N.D.G. Estates Pvt. Ltd., , Kolkata V. ITO, Ward - 7(1), Kolkata , Kolkata

ITA 1614/KOL/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1813 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 07-07-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS
• Assessee Lawyers: R K SINGH
• Section: 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : KOLKATA [BEFORE HONBLE SHRI M.BALAGANESH, AM & HONBLE SHRI S.S.VISWANETHRA RAVI, JM] I.T.A NO. 1614/KOL/2017 ASSESSMENT YEAR : 2012-13 N.D.G. ESTATES PVT. LTD. -VS- ITO, WARD 7(1), KOLKATA [PAN: AACCN 2179 A] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI R.K. SINGH, ADVOCATE FOR THE RESPONDENT : SMT. RANU BISWAS, ADDL. CIT DATE OF HEARING : 23.08.2018 DATE OF PRONOUNCEMENT : 05.09.2018 ORDER PER M.BALAGANESH, AM THIS APPEAL IS DIRECTED AGAINST THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-3, KOLKATA [IN SHORT THE LD CIT(A)] IN APPEAL NO.1955/CIT(A)-3/KOL/DCIT, C-7(2)/KOL/15-16 DATED 31.05.2017 AGAINST THE ORDER PASSED BY THE ITO WARD 7(1), KOLKATA [ IN SHORT THE LD AO] AND LEVYING PENALTY UNDER SECTION 271(1)(B) OF THE ACT VIDE ORDER DATED 28.08.2015 LEVYING PENALTY OF RS. 20,000/- FOR THE ASSESSMENT YEAR 2012-13. 2. THE BRIEF FACTS OF THIS APPEAL ARE THAT THE PENALTY U/S 271(1)(B) WAS LEVIED BY THE LD. A.O. FOR NON-COMPLIANCE OF STATUTORY NOTICES ISSUED BY THE LD. A.O. U/S 143(2) AND 142(1) OF THE ACT. THE PENALTY OF RS. 10,000/- WAS LEVIED FOR EACH SUCH DEFAULT OF THE ASSESSEE. DURING THE COURSE OF HEARING, THE LEARNED AR BEFORE US AGREED THAT NOTICE U/S 143(2) WAS DULY SERVED ON THE ASSESSEE AND HENCE PENALTY U/S 271(1)(B) LEVIED THEREON IS NOT PRESSED BY HIM. ACCORDINGLY, 2 I.T.A. NO. 1614/KOL/2017 ASSESSMENT YEAR: 2012-13 NDG ESTATES PVT. LTD. THE PENALTY LEVIED FOR DEFAULT OF NON-APPEARANCE FOR NOTICE U/S 143(2) OF THE ACT IN THE SUM OF RS. 10,000/- IS HEREBY UPHELD. 3. WITH REGARD TO THE ISSUE OF NOTICE U/S 142(1) OF THE ACT, SINCE THERE WAS NO COMPLIANCE BY THE ASSESSEE, THE LEARNED A.O. LEVIED PENALTY U/S 271(1)(B) OF THE ACT IN THE SUM OF RS. 10,000/-. THE ASSESSMENT WAS COMPLETED BY THE LEARNED A.O. U/S 144 OF THE ACT. 4. WE HAVE HEARD RIVAL SUBMISSIONS. THE LEARNED AR ARGUED BEFORE US THAT THE NOTICE U/S 142(1) OF THE ACT WAS NEVER RECEIVED BY THE ASSESSEE AND PRAYED FOR CANCELLATION OF PENALTY LEVIED THEREON. HE ARGUED THAT FROM THE PERUSAL OF THE RECORDS, IT WAS FOUND THAT IN THE NOTICE U/S 142(1) OF THE ACT, THE COMPLETE ADDRESS OF THE ASSESSEE WAS NOT MENTIONED BY THE LEARNED A.O. HE STATED THAT THE COMPLETE ADDRESS OF THE ASSESSEE IS AS UNDER: 11B, JATINDRA MOHAN AVENUE, BEADON STREET, KOLKATA 700 006. WHEREAS THE ADDRESS MENTIONED IN THE NOTICE 142(1) WAS AS UNDER: 11B, BEADON STREET, KOLKATA 700 006. BECAUSE OF THIS MISTAKE, THE NOTICE U/S 142(1) OF THE ACT COULD NOT BE COMPLIED WITH BY THE ASSESSEE WHICH EVENTUALLY RESULTED IN FRAMING OF ASSESSMENT U/S 144 OF THE ACT. THIS FACT WAS ALSO BROUGHT TO THE NOTICE OF THE LD. CIT(A) IN THE PENALTY APPEAL U/S 271(1)(B). HOWEVER, THE LD. CIT(A) DID NOT HEED TO THE CONTENTION OF THE ASSESSEE. WE FIND LOT OF FORCE IN THIS ARGUMENT OF THE LEARNED AR IN AS MUCH AS THE CORRECT ADDRESS OF THE ASSESSEE AS PER THE ASSESSMENT ORDER, APPELLATE ORDER AND FORM NO. 36 WAS FILED BEFORE IT. SINCE THE CRUCIAL WORDS JATINDRA MOHAN AVENUE WAS NOT MENTIONED IN THE NOTICE ISSUED U/S 142(1) OF THE ACT BY THE LEARNED A.O., WHICH REMAINED UNDISPUTED BEFORE US BY 3 I.T.A. NO. 1614/KOL/2017 ASSESSMENT YEAR: 2012-13 NDG ESTATES PVT. LTD. THE REVENUE, WE DEEM THAT IT IS NOT A FIT CASE FOR LEVY OF PENALTY U/S 271(1)(B) OF THE ACT FOR NON-COMPLIANCE OF NOTICE U/S 142(1) OF THE ACT. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE COURT ON 05.08.2018 SD/- SD/- [S.S. VISWANETHRA RAVI] [ M.BALAGANESH ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 05.09.2018 BISWAJIT, SR. PS COPY OF THE ORDER FORWARDED TO: 1. N.D.G. ESTATES PVT. LTD., 11B, JATINDRA MOHAN AVENUE, BEADON STREET, KOLKATA 700 006. 2. ITO WARD 7(1), 69, CHOWRINGHEE SQUARE, KOLKATA. 3..C.I.T.(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHES