBSEQUENT COMPLIANCE. THEREFORE, SUBSEQUENT COMPL IANCE ARE CONSIDERED AS GOOD COMPLIANCE AND DEFAULT COMMITTED EARLIER IS IGNORED AND, THEREFORE, THE PENALTY CANNOT BE LEVI ED. IN SUPPORT OF HIS CONTENTION THE LD. AR RELIED BEFORE THE AO ON T HE DECISIONS IN THE CASE OF HINDUSTAN STEEL LTD., 83 ITR 26 (SC) T O CONTEND THAT PENALTY MAY NOT BE IMPOSED MERELY BECAUSE IT IS LAWF UL TO DO AS ON TECHNICAL OR VENIAL BREACH OF PROVISION OF LAW. THE AR ALSO CITED FOLLOWING DECISION BEFORE LD. CIT(A):- SMT. PRAMILA GHODKE, INDORE VS. DCIT (CENTRAL)-I, B HOPAL I.T.A.NOS. 1523 TO 1529/IND/2016 A.YS. 2008-09 T O 2014-15 PAGE 5 OF 7 (I) HOTEL BLUE MOON, (2010) 321 ITR 362 (S.C.), (II) ASHOK CHADDHA, (2011) 337 ITR 399 (DEL). HE FURTHER PLACED RELIANCE ON THE CASE OF SHANKAR LAL SONI, INDORE V. ACIT, 13 ITJ 96 (INDORE), AKHIL BHARTIYA PRATHMI K SHIKSHAK BHAWAN TRUST V. ACIT, (2008) 115 TTJ 419 (DEL), PARM ESHWARI TEXTILE V. ITO 146 TAXMAN 38(JD), SWARNABEN M KHANNA V. DCIT 37 SOT 24(AHD). 6. ON THE OTHER HAND, THE LD. DR RELIED ON THE ORD ERS OF THE LOWER AUTHORITIES. 7. WE HAVE CONSIDERED THE FACTS, RIVAL SUBMISSIO NS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ASSESSMENT IN THIS CASE WAS MADE UNDER SECTION 143(3) OF THE ACT, WHICH MEANS THAT THERE WAS SUBSEQUENT COMPLIANCE TO THE NOTICES ISSUED BY THE AUTHORITIES. WE ALSO NOTED THAT LD. COUNSEL ALSO AT TENDED BEFORE THE AO ON 17.12.2015 AND FILED REPLIES IN ALL THE CASES INCLUDING THE CASE OF THE ASSESSEE. THE AO VERBALLY AGREED BUT CO UNSELS PRESENCE WAS NOT RECORDED. WE ARE OF THE VIEW THAT THE ASSESS EE HAS A REASONABLE CAUSE FOR NON-APPEARANCE ON THAT DAY. TH EREFORE, 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) DUE TO SUBSEQUENT COMPLIANCES IN THE ASSESSM ENT SMT. PRAMILA GHODKE, INDORE VS. DCIT (CENTRAL)-I, B HOPAL I.T.A.NOS. 1523 TO 1529/IND/2016 A.YS. 2008-09 T O 2014-15 PAGE 6 OF 7 PROCEEDINGS, WHICH WAS CONSIDERED AS GOOD COMPLIANCES AND DEFAULT COMMITTED EARLIER WERE IGNORED. WE ALSO BOLS TER OUR VIEW BY PLACING RELIANCE IN THE CASE OF AKHIL BHARTIYA PRAT HMIK SHIKSHAK SANGH BHAWAN TRUST V. ADIT (2008) 115 TTJ 419(DEL)/ 115 ITJ 419 (DEL), WHEREIN IT WAS HELD THAT WHERE THE ASSESSEE HAD NOT COMPLIED WITH NOTICE U/S 142(1) BUT ASSESSMENT ORDER WAS PASSE D U/S 143(3) AND NOT U/S. 144, THAT MEANT THAT SUBSEQUENT COMPLI ANCE IN ASSESSMENT PROCEEDINGS WAS CONSIDERED AS GOOD COMPLI ANCE AND DEFAULTS COMMITTED EARLIER WERE IGNORED BY THE ASSE SSING OFFICER, THEREFORE LEVY OF PENALTY U/S. 271(1)(B) OF THE ACT WAS NOT JUSTIFIED. THUS, WE SET ASIDE THE ORDERS OF THE REVENUE AUTHORI TIES AND DELETE THE LEVY OF PENALTY U/S 271(1)(B) OF THE ACT IN THE SE APPEALS. 8. IN THE RESULT, APPEALS OF THE ASSESSEE STAN D ALLOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 20.03.201 7. SD/- ( .. ) (C.M.GARG) JUDICIAL MEMBER SD/- (..) (O.P.MEENA) ACCOUNTANT MEMBER / DATED : 20 TH MARCH, 2017 CPU* SMT. PRAMILA GHODKE, INDORE VS. DCIT (CENTRAL)-I, B HOPAL I.T.A.NOS. 1523 TO 1529/IND/2016 A.YS. 2008-09 T O 2014-15 PAGE 7 OF 7