Rithin Bandhu Ghosh, Kolkata V. I.T.O Wd - 40(2),kolkata, Kolkata

ITA 1750/KOL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4558 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 1 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 02-06-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 04-06-2013
• Court: TRIBUNAL
• Department Lawyers: DEBASISH LAHIRI
• Assessee Lawyers: N O N E
• Keywords: Reasonable cause
• Section: 273B; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA [BEFORE SHRI N. V. VASUDEVAN, JM & SHRI M. BALAGAN ESH, AM] I.T.A NO.1750/KOL/2013 ASSESSMENT YEAR: 2006-07 RATHIN BANDHU GHOSH VS. INCOME-TAX OFFICER, WD- 40(2), KOLKATA (PAN: AGVPG7227Q) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 02.06.2016 DATE OF PRONOUNCEMENT: 08.07.2016 FOR THE APPELLANT: N O N E FOR THE RESPONDENT: SHRI DEBASISH LAHIRI, JCIT, SR. DR ORDER PER SHRI M. BALAGANESH, AM: THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-XII, KOLKATA VIDE APPEAL NO. 35/XII/40(2)/09-10 DATED 11.01.2013. ASS ESSMENT WAS FRAMED BY ITO, WARD-40(2), KOLKATA U/S. 144 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR AY 2006-07 VIDE HIS ORDER DATED 08.12.20 08. PENALTY U/S. 271(1)(B) OF THE ACT WAS IMPOSED BY ITO, WD-40(2), KOLKATA VIDE HIS ORDER DATED 21.04.2009. 2. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL IS A S TO WHETHER THE LEARNED CITA IS JUSTIFIED IN UPHOLDING THE LEVY OF PENALTY U/S 271( 1)(B) OF THE ACT IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE BRIEF FACTS OF THIS ISSUE IS THAT THE ASSES SEE WAS THE PROPREITOR OF BUSINESS CONCERN M/S. GHOSH AGENCY. THE NATURE OF BUSINESS WAS LABOUR CONTRACT. P&L A/C, BALANCE SHEET, COMPUTATION ETC. WERE FURNISHED ALON G WITH RETURN. THE LEARNED AO OBSERVED THAT NOTICES FOR HEARING WERE SERVED ON 6. 8.2007 FIXING THE HEARING ON 8.10.2007 ; SERVED ON 24.6.2008 FIXING THE HEARING ON 30.6.2008 . THE ASSESSEE NEITHER APPEARED IN PERSON NOR FILED ANY WRITTEN SUBMISSION S IN SUPPORT OF THE CLAIM IN THE RETURN. THE LEARNED AO ACCORDINGLY WAS FORCED TO C OMPLETE THE ASSESSMENT U/S 144 OF THE ACT ON 8.12.2008. PENALTY PROCEEDINGS U/S 271( 1)(B) OF THE ACT WERE INITIATED BY THE LEARNED AO FOR NON-COMPLIANCE TO STATUTORY NOTICES ON VARIOUS DATES. DURING THE COURSE OF PENALTY PROCEEDINGS, THE LEARNED AO FIXED THE DA TE OF HEARING ON 22.1.2009 BY 2 ITA NO.1750/K/2013 RATHIN BANDHU GHOSH AY 2006-07 ISSUING NOTICE ON 8.12.2008 AND SIMILARLY FIXING T HE DATE OF HEARING ON 21.4.2009 BY GIVING FRESH NOTICE , FOR WHICH ALSO, THERE WAS NO RESPONSE FROM THE ASSESSEE. SINCE NO REPLY WAS FORTHCOMING FROM THE ASSESSEE, THE LEARNE D AO PROCEEDED TO LEVY PENALTY U/S 271(1)(B) OF THE ACT TO THE TUNE OF RS. 10,000/-. BEFORE THE LEARNED CITA, THE ASSESSEE PLEADED THAT THE ASSESSEE WAS SUFFERING FROM CHRONI C GASTICITIES AND WAS ADVISED COMPLETE REST FROM 4.12.2008 FOR A PERIOD OF TWO MO NTHS AND ACCORDINGLY NO COMPLIANCE WAS MADE BY THE ASSESSEE BEFORE THE LEARNED AO. T HE LEARNED AO HOWEVER, NOT CONVINCED WITH THIS REPLY, CONFIRMED THE LEVY OF PE NALTY. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUNDS:- 1. THAT IMPOSING OF PENALTY OF RS.10000/- IS WHIM SICAL AND BAD IN LAW. 2. THAT THE ASSESSEE SUFFERED FROM MEDICAL AILMENT FOR WHICH DR.S CERTIFICATE WAS PRODUCED. 3. THAT REASONABLE OPPORTUNITY OF HEARING WAS HOT G IVEN TO THE ASSESSEE AT ALL. 4. THAT PENALTY ORDER IMPOSING PENALTY OR EVEN NOTI CE FOR ASSESSMENT PROCEEDINGS WERE SERVED ON THE ASSESSEE AT A DIFFERENT ADDRESS OTHER THAN THE ADDRESS AS RECORDED BY US. 5. THAT PREVIOUSLY NOTICE WAS BEING SERVED AT THE A DDRESS 108A/H/3, NARKELDANGA NORTH ROAD, KOLKATA-700011 BUT THE ASSESSEE WAS LEAVING A T 106A/H/3, NARKELDANGA NORTH ROAD, KOLKATA-700011. EVEN THE HONOURABLE CIT(A) DE PT. HAS SENT THE ORDER IN A WRONG ADDRESS EVEN THOUGH CORRECT ADDRESS WAS SUBMITTED B Y US. 6. THAT IN VIEW OF ABOVE THE NOTICE WAS NOT SERVED PROPERLY ON THE ASSESSEE. 7. THAT IMPOSING OF PENALTY OF RS. 10000.00 TO A GE NERAL PUBLIC WORKER WHOSE JOB IS ONLY AS A WORKER TO PAINT THE HOUSES OF THE PRIVATE PART IES AT A MINIMUM LABOUR COST IS UNETHICAL. 8. THAT AS MENTIONED BY LD. CIT (A) THAT THE CASE C AN BE REPRESENTED BY SOME OTHER AUTHORIZED REPRESENTATIVE IS CORRECT BUT FOR YOUR K IND INFORMATION NEITHER THE ASSESSEE HAS MEANS TO APPOINT SUCH A REPRESENTATIVE NOR HAVE THE KNOWLEDGE OF AUTHORIZED REPRESENTATIVE. BASICALLY THEY HAVE NO MINIMUM EDUC ATION AND AS SUCH DEPEND ON QUACK PERSONS WHO HAS MISGUIDED HIM. 9. THAT CHARGING PENALTY OF RS.10,000/- TO A WORKER WHO IS PUZZLED TO MAINTAIN THEIR DAILY LIFE WITH MINIMUM MEANS TO EARN IS NOT ONLY A COERC ION BUT ALSO A THRUST TO THEIR LIFE. IN VIEW OF THE ABOVE WE WOULD REQUEST YOUR HONOUR T O KINDLY WAIVE THE PENALTY OF RS. 10000.00 AS IMPOSED ON THE ASSESSEE WHO IS NONE BUT A WORKER/LABOUR WHOSE LIFE IS MISERABLE TO EARN LIVELIHOOD. 4. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPIT E THE FACT THAT THE NOTICE FOR HEARING WAS DULY SERVED ON THE ASSESSEE. ACCORDIN GLY, WE PROCEED TO DISPOSE OFF THIS APPEAL AFTER HEARING THE LEARNED DR AND BASED ON TH E MATERIALS AVAILABLE ON RECORD. THE LEARNED DR VEHEMENTLY SUPPORTED THE ORDERS OF T HE LOWER AUTHORITIES. WE FIND THAT THE ASSESSEE HAD EVEN RAISED A GROUND BEFORE THE LE ARNED CITA THAT HE WAS SUFFERING FROM CHRONIC GASTICITIES AND WAS ADVISED COMPLETE R EST FROM 4.12.2008 FOR A PERIOD OF TWO MONTHS AND ACCORDINGLY, NOT ABLE TO COMPLY WITH THE VARIOUS STATUTORY NOTICES ISSUED BY THE REVENUE. IN FACT, IN THE GROUNDS RAI SED BEFORE US, HE HAD EVEN STATED THAT 3 ITA NO.1750/K/2013 RATHIN BANDHU GHOSH AY 2006-07 THE NOTICES WERE SERVED ON THE WRONG ADDRESS BY THE DEPARTMENT DESPITE INTIMATION OF NEW ADDRESS IN ADVANCE. WE FIND THAT THE EXPLANATI ON GIVEN BY THE ASSESSEE DESERVES TO BE ACCEPTED AND WE HOLD THAT THE ASSESSEE HAD ADDUC ED REASONABLE CAUSE IN TERMS OF SECTION 273B OF THE ACT AND HENCE, THE PENALTY LEVI ED U/S 271(1)(B) OF THE ACT IS HEREBY CANCELLED. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. 6. ORDER IS PRONOUNCED IN THE OPEN COURT ON 08.07.2 016 SD/- SD/- (N. V. VASUDEVAN) (M. BALAGANESH) JUDICIAL MEMBER ACCOUNTAN T MEMBER DATED : 8 TH JULY, 2016 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT SHRI RATHIN BANDHU GHOSH, 16, BAGMARI L ANE, BLOCK- VIII, FLAT NO. 22, KOLKATA-700 054 2 RESPONDENT ITO, WARD-40(2), KOLKATA. 3 . THE CIT(A), KOLKATA 4. 5. ACIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .