Pad Com Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 154/DEL/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7483 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 11-05-2016
• Assessment Year: 2001-2002
• Appeal Filed On: 08-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAKHI BIM AL
• Assessee Lawyers: R B ARORA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: F: NEW DELHI BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER, AND SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER ITA NO. 154/DEL /2014 ASSESSMENT YEAR: 2001-02 PAD COM PVT LTD VS. THE ITO C/O R.B. ARORA & CO WARD 14(1) 38/6, WEST PATEL NAGAR NEW DELHI NEW DELHI PAN : AABCP 9227 G [APPELLANT] [RESPONDENT] DATE OF HEARING : 12.05.2016 DATE OF PRONOUNCEMENT : 03.08.2016 APPELLANT BY : SHRI R.B. ARORA, CA RESPONDENT BY : MS. RAKHI BIMAL, SR . DR ORDER PER CHANDRA MOHAN GARG, JUDICIAL MEMBER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE CIT(A)-XVII, DELHI, DATED 25/11/2013 FOR A.Y 20 01-02 PASSED IN FIRST APPEAL NO. 67/2012-13. 2. ALTHOUGH THE ASSESSEE HAS RAISED AS MANY AS FIVE GROUNDS IN THIS APPEAL, BUT EXCEPT THE MAIN EFFECTIVE GROUND NO. 2, ALL THE REST ARE SUPPORTIVE TO THE MAIN GROUND WHICH READS AS FOLLOW S: 2. THAT THE LD. CIT(A) HAS ERRED BOTH IN LAW AS WE LL AS IN FATS OF THE CASE IN UPHOLDING LEVY OF PENALTY OF RS. 10,000 /- WITHOUT ANY LOGICAL REASONING AND UNDER ERRONEOUS APPRECIATION OF FACTS. 2 ITA NO. 154/D EL/2014 2 GROUND NO. 2 3. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D HAVE CAREFULLY PERUSED THE RELEVANT MATERIAL PLACED ON RECORD ON T HE TRIBUNAL INTER ALIA ASSESSMENT ORDER AND ORDER OF THE CIT(A). THE LD. AR SUBMITTED THAT THE REGISTERED OFFICE OF THE ASSESSEE WAS SHIFTED FROM 8645, ARAKASHAN ROAD, PAHAR GANJ, NEW DELHI TO C-5/19, RANA PRATAP BAGH, DELHI W.E.F. 16.12.2002 AND IT WAS INTIMATED TO THE REGISTRAR OF COMPANIES, DELHI AND HARYANA ON 27.12.2002 AND THE RETURN OF INCOME FOR A.Y 2001-02 WAS FILED FROM THE NEW ADDRESS. THE LD. AR POINTED OUT THAT ALL THE NOTICES WERE ISSUED TO THE ASSESSEE ON THE OLD ADDRESS AND IN AL L PROBABILITIES, THE NOTICES ISSUED AT THE OLD ADDRESS WERE NOT SERVED O N THE ASSESSEE AND IN ALL PROBABILITIES ALL NOTICES WOULD HAVE BEEN RETURNED BY POSTAL AUTHORITIES AS UNSERVED. THE LD. AR VEHEMENTLY ARGUED THAT THE PE NALTY IMPOSED BY THE AO AND UPHELD BY THE CIT(A) IS NOT SUSTAINABLE AND HENCE THE SAME MAY KINDLY BE DIRECTED TO BE DELETED. 4. PER CONTRA, THE LD. DR SUPPORTED THE ORDER OF AO AS WELL AS THE CIT(A) AND CONTENDED THAT THE ASSESSEE DID NOT COMPLY WITH THE NOTICED ISSUED TO IT HENCE PENALTY WAS LEVIED ON THE LEGAL AND JUSTIF IED BASIS 5. WE HAVE CONSIDERED THE ARGUMENTS OF BOTH THE SID ES AND CAREFULLY PERUSED THE RELEVANT MATERIAL PLACED ON RECORD BEFO RE US. WE FIND FROM THE COPY OF THE FORM NO. 18 UNDER COMPANIES ACT, 1956, THAT THE CHANGE IN ADDRESS OF THE ASSESSEE COMPANY WAS FROM 8645, ARAK SHAN ROAD, PAHAR GANJ, NEW DELHI TO C-5/19, RANA PRATAP BAGH, DELHI W.E.F. 16.12.2002 AND 3 ITA NO. 154/D EL/2014 3 IT WAS INTIMATED TO THE REGISTRAR OF COMPANIES, DEL HI AND HARYANA ON 27.12.2002 AND THE RETURN OF INCOME FOR A.Y 2001-02 WAS FILED FROM THE NEW ADDRESS. THIS FACT COULD NOT BE CONTROVERTED B Y THE AUTHORITIES BELOW AS WELL AS BY THE LD. DR. FURTHER, FROM THE COPIES OF THE RETURN FROM 2003 TILL 2011-12, IT IS APPARENT THAT THE ASSESSEE IS R EGULARLY FILING RETURN FROM THE NEW ADDRESS AND FOR THE FIRST TIME, RETURN FOR A.Y 2003-04 WAS FILED ON 25.7.2003 AND NEW ADDRESS OF RANA PRATAP BAGH HAS B EEN MENTIONED INFORMING ABOUT THE NEW ADDRESS. THIS FACT HAS ALS O NOT BEEN CONTROVERTED BY THE AUTHORITIES BELOW AND THE LD. DR. 6. FROM THE IMPUGNED PENALTY ORDER PASSED U/S 271(1 )(B) OF THE ACT IT HAS BEEN ALLEGED THAT THE FAILED TO COMPLY WITH THE NOTICES ISSUED TO IT DURING ASSESSMENT PROCEEDINGS BUT NO SPECIFIC INSTA NCES OR FACT ABOUT THE PARTICULAR NOTICE(S) HAS BEEN MENTIONED. THE AO HA S PASSED PENALTY ORDER EXPARTE. IN THE FIRST PARA OF THE ASSESSMENT ORDER DATED 28.11.2008, IT HAS BEEN ALLEGED THAT NOTICES ISSUED TO THE ASSESSEE DA TED 26.3.2008 AND 24.7.2008 REMAINED UNRESPONDED BUT THERE IS NO REC ORDING OF FINDING TO THIS EFFECT THAT DESPITE OF DUE SERVICE OF NOTICE I T REMAINED UNCOMPLIED. 7. FURTHER, AS WE HAVE NOTED ABOVE THAT THE ASSESSE E SHIFTED ITS OFFICE FROM EARLIER ADDRESS TO NEW ADDRESS ON 16.12.2002 A ND IN THE RETURN FOR A.Y 2003-04 FILED ON 25.7.2003 THE NEW ADDRESS HAS BEEN INFORMED TO THE AO, THUS WE ARE IN AGREEMENT WITH THE CONTENTION OF THE LD. AR THAT THE NOTICES DATED 20.3.2008 AND 29.7.2008 ISSUED TO THE NEW ADD RESS CANNOT BE EVEN PRESUMED TO BE VALIDLY SERVED UPON THE ASSESSEE BEC AUSE THE ASSESSEE HAD SOLD THE SAID PROPERTY OF OLD ADDRESS MUCH BEFORE I .E. 8.9.2005. IN THESE 4 ITA NO. 154/D EL/2014 4 CIRCUMSTANCES, THE ASSESSEE CANNOT BE HELD GUILTY O F VOLUNTARILY AND DELIBERATELY NON COMPLYING WITH NOTICES ISSUED BY T HE AO AT THE OLD ADDRESS THUS THE IMPUGNED ORDER OF THE CIT(A) CONFIRMING TH E PENALTY U/S 271(1)(B) CANNOT BE HELD AS SUSTAINABLE AND HENCE WE DEMOLISH THE SAME AND THE AO IS DIRECTED TO DELETE THE PENALTY. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 03.08 .2016. SD/- SD/- (S.V. MEHROTRA) (C.M. GAR G) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 03 RD AUGUST, 2016 VL/ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI