Radhyesham Jhunjhunwala, Pune V. ACIT (Central), Aurangabad

ITA 1678/PUN/2013

• Counselvise Citation: 167824514 RSA 2013
• Duration Of Justice: 1 year(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 03-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P S NAIK
• Assessee Lawyers: NILESH KHANDELWAL
• Keywords: Reasonable cause
• Section: 142(1)

Judgement Text

INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI R.S. PADVEKAR, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO. 1678/PN/2013 (ASSESSMENT YEAR : 2009-10) SHRI RADHYESHAM JHUNJHUNWALA, MSZK & ASSOCIATES, LEVEL 3, BUSINESS BAY, PLOT NO.84, WELLESELY ROAD, PUNE 411001 PAN NO.AAFHR1228E .. APPELLANT VS. ACIT CENTRAL, AURANGABAD .. RESPONDENT ITA NO. 1679/PN/2013 (ASSESSMENT YEAR : 2009-10) SMT. USHA RADHYESHAM JHUNJHUNWALA, MSZK & ASSOCIATES, LEVEL 3, BUSINESS BAY, PLOT NO.84, WELLESELY ROAD, PUNE 411001 PAN NO.ADUPJ4007F .. APPELLANT VS. ACIT CENTRAL, AURANGABAD .. RESPONDENT ASSESSEE BY : SHRI NILESH KHANDELWAL DEPARTMENT BY : SHRI P.S. NAIK DATE OF HEARING : 01-09-2014 DATE OF PRONOUNCEMENT : 12-09-2014 ORDER PER R.S. PADVEKAR, JM : THESE APPEALS BY THE DIFFERENT ASSESSEES ARE FILED CHALLENGING THE IMPUGNED ORDERS OF THE LD.CIT(A) AURANGABAD DAT ED 22-07-2013 FOR THE A.Y. 2009-10 IN WHICH THE PENALTY LEVIED BY THE ASSESSING OFFICER U/S.271(1)(B) HAS BEEN CONFIRMED. BOTH THE ASSESSEES HAVE TAKEN THE FOLLOWING GROUND WHICH IS VERBATIM : 2 THE LD. TAXING AUTHORITIES BELOW HAD ERRED IN LEVY ING PENALTY OF RS.10,000/- TOWARDS NON-COMPLIANCE/ATTENDANCE IN RE GARD TO THE HEARING FIXED. JUST AND PROPER RELIEF MAY BE GRANT ED TO THE APPELLANT AS PER THE PROVISIONS OF LAW. 2. WE FIRST TAKE UP ITA NO.1678/PN/2013. IN THIS CASE, THE ASSESSING OFFICER HAS LEVIED PENALTY OF RS.10,000/- U/S.271(1)(B) OF THE I.T. ACT. IN THE PENALTY ORDER, THE ASSESSING OFFICER HAS OBSERVED THAT THE ASSESSEES CASE WAS SELECTED FOR COMPULSOR Y SCRUTINY AND NOTICES U/S.142(1) AND 143(2) WERE ISSUED ON 21-10- 2010 DIRECTING THE ASSESSEE TO ATTEND ON 27-10-2010. THE ASSESSEE S CHARTERED ACCOUNTANT VIDE HIS LETTER FILED ON 27-10-10 REQUES TED FOR ADJOURNMENT. THE ASSESSEES CASE WAS ADJOURNED BY THE ASSESSING OFFICER TO 18-11-2010 AND AS NOTED BY THE ASSESSING OFFICER IN THE PENALTY ORDER, THE ASSESSEES CHARTERED ACCOUNTANT AGAIN FILED AN APPLICATION FOR ADJOURNMENT. THE CASE WAS AGAIN AD JOURNED TO 01-12- 2010. LIKEWISE, AS OBSERVED BY THE ASSESSING OFFIC ER, THE ASSESSEE KEPT SEEKING ADJOURNMENTS. FINALLY, THE ASSESSING OFFICER ISSUED THE NOTICE AS FINAL OPPORTUNITY ON 20-09-2011. IT APP EARS THAT FINALLY THE ASSESSMENT IN THIS CASE HAS BEEN COMPLETED U/S.143( 3) ON 29-09- 2011. ON THE CHARGE OF NON-COMPLYING ATTITUDE OF T HE ASSESSEE, THE ASSESSING OFFICER LEVIED PENALTY OF RS.10,000/- U/S .271(1)(B) OF THE ACT. 3. THE ASSESSEE CHALLENGED THE PENALTY ORDER BEFORE THE LD.CIT(A) BUT WITHOUT SUCCESS. THE LD.CIT(A) CONFIRMED THE AC TION OF THE ASSESSING OFFICER BY RECORDING THE FOLLOWING REASON S : 6. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CA SE AND RIVAL CONTENTIONS. ON PERUSAL OF THE SAME, IT HAS BEEN NO TICED THAT THE A.O. HAS FIXED VARIOUS DATES OF HEARINGS SUCH AS 27/10/2 010, 18/11/2010, 01/12/2010, 14/07/2011, 18/07/2011& 01/08/2011. THE APPELLANT HAS NOT COMPLIED OR ATTENDED ON THE ABOVE MENTIONED DATES OF HEARINGS AND HAS SOUGHT ADJOURNMENTS IN RESPECT OF 6 HEARINGS AS PER THE DETAILED CHART FILED BY THE APPELLANT. THE A.O. HAS NOTED THAT THE 3 ADJOURNMENTS WERE WITHOUT ANY REASONABLE CAUSE. THE A.O. HAS, THEREFORE, ISSUED NOTICE U/S 271(1)(B) ON 13/09/201 1. THE APPELLANT HAS FILED WRITTEN SUBMISSION ON 12/08/2011 AS POINT ED OUT BY HIM IN THE TABULAR CHART AND COMPLIED WITH THE HEARING FIX ED ON 12/08/2011. THE A.O. HAS, HOWEVER, LEVIED PENALTY OF RS.10,000/ - NOT IN RESPECT OF HEARING FIXED ON 12/08/2011 BUT IN RESPECT OF NON- COMPLIANCE/ATTENDANCE IN REGARD TO THE HEARING FIXE D ON EARLIER 6 DATES OF HEARINGS. THEREFORE, THE CONTENTION OF THE APPELLANT THAT HE HAS COMPLIED WITH THE HEARING FIXED ON 12/08/2011 A ND HAS FILED DETAILED SUBMISSION DATED 12/08/2011 AND HENCE PENA LTY IS NOT LEVIABLE CANNOT BE ACCEPTED. THE PENALTY OF RS.10,0 00/- LEVIED BY THE A.O. U/S 271(1)(B) IS, THEREFORE, CONFIRMED. NOW THE ASSESSEE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD THE SUBMISSIONS OF THE PARTIES AND PERUSED THE RECORD. WE FIND SECTION 271(1)(B) READS AS UNDER : 271 (1) . . . . . . . (A) . . . . . . . (B) HAS FAILED TO COMPLY WITH A NOTICE [UNDER SUB- SECTION (2) OF SECTION 115WD OR UNDER SUB-SECTION ( 2) OF SECTION 115WE OR] UNDER SUB-SECTION (1) OF SECTION 142 OR SUB-SECTION (2) OF SECTION 143 [OR FAILS TO COMPLY WITH A DIRECTION ISSUED UNDER SUB-SECTION (2A) OF SECTION 142], OR 4.1 WE FIND THAT ON ALL THE DATES IN THIS CASE THE ASSESSEE HAS FILED THE ADJOURNMENT LETTERS AND ALL THE ADJOURNMENTS AR E GRANTED BY THE ASSESSING OFFICER. MOREOVER, THE ASSESSEES ASSESS MENT IS ALSO COMPLETED U/S.143(3) OF THE ACT. THERE IS NO CONCE PT OF NON- COMPLIANCE ATTITUDE, BECAUSE ON EVERY DATE, THE ASS ESSEE WAS SHOWING THE RESPONSE BY FILING THE ADJOURNMENT LETT ERS. IF THE ASSESSING OFFICER WAS OF THE OPINION THAT THERE WAS NO REASONABLE CAUSE, HE COULD HAVE REJECTED THE ASSESSEES REQUES T FOR ADJOURNMENTS AND COULD HAVE PASSED THE BEST JUDGEME NT ASSESSMENT. NOWHERE THERE IS A SPECIFIC CHARGE IN THE ASSESSMENT 4 ORDER ALSO THAT THE ASSESSEE DELIBERATELY ACTED IN DEFIANCE OF LAW OR ACTED IN CONSCIOUS DISREGARD OF HIS OBLIGATIONS. 4.2 IN THE CASE OF HINDUSTAN STEEL LTD. VS. STATE O F ORISSA REPORTED IN 83 ITR 26 THE HONBLE SUPREME COURT HAS HELD AS UNDER : AN ORDER IMPOSING PENALTY FOR FAILURE TO CARRY OUT A STATUTORY OBLIGATION IS THE RESULT OF A QUASI CRIMINAL PROCEE DING, AND PENALTY WILL NOT ORDINARILY BE IMPOSED UNLESS THE PARTY OBLIGED, EITHER ACTED DELIBERATELY IN DEFIANCE OF LAW OR WAS GUILTY OF CO NDUCT CONTUMACIOUS OR DISHONEST, OR ACTED IN CONSCIOUS DISREGARD OF IT S OBLIGATION. PENALTY WILL NOT ALSO BE IMPOSED MERELY BECAUSE IT IS LAWFU L TO DO SO. WHETHER PENALTY SHOULD BE IMPOSED FOR FAILURE TO PERFORM A STATUTORY OBLIGATION IS A MATTER OF DISCRETION OF THE AUTHORI TY TO BE EXERCISED JUDICIALLY AND ON A CONSIDERATION OF ALL THE RELEVA NT CIRCUMSTANCES. 4.3 IN OUR OPINION, THERE IS NO JUSTIFICATION ON TH E FACTS OF THIS CASE TO LEVY PENALTY ON THE ASSESSEE. WE ACCORDINGLY DE LETE THE PENALTY AND ALLOW THE GROUND TAKEN BY THE ASSESSEE. 5. NOW WE TAKE UP ITA NO.1679/PN/2013. IN THIS CAS E ALSO, THE ASSESSING OFFICER HAS LEVIED THE PENALTY OF RS.10,0 00/- U/S.271(1)(B) OF THE ACT FOR NON-COMPLIANCE WHICH HAS BEEN CONFIR MED BY THE LD.CIT(A). IT APPEARS THAT THE ASSESSEE FILED THE RETURN OF INCOME FOR THE A.Y. 2009-10 ON 31-07-2009. THE ASSESSEES CAS E WAS SELECTED FOR SCRUTINY. THE ASSESSEE WAS ISSUED NOTICES U/S. 142(1) AND 143(2) ON 21-09-2010 REQUIRING THE ASSESSEE TO ATTEND ON 2 7-10-2010. THE ASSESSEES CHARTERED ACCOUNTANT FILED THE ADJOURNME NT LETTERS REQUESTING THE ADJOURNMENT. FROM TIME TO TIME, THE CASE WAS ADJOURNED AND FINALLY THE ASSESSMENT ORDER WAS PASS ED U/S.143(3) ON 28-09-2011. IN THE OPINION OF THE ASSESSING OFFICER , THE ATTITUDE OF THE ASSESSEE WAS NON-COMPLYING, THEREFORE, HE LEVIE D THE PENALTY U/S.271(1)(B) OF RS.10,000/-. THE LD.CIT(A) CONFIRM ED THE PENALTY AND THE ASSESSEE IS IN APPEAL BEFORE US. 5 6. WE HAVE HEARD THE PARTIES. ON THE IDENTICAL SET OF FACTS, WE HAVE DELETED THE PENALTY IN THE CASE OF SHRI RADHYE SHAM JHUNJHUNWALA IN ITA NO.1678/PN/2013. FOLLOWING OUR REASONS FOR DELETING THE PENALTY IN THE SAID CASE, WE ALSO DELE TE THE PENALTY IN THIS CASE. ACCORDINGLY, THE GROUND TAKEN BY THE AS SESSEE IS ALLOWED. 7. IN THE RESULT, BOTH THE APPEALS ARE ALLOWED. PRONOUNCED IN THE OPEN COURT ON 12-09-2014. SD/- SD/- (R.K. PANDA) (R.S. PAD VEKAR) ACCOUNTANT MEMBER JUDICIAL MEM BER PUNE DATED: 12 TH SEPTEMBER 2014 SATISH COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. CIT(A), AURANGABAD 4. CIT, AURANGABAD 5. THE D.R, B PUNE BENCH 6. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY ITAT, PUNE BENCHES, PUNE