Abhishek Verma, New Delhi V. ACIT, New Delhi

ITA 1722/DEL/2013

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 7327 (ITAT-DELHI)
• Duration Of Justice: 7 year(s) 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 17-07-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 25-03-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SATPAL GULATI
• Section: 142(1); 292BB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI FRIDAY BENCH A : NEW DELHI (THROUGH VIDEO CONFERENCING) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 1722/DEL/2013 A.Y. 2006-07 ABHISHEK VERMA, C/O MR. GAURAV CHANDHOK, CHAMBER N. 636, DWARKA COURTS, SECTOR-10, NEW DELHI - 75 (PAN: ABMPV5153C) VS. ACIT, CETNRAL CIRCLE -12, ARA CENTRE, JHANDEWALAN EXTN., NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY : SH. HIMANSHU AGGARWAL & SH. LALIT MOHAN, CA RESPONDENT BY : SH. SATPAL GULATI, CIT(DR) ORDER PER H.S. SIDHU, JM : THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE I MPUGNED ORDER DATED 22.1.2013 PASSED BY THE LD. CIT(A)-XXXI , NEW DELHI FOR THE ASSESSMENT YEAR 2006-07 ON THE FOLLOWING G ROUNDS:- 1. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL C IRCLE- 12, NEW DELHI WHO PURPORTEDLY ISSUED THE NOTICE U/ S. 142(1) OF THE I.T. ACT, CONDUCTED THE PROCEEDINGS A ND IMPOSED THE PENALTY WAS NOT AUTHORIZED TO EXERCISE THE POWER AND PERFORM THE FUNCTIONS OF THE ASSESSING O FFICER AND THEREFORE, THE SAID NOTICE AS WELL AS THE PENA LTY ORDER ARE INVALID, NULL AND VOID AB INITIO. ITA-1722/DEL/2013 AY-2006-07 2 2. NOTICE, DATED 22.8.2006, U/S. 142(1) OF THE ACT DIR ECTING THE APPELLANT TO FURNISH THE RETURN OF INCOME WAS N OT SERVED UPON THE APPELLANT AND EVEN THE PENALTY ORD ER SPEAKS ONLY ABOUT ISSUANCE OF THE NOTICE AND IS TO TALLY SILENT REGARDING SERVICE THEREOF AND THE IMPOSITI ON OF PENALTY, WITHOUT SERVICE OF THE NOTICE, IS INVALID , NULL AND VOID AB INITIO. 2.1 THE LD. CIT(A) FAILED TO APPRECIATE THAT ANY OTHER NOTICE WAS NOT ISSUED BY THE LD. ACIT DIRECTING THE ASSESS EE TO FILE THE RETURN OF INCOME. 3. THE LD. CIT(A) ERRED IN CONFIRMING THE IMPOSITION O F PENALTY OF RS. 10,000/- U/S. 271(1)(B) OF THE AC T FOR NOT FILING THE RETURN OF INCOME, PARTICULARLY WITHOUT D ETERMINING THAT THE INCOME IS TAXABLE AND BY IGNORING THE FACT THAT PENALTY FOR NON FILING OF RETURN OF INCOME IS PRESC RIBED U/S. 271F OF THE ACT. 4. THE LD. CIT(A) ERRED IN HOLDING THAT SECTION 292BB OF THE ACT IS APPLICABLE. 5. THE LD. ACIT AS WELL AS THE LD. CIT(A) HAD MADE OBSERVATIONS WHICH ARE WITHOUT ANY MATERIAL OR EVID ENCE ON RECORD AND AGAINST THE FACTS OF THE CASE. 6. THE PENALTY ORDER AS WELL THE ORDER OF THE LD. CIT( A) IS AGAINST THE FACTS AS WELL AS LAW. 2. THE BRIEF FACTS OF THE CASE ARE THAT NOTICE U/S. 142(1) OF THE INCOME TAX ACT, 1961 (IN SHORT ACT) WAS SENT TO THE ASSESSEE ON 22.8.2006 ASKING THE ASSESSEE TO FILE TRUE AND CO RRECT RETURN OF HIS INCOME FOR THE ASSESSMENT YEAR 2006-07 OR TO PR ODUCE ITS INCOME TAX RETURN FOR THE ASSESSMENT YEAR 2006-07. DATE OF HEARING WAS FIXED FOR 15.9.2006 BUT NONE APPEARED FOR HEARING NOR FILED ANY APPLICATION FOR ADJOURNMENT. AO ISSUED A NOTICE U/S. 142(1) OF THE ACT, QUESTIONNAIRE AND SHOW CAUSE NOT ICE U/S. ITA-1722/DEL/2013 AY-2006-07 3 271(1)(B) OF THE ACT FOR THE ASSESSMENT YEAR 2006-0 7 DATED 01.10.2008 AND WAS SERVED ON THE ASSESSEE ON 03.10. 2008. ASSESSEE WAS ASKED TO GIVE REPLY BY 13.10.2008. ON 06.10.2008, A FAX WAS RECEIVED FROM THE ASSESSEE DENYING THE SERVICE OF NOTICE AND SENT THE INTIMATION TO THE AO FOR SENDING ALL NOTICES / SUMMONS AND OTHER DOCUMENTS ON THE ADDRESS OF HIS ADVOCATE IN PATIALA HOUSE I.E. ABHISHEK VERMA, C/O MR. JITENDRA GARG, ADVOCATE, CHAMBER 137, PATIALA HOUSE COURTS, NEW DE LHI 110 003 (TEL#[phone]). ON 10.10.2008 THE ASSESSEE SENT A LETER BY SPEED POST WHICH WAS RECEIVED BY THE AO ON 13.10 .2008. IN REPLY TO THE SAME, A LETTER WAS WRITTEN TO ASSESSEE ON 15.10.2008 REQUESTING FOR APPEARANCE THROUGH HIS AUTHORISED RE PRESENTATIVE IN THE PENALTY PROCEEDINGS AND ALSO STATED THAT NO FU RTHER ADJOURNMENT WILL BE GIVEN TO THE ASSESSEE. ON 23.10 .2008 SH. SACHIN KUMAR, AUTHORISED REPRESENTATIVE OF THE ASSE SSEE APPEARED FOR HEARING AND PRODUCED THE POWER OF ATTORNEY. HE WAS ASKED TO FILE THE DETAILS ASKED IN THE QUESTIONNAIRE. HE WA S ALSO SHOWN COPY OF NOTICE U/S. 142(1) OF THE ACT DATED 22.8.2006 WH ICH HAD REMAINED UN-COMPLIED. THE AUTHORISED REPRESENTATI VE OF THE ASSESSEE ASKED FOR TWO WEEKS TIME TO REPLY THE NOTI CE U/S. 142(1) OF THE ACT AND QUESTIONNAIRE. THE NEXT DATE OF HE ARING WAS FIXED FOR 04.11.2008. ON 4.11.2008 AGAIN SH. SACHIN KUMAR APPEARED FOR HEARING. NEXT DATE FOR HEARING WAS FIXED FOR 11.1 1.2008. ON 11.11.2008 THE AUTHORISED REPRESENTATIVE OF THE ASS ESSEE AGAIN APPEARED FOR HEARING AND FILED A LETTER ASKING FOR ADJOURNMENT AS HE WAS UNABLE PRODUCE THE DETAILS CALLED FOR. THE AUTH ORISED REPRESENTATIVE OF THE ASSESSEE AGAIN ASKED ON WHY THE PENALTY U/S. 271(1)(B) OF THE ACT SHOULD NOT BE IMPOSED AS NO RETURN TILL DATE HAS BEEN FILED IN RESPONSE TO THE NOTICE U/S. 142(1) OF THE ACT. HE WAS FURTHER ASKED TO PROVIDE OTHER INFORMATION AND NEXT DATE OF HEARING WAS FIXED FOR 14.11.2008. ON 14.11.2008, SH . SACHIN KUMAR, AUTHORISED REPRESENTATIVE OF THE ASSESSEE A GAIN APPEARED ITA-1722/DEL/2013 AY-2006-07 4 FOR HEARING AND FILED A LETTER DATED 10.11.2008. T HE AUTHORISED REPRESENTATIVE WAS NOT ABLE TO FILE ANY REPLY TO TH E QUERIES. THE AUTHORISED REPRESENTATIVE WAS AGAIN ASKED WHY NO R ETURN OF INCOME HAS BEEN FILED TILL DATE TO WHICH THE AUTHO RISED REPRESENTATIVE PLEADED HIS IGNORANCE. 2.1 KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES AS EXPLAINED ABOVE, THE ASSESSING OFFICER WAS OF THE VIEW THAT I N SPITE OF THE VARIOUS OPPORTUNITIES GIVEN BY HIM TO THE ASSESSEE FOR FILING HIS RETURN OF INCOME, BUT IN SPITE OF THE SAME AND SHOW CAUSE NOTICES, PENALTY U/S. 271(1)(B) OF THE ACT AMOUNTING TO RS. 10,000/- WAS IMPOSED FOR FAILING TO FILE THE RETURN OF INCOME, V IDE ORDER DATED 14.11.2008. AGAINST THE PENALTY ORDER DATED 14.11.2 008, ASSESSEE APPEALED BEFORE THE LD. FIRST APPELLATE AUTHORITY, WHO VIDE HIS IMPUGNED ORDER DATED 22.01.2013 DISMISSED THE APPE AL FILED BY THE ASSESSEE. NOW THE ASSESSEE HAS FILED THE PRESE NT APPEAL BEFORE THE TRIBUNAL AGAINST THE IMPUGNED ORDER DATED 22.1 .2013 PASSED BY THE LD. CIT(A)-XXXI, NEW DELHI. 3. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSE SSEE REITERATED THE ARGUMENTS ADVANCED BY THE ASSESSEE BEFORE THE R EVENUE AUTHORITIES AND REQUESTED THAT THE PENALTY IN DISPU TE MAY BE DELETED. 4. ON THE CONTRARY, LD. CIT(DR) RELIED UPON THE IMP UGNED ORDER PASSED BY THE LD. CIT(A), NEW DELHI AND STATED THAT IN SPITE OF THE VARIOUS OPPORTUNITIES GIVEN TO THE ASSESSEE FOR FI LING THE RETURN OF INCOME FOR THE ASSESSMENT YEAR IN DISPUTE, ASSESSEE HAS NOT FILED ANY RETURN OF INCOME AND THE AO AFTER ISSUING THE S HOW CAUSE NOTICE, AS PER LAW IMPOSED THE PENALTY IN DISPUTE A ND LD. CIT(A) HAS RIGHTLY DISMISSED THE APPEAL FILED BY THE ASSES SEE. THEREFORE, THE APPEAL FILED BY THE ASSESSEE MAY BE DISMISSED. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE O RDERS OF THE AUTHORITIES BELOW ESPECIALLY THE IMPUGNED ORDER OF THE LD. CIT(A) AND WE ARE OF THE VIEW THAT LD. CIT(A) HAS RIGHTLY DISMISSED THE ITA-1722/DEL/2013 AY-2006-07 5 GROUNDS RAISED BY THE ASSESSEE REGARDING THE JURISD ICTION OF THE ASSESSING OFFICER BY HOLDING THAT THIS PENALTY PROC EEDINGS HAS BEEN INITIATED AFTER THE INSERTION OF SECTION 292BB IN T HE STATUTE AND ON THE DATE OF LEVYING THE PENALTY I.E. 29.06.2010, T HE PROVISION WAS VERY MUCH ON THE STATUTE. WE AGREE WITH THE FINDI NGS GIVEN BY THE LD. CIT(A) AND REJECT THIS PLEA OF JURISDICTION OF THE ASSESSEE. 5.1 AS REGARDS THE SERVICE OF NOTICE UNDER SECTIO N 142(1) OF THE ACT, AFTER GOING THROUGH THE ORDERS PASSED BY THE R EVENUE AUTHORITIES, WE ARE OF THE VIEW THAT NOTICE U/S. 14 2(1) OF THE I.T. ACT, 1961 DATED 22.8.2006 WAS SENT TO THE ASSESSEE TO FILE THE RETURN OF INCOME OR TO PRODUCE THE PROOF OF HAVING FILED THE RETURN OF INCOME FOR THE CURRENT ASSESSMENT YEAR AND OTH ER NOTICE U/S. 142(1) OF THE ACT ALOGNWITH QUESTIONNAIRE AND SHOW CAUSE NOTICE U/S. 271(1)(B) OF THE ACT ISSUED BY THE AO HAVING S ERVED UPON THE ASSESSEE ON 03.10.2008 WHEN THE ASSESSEE WAS IN THE TIS HAZARI COURTS, DELHI. THE ASSESSEE HAS ALSO GIVEN HIS REP LY DATED 06.10.2008 THAT HE HAS NOT RECEIVED THE EARLIER N OTICES AND GIVEN THE NEW ADDRESS OF HIS ADVOCATE AND HE FURTHER SEN T A LETTER DATED 10.10.2008 AND ARGUED THAT HAVING NOT RECEIVED THE EARLIER NOTICES U/S. 142(1) OF THE ACT AND THERE COULD NOT BE ANY P ROCEEDINGS PENDING UNDER THE ACT BEFORE THE ASSESSING OFFICE R MEANING THEREBY THE ASSESSEE IS HAVING THE KNOWLEDGE OF A LL THE NOTICES WHICH HAS ALREADY BEEN SERVED UPON THE ASSESSEE A ND HE WAS WATCHING THE PROCEEDINGS THROUGH HIS COUNSEL/AUTHOR ISED REPRESENTATIVE. ASSESSEE HAS ALSO REQUESTED FOR VA RIOUS ADJOURNMENTS WHICH WAS GIVEN BY THE ASSESSING OFFIC ER. SH. SACHIN KUMAR, CA/AUTHORISED REPRESENTATIVE OF THE ASSESSEE APPEARED BEFORE THE AO AND FILE HIS POWER OF ATTORNEY AND RE QUESTED FOR VARIOUS ADJOURNMENTS WHICH WERE GRANTED BY THE AO, BUT IN SPITE OF THE VARIOUS ADJOURNMENTS GIVEN BY THE AO TO THE LD . AUTHORISED REPRESENTATIVE OF THE ASSESSEE, NO RETURN OF INCOM E WAS FILED BY THE ASSESSEE IN SPITE OF THE VARIOUS OPPORTUNITIES GIVEN BY THE AO ITA-1722/DEL/2013 AY-2006-07 6 TO THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE AN D LASTLY THE AUTHORSIED REPRESENTATIVE OF THE ASSESSEE SHOWS HIS INABILITY AND THEREFORE, THE AO HAS RIGHTLY IMPOSED THE PENALTY I N DISPUTE AND THE LD. CIT(A) HAS ALSO RIGHTLY DISMISSED THE APPEAL FI LED BY THE ASSESSEE. 6. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE NON-COOPERATION OF THE ASSESSEE BEFORE THE AUTHORITIES BELOW, WE ARE OF THE VIEW THAT THE ASSESSEE IS NOT ENTITLED FOR ANY LENIENCY IN THIS MATTER. THEREFORE, WE UPHOLD THE IMPUGNED ORDER OF THE LD. CIT(A) BY DISMISSING THE APPEAL FILED BY THE ASSESSEE. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSES SEE STANDS DISMISSED. ABOVE DECISION WAS ANNOUNCED ON 25 TH JANUARY, 2021 IN THE OPEN COURT. SD/- SD/- (PRASHANT MAHARISHI) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER SRB. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR