Shri Ghanshyambhai Popatbhai Patel, Surat V. The Income Tax Officer, Ward-8(3), Surat

ITA 1730/AHD/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1680 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 02-05-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 12-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VARTIK R CHOKSI
• Keywords: Non compliance
• Section: 143(3); 142(1); 131; 27; 6; 144

Judgement Text

IT A NO S . 17 29 & 1730 /AHD/2013 A.Y S . 200 6 - 07 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH, AHMEDABAD BEFORE SHRI ANIL CHATURVEDI , ACCOUNTANT MEMBER AND SHRI S.S. GODARA , JUDICIAL MEMBER I TA NO S . 17 29 & 1730 /AHD /201 3 ASSESSMENT YEAR S : 200 6 - 07 GHANSHYAMBHAI POPATBHAI PATEL, VS. JT. C OMMISSIONER OF INCOME TAX, 20, NITYANAND SOCIETY, RANGE - 8, SURAT. LAXMIKANT ASHRAM ROAD, KATARGAM, SURA T 395 004 . [PAN A GBPP 9570 F ] (APPELLANT ) (RESPONDENT) APPELLANT BY : SHRI VARTIK R. CHOKSI, A.R. RESPONDENT BY : S HRI MUDIT NAGPAL , SR. D.R. DATE OF HEARING : 02 .0 5 . 20 16 DATE OF PRONOUNCEMENT : 12 .0 5 .2016 O R D E R PER ANIL CHATURVEDI, A .M. TH ESE APPEAL S FILED BY THE ASSESSEE ARE AGAINST TWO SEPARATE ORDER S OF LEARNED CIT ( A ), SURAT , BOTH DATED 22.04 . 2013 , FOR THE ASSESSMENT YEAR 200 6 - 0 7 . 2. THE RELEVANT FACTS AS CULLED OUT F R OM THE MA TERIALS ON RECORD ARE AS UNDER : - 3. THE ASSESSEE IS AN INDIVIDUAL ENGAGE D IN THE BUSINESS OF POLISHING OF DIAMONDS. THE A SSESSEE FILED HIS RETURN OF INCOME FOR ASSESS MENT YE A R 200 6 - 07 ON 2 0 . 10 .200 6 DECLARING TOTAL INCOME OF RS. 1,24,120/ - . THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER ASSESSMENT WAS FRAMED UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 ( IN SHORT THE ACT ) VIDE ORDER DA TED 2 4.12.20 08 AND THE TOTA L INCOME WAS DETERMINED AT RS. 23,75,890/ - . WHILE FRAM ING THE ASSESSMENT ORDER, THE IT A NO S . 17 29 & 1730 /AHD/2013 A.Y S . 200 6 - 07 PAGE 2 OF 4 ASSESSING OFFICER NOTED THAT SUMMONS UNDER SECTION 131 OF THE ACT WAS ISSUED ON 21.11.2008 AND DETAILS AS LISTED IN THE SUMMONS WERE CALLED FOR FROM THE ASSESSEE. HE HAS N OTED THAT THERE WAS NO COMPLIANCE FROM THE SIDE OF THE ASSESSEE. HE HAS FURTHER NOTED THAT NOTICES UNDER SECTION 143(2) AND 142(1) OF THE ACT WERE ISSUED AND DETAILS THEREIN WERE CALLED FOR BUT DESPITE GRANTING VARIOUS OPPORTUNITIES NEITHER ANYBODY ATTEND ED NOR FURNISHED THE REQUIRED INFORMATION . THE ASSESSING OFFICER, THEREFORE, VIDE ORDER DATED 27. 03.2012 LEVIED PENALTY OF RS.10,000/ - UNDER SECTION 27 2A(1)(C) OF THE ACT FOR NON - COMPLIANCE OF HIS SUMMONS ISSUED UNDER SECTION 131 OF THE ACT. HE ALSO V IDE ORDER DA T ED 02.03.2012, LEVIED PENALTY OF RS.10,000/ - UNDER SECTION 271(1)(B) OF THE ACT FOR NON - COMPLIANCE OF NOTICES ISSU ED UNDER SECTION 143(2) & 142(1) OF THE ACT. AGGRIEVED BY THE AFORESAID PENALTY ORDER S , ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) WH O VIDE SEPARATE ORDER S DATED 22.04.2013 CONFIRMED LEVY OF PENALTY UNDER SECTION 27 2A(1)(C) THE ACT AND UNDER SECTION 271(1)(B) OF THE ACT. AGGRIEVED BY THE ORDER OF LD . CIT(A), ASSESSEE IS NOW IN APP E AL BEFORE US AND IN ITA NO.1729/AHD/2013 HAS R AISED THE FOLLOWING GROUNDS : - 1. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE OF THE APPELLANT, THE LEARN ED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW BY CONFIRMING THE PENALTY UNDER SE CTION 27 2A(1)(C) OF THE ACT OF RS.10,000/ - FOR NON ATTEND ANCE OF APPELLANT IN RESPONSE TO SUMMON UNDER SECTION 131 OF THE ACT DURING THE COURSE OF ASSESSMENT. PARTICULARLY WHEN THE ASSESSMENT WAS COMPLETED VIDE ORDER UNDER SECTION 143(3) OF THE ACT AND NOT UNDER SECTION 144 OF THE ACT , WHICH ITSELF PROVES THAT GOOD COMPLIANCE WAS GIVEN BY THE APPELLANT IN ASSESSMENT PROCEEDINGS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE PENALTY OF RS.10,000/ - MAY BE DELETED. IN IT A NO.1730/AHD/2013 THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS : - 1. ON THE FACTS A ND IN CIRCUMSTANCES OF THE CASE OF THE APPELLANT, THE LEARN ED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW BY CONFIRMING THE PENALTY UNDER SECTION 271(1)(B) OF THE ACT OF RS.10,000/ - FOR NON ATTENDING HEARING OF APPELLANT, PARTICULARLY WHEN THE AS SESSMENTS WAS COMPLETE D VIDE ORDER U/S 143(3) OF THE ACT AND NOT UNDER SECTION 144 OF THE ACT, WHICH ITSELF IT A NO S . 17 29 & 1730 /AHD/2013 A.Y S . 200 6 - 07 PAGE 3 OF 4 PROVES THAT GOOD COMPLIANCE WAS GIVEN BY THE APPELLANT IN ASSESSMENT PROCEEDINGS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE PENALTY OF RS.10,000/ - MAY BE DELETED. 4. ON THE DATE OF HEARING AN ADJOURNMENT APPLICATION WAS MOVED BY THE A SSESS EE AS KING TIME TO FILE THE PAPER BOOK . THE ADJOURNMENT APPLICATION WAS REJECTED. W E , THERE AFTER , PROCEED TO DISPOSE OF THE APPEAL EX - PARTE QUA THE A SSESSEE ON THE B A SIS OF SUBMISSION OF THE LD . D EPARTMENTAL REPRESENTATIVE AND THE MATERIAL AVAILABLE ON RECORD . 5. BEFORE US, LEARNED DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDER OF ASSESSING OFFICER AND THE LD. CIT(A) AND FURTHER SUBMITTED T HAT DESP ITE NOTICE ISSUED TO THE ASSESSEE, THE ASSESSEE DID NOT FURNISH THE REQUIRED PARTICULARS NOR RESPONDED T O THE SUMMONS ISSUED UNDER SECTION 131 OF THE ACT. UND E R SUCH SITUATION, THE ASSESSING OFFICER WAS FULLY JUSTIFIED IN LEVYING PENALTY AS PER PROVISIONS OF THE ACT. 6 . WE HAVE HEARD THE LD. D EPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESPECT TO LEVY OF PENALTY U/S. 27 2A(1)(C) AND 271(1)(B) OF THE ACT. IT IS AN UNDISPUTED FACT THAT A.O HAD ISSUE D NOTICES U/S. 143(2) & 142(1) TO THE A SSESSEE AND THE NOTICES REMAINED UN - COMPLIED BY A SSESSEE. IT IS ALSO A FACT THAT THE SUMMONS ISSUED BY ASSESSING OFFICER HAD REMAINED UNRESPONDED BY THE ASSESSEE. IT IS ALSO A FACT THAT IN THE PRESENT CASE, THE ASSES SMENT ORDER HAS BEEN FRAMED BY THE A SSESSING OFFICER U/S. 143(3) AND NOT U/S. 144 OF THE ACT. IT IS ALSO NOTED BY ASSESSING OFFICER THAT ASSESSEE HAD FILED SOME DETAILS AND THUS IT WAS NOT A CASE WHERE NO DETAILS AT ALL HAVE BEEN FURNISHED BY THE ASSESSEE. WE FIND THAT THE CO - ORDINATE BENCH IN THE CASE OF PRIYANK SHAH VS. ITO IT A NO S . 17 29 & 1730 /AHD/2013 A.Y S . 200 6 - 07 PAGE 4 OF 4 (ITA NO. 237/AHD/2013) BY FOLLOWING THE ORDER OF TRIBUNAL IN THE CASE OF KAMDHENU MOTORS PVT. LTD. V. ACIT (ITA NO. 132/AHD/2006) HAS HELD THAT WHEN ASSESSMENT ORDER HAS BEEN PASSED U /S. 143(3) AND NOT U/S. 144, THEN NON COMPLIANCE OF NOTICE IS DEEMED TO HAVE BEEN WAIVED AND , THEREFORE , PENALT Y W AS CANCELLED. RESPECTFULLY FOLLOWING THE AFORESAID DECISION OF TRIBUNAL AND IN THE ABSENCE OF ANY CONTRARY BINDING DECISION, WE ARE OF THE VIE W THAT THE ISSUE IN THE PRESENT CASE IS COVERED BY THE DECISION CITED HEREINABOVE AND , THEREFORE , NO PENALTY IS CALLED FOR. WE , THEREFORE , DIRECT THE DELETION OF PENALTY. 7 . THUS THE GROUND S OF A SSESSEE ARE ALLOWED. 8 . IN T HE RESULT, A PPEAL S OF THE AS S E SSE E ARE ALLOWED. ( THIS ORDER P RONOUNCED IN THE OPEN COURT TODAY ON TH E 12 TH DAY OF MAY , 201 6 . ) SD/ - SD/ - S.S. GODARA ANIL CHATURVEDI ( JUDICIAL MEMBER) ( ACCOUNTANT MEMBER) AHMEDABAD, THE 12 TH DAY OF MAY , 2016 PBN/* COPIES TO: (1) THE APPELLANT ( 2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AH MEDABAD