Shri Memon Haji Abdulgani Tayabbhai, Ahmedabad V. The Inxome Tax Officer, Ward-9(4), Ahmedabad

ITA 1620/AHD/2014

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8833 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 10 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 21-03-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 22-05-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PRADEEPKR MAJUMDA R
• Keywords: Non compliance
• Section: 143(3); 142(1); 27; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH BEFORE: SHR I S. S. GODARA , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER SHRI MEMON HAJI ABDULGANI TAYABBHAI (PROP. OF KOHINOOR TRANSPORT CO.), 600/99, NR. ROZY CINEMA, SARANGPUR, AHMEDABAD GUJARAT - 380002 PAN: AFTPM 1187 Q (APPELLANT) VS THE ITO, WARD - 9(4), AHMEDABAD (RESPONDENT) REVENUE BY : MR. PRADEEP KR. MAJUMDAR, SR. D.R. ASSESSEE BY: WRITTEN SUBMISSION DATE OF HEARING : 21 - 03 - 2 017 DATE OF PRONOUNCEMENT : 31 - 03 - 2 017 / O RDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THESE TWO ASSESSEE S APPEAL S FOR A.Y. 2007 - 08 & 2008 - 09 , AR ISE FROM ORDER OF THE CIT(A) - XV & II , AHMEDABAD DATED 18 - 03 - 2014 & 24/02/2014 IN APPEAL NO S . CIT(A) - XV/9(4)/125/12 - 13 & I T A NO S . 1620 & 1621 / A HD/20 14 A SSESSMENT YEAR 200 7 - 08 & 2008 - 09 I.T.A NO S . 1620 & 1621 / AHD/2014 A.Y. 2007 - 08 & 2008 - 09 PAGE NO SHRI MEMON HAJI ABDULGANI TAYABBHAI VS. ITO 2 CIT(A) - II/I.T.O.. WD. 9(4 )/ABD/165/2013 - 1 4 , DELETING PENALTY OF RS. 30,000/ - AND CONFIRMING PENALTY OF RS. 20 ,000/ - ; RESPECTIVELY, IN PROCEEDINGS UNDER SECT ION 271(1 ) (B) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . ITA NO. 1620/AHD/2014 2. IN THE CASE, RETURN OF INCOME DECL ARING INCOME OF RS. 2,70,340 WAS FILED ON 31 ST OCTOBER, 2007. SUBSEQUENTLY, THE CASE OF THE ASSESSEE WAS REOPENED BY ISSUING NOTICE U/S. 148 OF THE ACT ON 25 TH MARCH, 2011 AND THE ASSESSMENT U/S. 143(3) R.W.S. 147 OF THE ACT WAS COMPLETED ON 23 RD DECEMB ER, 2011. THEREAFTER, THE ASSESSING OFFICER HAS IMPOSED PENALTY OF RS. 30,000/ - U/S. 271(1)(B) OF THE ACT VIDE ORDER DATED 26 TH JUNE, 2012 FOR NOT MAKING COMPLIANCE TO THE VARIOUS NOTICES U/S. 142(1), THE DETAILS OF THESE NOTICES WERE GIVEN AS UNDER: - SR. NO SECTION DATE OF ISSUE DATE OF HEARING REMARKS 1. 142(1) 24.08.201 1 29.08.201 1 NO COMPLIANCE 2. 271(1)(B) 09.09.2011 16.09.2011 NO COMPLIANCE 3. 142(1) 19.10.2011 01.11.2011 NO COMPLIANCE 3. AGGRIEVED AGAINST THE ORDER OF THE A SSESSING OFFICER, THE ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) HAS I.T.A NO S . 1620 & 1621 / AHD/2014 A.Y. 2007 - 08 & 2008 - 09 PAGE NO SHRI MEMON HAJI ABDULGANI TAYABBHAI VS. ITO 3 DELETED THE ENTIRE PENALTY OF RS. 30,000/ - IMPOSED BY THE ASSESSING OFFICER U/S. 271(1)(B) AS UNDER: - I AM INCLINED WITH THE CONTENTION OF APPELLANT AS FAR AS EXPLA NATION FOR PENALTY FOR NON COMPLIANCE OF NOTICES. IT HAS BEEN VERIFIED FROM THE ASSESSMENT ORDER U/S. 143(3) R.W.S. 147 OF THE ACT DTD. 23 - 12 - 11 THAT A.O RECORDED THE PRESENCE OF APPELLANTS C.A. SHRI YUNUS M MANSURI & ACCOUNTANT SHRI HANIF PATEL IN RESPONS E TO NOTICE DTD. 24 - 8 - 11. FURTHER WHILE MAKING DISALLOWANCES AND ADDITIONS, THE A.O HAS CONSIDERED THE APPELLANT'S REPLY DTD 10 - 10 - 11,14 - 11 - 11 & 22 - 11 - 11. IT IS. THEREFORE, THERE IS A FORCE IN THE ARGUMENT OF THE APPELLANT THAT THE RE - ASSESSMENT PROCEEDIN GS WERE DULY ATTENDED BY APPELLANT AND THE ASSESSMENT WAS MADE AFTER CONSIDERING APPELLANT'S REPLY AND SUBMISSION. THE A.OS SATISFACTION FOR IMPOSITION OF PENALTY IS THEREFORE BASED ON IMPROPER FACTS AND REQUIRED TO BE QUASHED. NON COMPLIANCE OF NOTICE U/S . 271(1)(B) OF THE ACT DOES NOT GIVE RISE TO PENALTY THOUGH A.O HAS CONSIDERED SUCH DEFAULT. IT IS, THEREFORE, THE A.O. IS DIRECTED TO DELETE THE PENALTY SO IMPOSED OF RS. 30.000/ - . ALL THE GROUNDS RELATED TO PENALTY ARE TREATED AS ALLOWED EXCEPT THE GROU ND THAT ASSESSMENT ORDER PASSED U/S. 143(3) BY THE A.O. IS ABSOLUTELY INCORRECT, ILLEGAL BECAUSE APPELLANT HAS NOT SUBSTANTIATED THIS CONTENTION IN THE GROUND. 4. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US, NOBODY ATTENDED ON BEHALF OF THE ASSE SSEE AND THE WRITTEN SUBMISSION DATED 17 TH JAN, 2017 WAS SUBMITTED . ON OTHER HAND, LD. DEPARTMENTAL REPRESENTATIVE RELIED ON THE ORDER OF THE LD. CIT(A). 5. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATERIAL ON RECORD AND FIND THAT LD. CIT(A) HAD AL READY DELETED THE FULL PENALTY OF RS. 30,000/ - AS MENTIONED ABOVE IN THIS ORDER, THEREFORE, THE APPEAL FILED BY THE ASSESSEE IS NOT CORRECT AND THE SAME IS DISMISSED. ITA NO. 1621/AHD/2014 I.T.A NO S . 1620 & 1621 / AHD/2014 A.Y. 2007 - 08 & 2008 - 09 PAGE NO SHRI MEMON HAJI ABDULGANI TAYABBHAI VS. ITO 4 6. IN THE CASE, RETURN OF INCOME DECLARING INCOME OF RS.3,67,74 0 WAS FILED ON 22/09/ 2008. SUBSEQUENTLY, THE CASE OF THE ASSESSEE WAS REOPENED BY ISSUING NOTICE U/S. 148 OF THE ACT ON 25 TH MARCH, 2011 AND THE ASSESSMENT U/S. 143(3) R.W.S. 147 OF THE ACT WAS COMPLETED ON 26TH JUNE, 2012. THEREAFTER, THE ASSESSING OF FICER HAS IMPOSED PENALTY OF RS. 30,000/ - U/S. 271(1)(B) OF THE ACT VIDE ORDER DATED 26 TH JUNE, 2012 FOR NOT MAKING COMPLIANCE TO THE VARIOUS NOTICES U/S. 142(1), THE DETAILS OF THESE NOTICES ARE GIVEN AS UNDER: - SR. NO SECTION DATE OF ISSUE DATE OF H EARING REMARKS 1. 142(1) 24.08.201 1 29.08.201 1 NO COMPLIANCE 2. 271(1)(B) 09.09.2011 16.09.2011 NO COMPLIANCE 3. 142(1) 19.10.2011 01.11.2011 NO COMPLIANCE 7. AGGRIEVED AGAINST THE ORDER OF THE ASSESSING OFFICER, THE ASSESSEE PREFER RED APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) HAS DELETED THE PART PENALTY OF RS. 10,000/ - IMPOSED BY THE ASSESSING OFFICER U/S. 271(1)(B) AS UNDER: - IT HAS BEEN MENTIONED BY THE ASSESSING OFFICER THAT IN RESPONSE TO THESE NOTICES, NEITHER THE ASSESSE E NOR HIS AR ATTENDED THE HEARINGS OR FILED ANY WRITTEN SUBMISSIONS. HOWEVER, SUBSEQUENTLY, IN RESPONSE TO FURTHER NOTICE U/S. 271[1][B] DT 12 - 6 - 12, FIXING THE HEARING ON 19 - 6 - 12, A REPLY WAS FURNISHED ON 20 - 6 - 12. IT WAS SUBMITTED THAT THE ASSESSEE'S REPRE SENTATIVE SHRI Y M MANSURI ATTENDED WITH HIS ACCOUNTANT SHRI HONEY PATEL AND SUBMITTED THE DETAILS ASKED FOR AND GAVE FULL COOPERATION AND PRODUCED ALL THE DOCUMENTS CALLED FOR DURING THE ASSESSMENT PROCEEDINGS. IT WAS ALSO SUBMITTED THAT THEY ATTENDED NUM BER OF TIMES THE OFFICE TILL 9.00 PM BUT THE OFFICER WAS BUSY IN TIME BARRING MATTERS AND ASKED THEM TO COME ON FURTHER I.T.A NO S . 1620 & 1621 / AHD/2014 A.Y. 2007 - 08 & 2008 - 09 PAGE NO SHRI MEMON HAJI ABDULGANI TAYABBHAI VS. ITO 5 DATES OF HEARING FOR WHICH THE ASSESSEE HAS NO PROOF IN WRITING. IT WAS SPECIFICALLY SUBMITTED THAT ON 19 - 6 - 2012, SHRI Y M MANSURI ATTEN DED WITH HIS ACCOUNTANT AND EXPLAINED ALL THE FACTS TO THE ASSESSING OFFICER AND HENCE, PENALTY MAY KINDLY BE DROPPED. IT IS OBSERVED THAT THERE WAS A NON COMPLIANCE OF NOTICES U/S. 142[1] DT 24 - 8 - 11 AND 19 - 10 - 11, BUT IN RESPONSE TO PENALTY NOTICE U/S. 27 1[1][B], ULTIMATELY THE REPLY WAS FILED GIVING THE REASONS. THEREFORE, I AM OF THE CONSIDERED VIEW THAT ONLY PENALTY FOR TWO DEFAULTS CAN BE CONFIRMED AND THE THIRD ONE IS TO BE DELETED. THEREFORE, THE PENALTY OF RS. 20,000/ - IS SUSTAINED AND THE APPELLANT GETS RELIEF OF RS. 10,000/ - 8. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US, NOBODY ATTENDED ON BEHALF OF THE ASSESSEE AND THE WRITTEN SUBMISSION DATED 17 TH JAN, 2017 WAS SUBMITTED. ON OTHER HAND, LD. DEPARTMENTAL REPRESENTATIVE RELIED ON THE O RDER OF THE LD. CIT(A). 9. WE HAVE HEARD BOTH THE SIDES AND PERU SED THE MATERIAL ON RECORD. WE HAVE PERUSED THE WRITTEN SUBMISSION FILED BY THE ASSESSEE AND THE FINDINGS OF THE LD. CIT(A) . WE HAVE NOTICED THAT THE ASSESSEE AND HIS ACCOUNTANT HAD ATTEND ED AND PROVIDED FULL DETAIL AND DOCUMENT DURING THE COURSE OF ASSESSMENT PROCEEDINGS . WE HAVE FURTHER NOTICED THAT NONCOMPLIANCE OF ABOVE MENTIONED OCCUR R ED FOR WANT OF MORE TIME TO FURNISH THE INFORMATION AS THE CHARTED ACCOUNTANT OF THE ASSESSEE WAS NOT AVAILABLE ON THE RELEVANT DATES MENTIONED IN THE NOTICES. IN VIEW OF THE ABOVE MENTIONED FACTS, WE FIND THAT THE ASSESSEE S EXPLANATION IS APPEARED TO BE BONA FIDE AS OTHERWISE HE HAD MADE COMPLETE SUBMISSION AND APPEARED ON OTHER DATES IN THE ASSESS MENT PROCEEDINGS THEREFORE, WE DELETE THE REMAINING PENALTY OF RS. 2 0,000/ - . I.T.A NO S . 1620 & 1621 / AHD/2014 A.Y. 2007 - 08 & 2008 - 09 PAGE NO SHRI MEMON HAJI ABDULGANI TAYABBHAI VS. ITO 6 10. IN THE RESULT, THE APPEAL ITA NO. 1620 /AHD/2014 IS DISMISSED AND THE APPEAL ITA NO. 1621 /AHD/2014 IS ALLOWED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 31 - 0 3 - 201 7 SD/ - SD/ - ( S.S. GODARA ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 3 1 /03 /2017 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4 . CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,