M/s Bangalaxmi Khadi Bhawan, Kolkata V. ITO, WD-52(1), KOLKATA, Kolkata

ITA 1849/KOL/2014

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1262 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 5 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-03-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 07-06-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 26-09-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S DASGUPTA CIT LD
• Assessee Lawyers: ANKIT JALAN LD
• Keywords: Initiation of penalty proceedings; Condonation of delay
• Section: 143(3); 142(1)

Judgement Text

1 ITA NOS. 1849-1852/KOL/2014 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA BEFORE: SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUD ICIAL MEMBER I.T.A NO. 1849/KOL/2014 A.Y: 2006-07 I.T.A NO. 1850/KOL/2014 A.Y: 2006-07 I.T.A NO. 1851/KOL/2014 A.Y: 2006-07 I.T.A NO. 1852/KOL/2014 A.Y: 2006-07 M/S. BANGALAXMI KHADI VS. I.T.O., WARD 52(1), BHAWAN KOLKATA PAN AAFFBO969C [APPELLANT] [RESPONDENT] FOR THE APPELLANT : SHRI ANKIT JALAN, LD.AR FOR THE RESPONDENT : SHRI S.DASGUPTA, ADDL.CIT, LD.SR.DR DATE OF HEARING : 03-01-2018 DATE OF PRONOUNCEMENT : 21-03-2018 ORDER SHRI S.S.VISWANETHRA RAVI, JM: ALL THE FOUR APPEALS BY THE ASSESSEE ARE DIRECTED A GAINST EACH SEPARATE ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS), XXXIII, KOLKATA DT. 21-01-2013, 20-12-2013,20-12-2 013 & 20-12- 2013 FOR THE A.Y 2006-07. 2. FIRST, WE SHALL TAKE UP THE APPEAL IN ITA NO. 18 49/KOL/2014 FOR THE A.Y 2006-07- QUESTIONING THE CONFIRMATION OF AS SESSMENT ORDER U/SEC 143(3) OF THE ACT. ITA NO. 1849/KOL/2014 A.Y 2006-07 ( BY THE ASSESSE E ) 3. AT THE TIME OF HEARING BEFORE US THE LD.AR SUBMI TS THAT THIS APPEAL OF ASSESSEE WAS FILED WITH A DELAY OF 538 DA YS AND REFERRED TO AN AFFIDAVIT DT. 25-11-14 FILED BY THE ASSESSEE, CO PY OF THE SAME IS ON RECORD AND ARGUED THAT THE ASSESSEE APPOINTED SHRI SWAPAN MAZUMDER, ACCOUNTANT TO LOOK AFTER THE INCOME-TAX M ATTERS AND THE SAID ACCOUNTANT LEFT HIS JOB WITHOUT ANY INFORMATIO N AND HANDING OVER 2 ITA NOS. 1849-1852/KOL/2014 NECESSARY I.T PAPERS AND BOOKS OF ACCOUNT. THE ASSE SSEE RECEIVED FROM THE SAID ACCOUNTANT NECESSARY DOCUMENTS I.E. B OOKS OF ACCOUNT, PAPERS, ASSESSMENT ORDER AND PENALTY ORDER LATE ON 23-09-2014. THE ASSESSEE IMMEDIATELY AFTER RECEIVING THE SAME FILED THIS APPEAL BEFORE THE TRIBUNAL WITH A DELAY OF 538 DAYS. THE L D. AR ALSO ARGUED THAT THE SAID DELAY CAUSED DUE TO THE SUDDEN ABSENC E OF SAID ACCOUNTANT, WHICH IS NEITHER INTENTIONAL NOR WANTON AND IN VIEW OF THE SAME, PRAYED TO CONDONE THE DELAY IN FILING THE APP EAL AND TO ADMIT THE SAME. 4. ON THE OTHER HAND, THE LD. DR HAS OBJECTED TO TH E ABOVE SUBMISSION OF THE LD.AR IN CONDONING THE DELAY. HE FURTHER ARGUED THAT THE REASONS STATED IN THE AFFIDAVIT DT.25-11-2 014 ARE VAGUE WITHOUT ANY PROOF TO SHOW THAT THE SAID ACCOUNTANT LEFT THE JOB AND DID NOT HAND OVER THE NECESSARY DOCUMENTS TO THE AS SESSEE. HE VEHEMENTLY OPPOSED THE CONDONATION OF DELAY IN FIL ING THE APPEAL AND PRAYED TO DISMISS THE APPEAL OF ASSESSEE. 5. HEARD RIVAL SUBMISSIONS AND PERUSED MATERIAL ON RECORD. WE NOTE THAT THE ASSESSMENT ORDER IN THIS CASE WAS PAS SED ON 19-12-08 U/S. 143(3) OF THE ACT. AGAINST WHICH, THE ASSESSEE FILED AN APPEAL BEFORE THE 1 ST APPELLATE AUTHORITY ON 06-02-09. THE FIRST APPELLA TE AUTHORITY DISMISSED THE APPEAL OF ASSESSEE BY CONFI RMING THE ADDITIONS MADE BY THE AO VIDE HIS ORDER DT. 21-01-2 013 AND THE ASSESSEE RECEIVED THE SAME ON 5-2-2013, WHERE THE A PPEAL BEFORE THIS TRIBUNAL SHOULD HAVE BEEN FILED WITHIN 60 DAYS FROM THE DATE OF RECEIPT. BUT, HOWEVER, THE ASSESSEE FILED THE APPEA L BEFORE THIS TRIBUNAL ON 26-09-2014, WHICH RESULTED A DELAY OF 5 38 DAYS. ON PERUSAL OF SAID AFFIDAVIT FILED STATING REASONS TO CONDONE THE DELAY AND HAVING HEARD THE SUBMISSIONS OF THE LD. AR & LD. DR , WE ARE NOT SATISFIED WITH THE REASONS STATED IN THE AFFIDAVIT, WHICH CAUSED DELAY. THEREFORE, THE AFFIDAVIT DT. 25-11-2014 FILED TO CO NDONE THE DELAY OF 538 DAYS IN FILING THE APPEAL IS REJECTED AND CONSE QUENTLY, THE APPEAL OF ASSESSEE IS DISMISSED. 3 ITA NOS. 1849-1852/KOL/2014 6. IN VIEW OF ABOVE, THE APPEAL OF ASSESSEE-ITA NO. 1849/KOL/2014 FOR THE A.Y 2006-07 IS DISMISSED. 7. NOW, WE SHALL TAKE UP THE APPEAL IN ITA NO. 1850 /KOL/2014 FOR THE A.Y 2006-07 FILED CHALLENGING THE CONFIRMATION OF PENALTY IMPOSED U/SEC.271(1)(B) OF THE ACT. ITA NO. 1850/KOL/2014 A.Y 2006-07 8. THE LD.AR SUBMITS THAT THIS APPEAL OF ASSESSEE W AS FILED WITH A DELAY OF 195 DAYS AND REFERRED TO AN AFFIDAVIT DT. 07-11-17, COPY OF THE SAME IS ON RECORD, AND ARGUED THAT THE ASSESSEE RECEIVED THE APPELLATE ORDER ON 14-01-2014. THE LD.AR FURTHER S UBMITS THAT ONE OF ITS ACTING DIRECTOR, WHO IS ACTIVELY LOOKING AFTER THE BUSINESS OF THE ASSESSEE HAS EXPIRED ON 19-01-09. SRI SWAPAN MAJUMD AR, ADVOCATE/ACCOUNTANT WAS GIVEN RESPONSIBILITY TO LOO K AFTER TAX MATTER AFTER THE DEATH OF ONE OF ITS ACTIVE DIRECTOR AND A DELAY OF 195 DAYS CAUSED DUE TO LACK OF RESPONSIBILITY OF THE SAID AD VOCATE/ACCOUNTANT. THE LD. AR ALSO ARGUED THAT THE SAID DELAY CAUSED W AS BEYOND THE CONTROL OF THE ASSESSEE, WHICH NEITHER INTENTIONAL NOR WANTON AND PRAYED TO CONDONE THE SAID DELAY IN FILING THE APPE AL AND TO ADMIT THE SAME. 9. ON THE OTHER HAND, THE LD. DR HAS ADOPTED HIS SA ME SUBMISSIONS AS MADE IN PARA-4 OF THIS ORDER. 10. HEARD RIVAL SUBMISSIONS AND PERUSED MATERIAL O N RECORD. WE NOTE THAT THE AO INITIATED THE PENALTY PROCEEDINGS U/S. 271(1)(B) BY ISSUING NOTICE DT. 04-11-08 FOR NOT COMPLYING WITH THE NOTICE ISSUED U/S. 142(1) OF THE ACT AND IMPOSED PENALTY OF RS.10 ,000/-, WHICH WAS CONFIRMED BY THE IMPUGNED ORDER OF THE CIT-A IN THE FIRST APPELLATE PROCEEDINGS. ON PERUSAL OF THE ORDER OF THE CIT-A, IT IS NOTICED THAT BEFORE THE CIT-A THERE WAS NO APPEARANCE OF THE ASS ESSEE AND, THEREFORE, CIT-A PASSED EX PARTE ORDER BY CONFIRMIN G THE IMPUGNED PENALTY IMPOSED U/S. 271(1)(B) OF THE ACT. ON PERU SAL OF RECORD, WE 4 ITA NOS. 1849-1852/KOL/2014 FIND THAT THE ASSESSEE DID NOT RESPOND TO THE NOTIC E ISSUED U/SEC. 142(1) AND NOTICE ISSUED FOR INITIATION OF PENALTY PROCEEDINGS U/SEC. 271(1) (B) OF THE ACT. THE ASSESSEE ALSO DID NOT RE SPOND TO THE NOTICES ISSUED BY THE CIT-A IN THE FIRST APPELLATE PROCEEDINGS. ON PERUSAL OF THE AFFIDAVIT FILED TO CONDONE THE DELAY OF 195 DAYS AND HAVING HEARD THE SUBMISSIONS OF THE LD. AR & LD. DR , WE ARE NOT SATISFIED WITH THE REASONS STATED IN THE AFFIDAVIT FILED TO CONDONE THE DELAY OF 195 DAYS IN FILING THE APPEAL AND IS REJEC TED AND CONSEQUENTLY, THE APPEAL OF ASSESSEE IS DISMISSED. 11. IN VIEW OF ABOVE, THE APPEAL OF ASSESSEE IN ITA NO. 1850/KOL/2014 FOR THE A.Y 2006-07 IS DISMISSED. 12. THE APPEAL-ITA NO. 1851/KOL/2014 FOR THE A.Y 20 06-07 FILED BY THE ASSESSEE CHALLENGING THE CONFIRMATION OF PEN ALTY OF RS.20,000/- U/SEC. 271(1)(B) OF THE ACT. ITA NO. 1851/KOL/2014 FOR THE A.Y 2006-07 13. WE FIND THAT THIS PRESENT APPEAL WAS ALSO FILED BEFORE THIS TRIBUNAL WITH A DELAY OF 195 DAYS. BOTH THE LD.AR A ND LD. DR BEFORE US ADVANCED SAME ARGUMENTS AS CANVASSED IN ITA NO. 1850/KOL/2014 FOR THE A.Y 2006-07 REGARDING CONDONA TION OF DELAY, WHICH WE HAVE ALREADY REJECTED THE REASONS STATED I N THE AFFIDAVIT AND DISMISSED THE APPEAL OF ASSESSEE. IN VIEW OF OU R DECISION TAKEN IN ITA NO. 1850/KOL/2014 A.Y 2006-07, THE PRESENT A PPEAL OF ASSESSEE IN ITA NO.1851/KOL/2014 FOR THE A.Y 2006-0 7 IS DISMISSED. 14. THE APPEAL OF ASSESSEE IN ITA NO. 1851/KOL/2014 FOR THE A.Y 2006-07 IS DISMISSED. 5 ITA NOS. 1849-1852/KOL/2014 15. THE APPEAL IN ITA NO. 1852/KOL/2014 FOR THE A.Y 2006-07 FILED BY THE ASSESSEE CHALLENGING THE CONFIRMATION OF PEN ALTY U/SEC 271A OF THE ACT. 16. THE PRESENT APPEAL FILED BEFORE THIS TRIBUNAL WITH A DELAY OF 195 DAYS. BOTH THE LD.AR AND LD. DR BEFORE US ADVAN CED SAME ARGUMENTS REGARDING CONDOTNATION OF DELAY, WHICH WE HAVE ALREADY REJECTED AND DISMISSED THE APPEAL OF ASSESSEE. IN VIEW OF SAME, THE PRESENT APPEAL OF ASSESSEE IN ITA NO.1852/KOL/2014 FOR THE A.Y 2006-07 IS DISMISSED. 17. IN THE RESULT, ALL THE APPEALS OF ASSESSEE IN I.T.A NO. 1849/KOL/2014 A.Y: 2006-07, I.T.A N O. 1850/KOL/2014 A.Y: 2006-07, I.T.A NO. 1851/KOL/2014 A.Y: 2006 -07 AND I.T.A NO. 1852/KOL/2014 A.Y: 2006-07 ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21 -03-2018 SD/- SD/- J. SUDHAKAR REDDY S.S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 21 -03-2018 PP(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT/ASSESSEE: M/S. BANGALAXMI KHADI BHAWAN 98 DR. K.S ROY ROAD, KOLKATA-32. 2 RESPONDENT : INCOME TAX OFFICER, WARD 52(1), AAYKAR BHAWAN (DAKSHIN), 2 GARIAHAT ROAD (S), KOLKATA-68. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, SR.PS/H.O.O ITAT KOLKATA