Shri Shailesh Dungarbhai Prajapati, Ahmedabad V. The Income tax Officer,Ward-9(4), Ahmedabad

ITA 1812/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 85533 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 15-07-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Keywords: Bonafide belief; Reasonable cause
• Section: 273B; 142(1); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI N.S. SAINI , ACCOUNTANT MEMBER ITA NO . 1812 /AHD/20 1 1 A. Y. 20 0 8 - 09 MR. SHAILESH DUNGARBHAI PRAJAPATI, M.K. HOUSE, NR. TIRYPATI MARBLES, GAN DHINAGAR HIGHWAY ROAD, SABARMATI, AHMEDABAD. PAN: AGCPP 8621N VS ITO, WARD - 9 ( 4 ), AHMEDABAD. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI DINESH SINGH , SR. D.R. , ASSESSEE(S) BY : SHRI SUNIL TALATI , A.R. / DATE OF HEARING : 2 3 / 1 2 /201 4 / DATE OF PRONOUNCEMENT: 9 / 01 /201 5 / O R D E R PER SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER THIS IS AN A PPEAL FILED BY THE ASSESSEE ARISING FROM THE ORDER OF T HE L EARNED CIT(A) - XV , AHMEDABAD , DAT ED 19.04 .201 1 AGAINST THE LEVY OF PENALTY OF RS.70,000/ - U/S .271(1)( B ) OF IT ACT. 2. WHILE LEVYING THE PENALTY U/S.271(1)(B) VIDE ORDER DATED 23 RD OF SEPTEMBER, 2010 THE AO HAS OBSERVED THAT ON SEVEN OCCASIONS NOTICES U/S.143(2), 142(1) AND 271(1)(B) WERE ISSUED, BUT ALL THOSE REMAINED UNATTENDED. THEREFORE, IT WAS HELD THAT THE ASSESSEE WAS NON - COOPERATIVE AND FAILED TO COMPLY WITH THOSE NOTICES. FOR EACH DEFAULT A PENALTY OF RS.10,000/ - TOTALING RS.70,000/ - WAS IMPOSE D ON THE ASSESSEE. WHEN THE ITA NO. 1 812 /AHD/201 1 SHRI SHAILESH DUNGARBHAI PRAJAPATI VS. ITO, WARD - 9 ( 4 ), AHMEDABAD . FOR A.Y. 20 08 - 09 - 2 - MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AUTHORITY, LEARNED CIT(A) HAS AFFIRMED THE ACTION OF THE AO IN THE FOLLOWING MANNER: 2. WRITTEN SUBMISSION WAS RECEIVED FROM THE LEARNED A.R STATING THAT THE COMPLIANCE WAS NOT MADE BECAUSE THE APPELLANT WAS UNDER A BELIEF THAT THIS CASE WOULD BE CENTRALIZED IN CENTRAL CIRCLE THROUGH ORDER U/S. 127 CONSEQUENT TO SEARCH IN HIS CASE, BUT NO SUCH ORDER CAME AND AFTER THAT THE APPELLANT STARTED ATTENDING TO THE NOTICES. 3. AFTER GOING TH ROUGH RIVAL SUBMISSIONS I AM OF THE VIEW THAT INSTEAD OF SITTING SILENT ON THE NOTICES OF THE AO THE APPELLANT SHOULD HAVE TAKEN THE CARE AND COURTESY TO INFORM THE AO ABOUT HIS SO CALLED BONAFIDE BELIEF. HE CAUSED UNNECESSARY AND AVOIDABLE STRESS TO THE A O BY NOT RESPONDING TO A SERIES OF NOTICES AND NOT FURNISHING ANY INFORMATION, I AM THEREFORE OF THE VIEW THAT HE DOES NOT DESERVE ANY RELIEF. THE PENALTY IS UPHELD. 3. AT THE OUTSET, LEARNED AR, MR. SUNIL TALATI HAS PLACED BEFORE US AN ANOTHER ORDER FOR A.Y. 2008 - 09 WHICH WAS PASSED U/S.153C R.W.S. 153A DATED 23.12.2011 IN ADDITION TO THE ASSESSMENT ORDER ENCLOSED WITH THE APPEAL MEMO PASSED U/S.143(3) DATED 16.12.2010 THAT TOO FOR A.Y.2008 - 09. LEARNED AR HAS ARGUED THAT TWO ASSESSMENT ORDERS WERE PASSED FOR THE SAME ASSESSEE IN RESPECT OF THE SAME A.Y. 2008 - 09. THE IMPUGNED PENALTY WAS LEVIED BY AN ORDER PASSED U/S.143(3) DATED 16.12.2010 AND NO SUCH PENALTY WAS LEVIED IN RESPECT OF SECOND ORDER WHICH WAS SUBSEQUENTLY PASSED U/S. 153C DATED 23.12.2011. H IS ARGUMENT WAS THAT AFTER THE SEARCH OPERATION CONDUCTED ON 08.12.2009 THE RECORDS OF THE ASSESSEE WERE CENTRALIZED AND THE AO WHO HAD ISSUED THE NOTICES HAD NO JURISDICTION OVER THE ASSESSEE. ACCORDING TO HIM, THE PENALTY WAS WRONGLY IMPOSED. 4. FROM TH E SIDE OF THE REVENUE, LEARNED SR.D.R., MR. DINESH SINGH SUPPORTED THE ACTION OF THE AO. ITA NO. 1 812 /AHD/201 1 SHRI SHAILESH DUNGARBHAI PRAJAPATI VS. ITO, WARD - 9 ( 4 ), AHMEDABAD . FOR A.Y. 20 08 - 09 - 3 - 5. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES. OUR FIRST OBSERVATION IS THAT THERE WAS LACK OF CO - ORDINATION AMONG THE OFFICERS OF THE REVENUE DEPARTMENT. ONCE, T HE SEARCH WAS CONDUCTED ON 08.12.2009 U/S.132 ON THE PRAJAPATI GROUP AND THE RECORDS OF THE REVENUE DEPARTMENT WERE CENTRALIZED THEN THE AO SHOULD NOT HAVE PASSED THE IMPUGNED ORDER U/S.143(3) DATED 16.12.2010 IN THE CAPACITY OF INCOME TAX OFFICER WARD - 9 (4) AHMEDABAD. WE THEREFORE HOLD THAT IMPUGNED PENALTY BEING LEVIED IN CONSEQUENCE OF THE ORDER DATED 16.12.2010 U/S.143(3) WAS NOT JUSTIFIABLE IN THE EYES OF LAW. 6. AS FAR AS THE QUESTION OF NON - COMPLIANCE IS CONCERNED, WE HEREBY ACCEPT THE DEFENCE OF T HE ASSESSEE THAT THE IMPUGNED NOTICES BEING NOT ISSUED BY AN OFFICER WHO HAD THE JURISDICTION OVER THE ASSESSEE; THEREFORE, THE IMPUGNED NON APPEARANCE DID NOT TANTAMOUNT TO NON - COMPLIANCE OF A VALID NOTICE. 6.1 THIS IS ALSO A FACT THAT ON THOSE OCCASIONS THE ASSESSEE HAS NOT APPEARED BEFORE THE ITO WARD - 9(4) AHMEDABAD BUT WE HAVE NOTED THAT LATER ON THE COMPLIANCE WAS MADE AND THEREAFTER FINALLY THE ASSESSMENT ORDER WAS MADE U/S.143(3) OF IT ACT . I T WAS NOT AN EX - PARTE ORDER U/S.144 OF IT ACT. FURTHER, WE HAVE ALSO NOTED THAT THERE WAS NO SUC H COMPLAINT O F NON - COMPLIANCE IN THE FINAL ASSESSMENT ORDER PASSED BY ACIT, CENTRAL CIRCLE - 2(2) AHMEDABAD. UNDER THE TOTALITY OF THESE CIRCUMSTANCES, WE HEREBY HOLD THAT THERE WAS A REASONABLE CAUSE ON THE PART OF THE ASSESSEE WHICH HAS PREVENTED HIM IN APPEARING BEFORE THE ITO; HENCE, TAKING THE SHELTER OF EXCEPTION PRESCRIBED IN THE PROVISIONS OF SECTION 273B OF IT ITA NO. 1 812 /AHD/201 1 SHRI SHAILESH DUNGARBHAI PRAJAPATI VS. ITO, WARD - 9 ( 4 ), AHMEDABAD . FOR A.Y. 20 08 - 09 - 4 - ACT, WE HEREBY HOLD THAT THERE WAS REASONABLE CAUSE FOR THE SAID FAILURE FOR WHICH NO PENALTY SHOULD BE IMPOSED. WE HOLD ACCORDINGLY. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. SD/ - SD/ - ( N.S. SAINI ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHM EDABAD; DATED 09 / 01 / 20 1 5 PRABHAT KR. KESARWANI , SR. P . S . / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) - III, AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD