M/s. Radha Madhav Reserch & Trade Ltd., Nani Daman V. The ACIT.,Cent.Circle-3, Surat

ITA 187/AHD/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 89473 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 20-05-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 23-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD .. , ( .) .. , ! BEFORE SHRI BEFORE SHRI G.D. AGARWAL,VICE PRESIDEN T (AZ) AND SHRI S.S. GODARA, JUDICIAL MEMBER SL. NO(S) ITA NO(S) ASSESSMENT YEAR (S) APPEAL(S) BY APPELLANT VS. RESPONDENT APPELLANT RESPONDENT 1. 185/AHD/2012 2008-09 RADHA MADHAV HOLDING PVT.LTD. SURVEY NO.50/9A, DAMAN INDUSTRIAL ESTATE, KADAIYA NANI DAMAN PAN:AAECR 2111 A THE ACIT CENTRAL- CIRCLE-3 SURAT 2. 186/AHD/2012 2009-10 -DO-ASSESSEE REVENUE 3. 187/AHD/2012 2009-10 RADHA MADHAV RESEARCH & TRADE LTD., SURVEY NO.98/2A NANI DAMAN PAN: AADCR 9948J REVENUE ASSESSEE(S) 1 & 2 BY : -NONE- REVENUE BY : SHRI M.K. SINGH, SR.DR ' # $%& '( / DATE OF HEARING 20/05/2015 )*+ %& '( / DATE OF PRONOUNCEMENT 22/05/2015 / O R D E R PER SHRI G.D. AGARWAL, VICE-PRESIDENT(AZ): THESE THREE APPEALS BY TWO DIFFERENT ASSESSEES AR E DIRECTED AGAINST THE SEPARATE ORDERS OF THE LD.COMMISSIONER OF INCOM E TAX(APPEALS)-II, ITA NOS.185 & 186/AHD/2012 RADHA MADHAV HOLDINGS P.LTD. VS. ACIT (AYS- 2008-09 & 2009-10) AND ITA NO.187/AHD/2012 RADHA MADHAV RESEARCH & TRADE LTD. VS. ACIT (AY 200 9-10) - 2 - AHMEDABAD DATED 25/11/2011 IN THE CASE OF RADHA MADHAV HOLDI NGS PVT.LTD. FOR ASST.YEARS 2008-09 & 2009-10 AND DATED 01/12/2011 IN THE CASE OF RADHA MADVA RESEARCH & TRADE LTD. FOR ASST .YEAR 2009-10. 2. THE ONLY COMMON GROUND RAISED IN ALL THESE THREE APPEALS OF THE ASSESSEE(S) IS AGAINST THE LEVY OF PENALTY OF RS.10 ,000/- EACH U/S.271(1)(B) OF THE I.T.ACT, 1961. THE FACTS IN A LL THESE THREE APPEALS ARE MORE OR LESS SIMILAR, THEREFORE WE DISCUSS HEREINBE LOW THE FACTS RELATING TO RADHA MADHAV HOLDINGS PVT.LTD. FOR ASST.YEAR 200 8-09. 3. NONE APPEARED ON BEHALF OF THE APPELLANT-ASSESSE ES. WE HAVE HEARD THE LD.DR AND PERUSED THE MATERIAL PLACED BEF ORE US. THE ASSESSING OFFICER HAS LEVIED THE PENALTY U/S.271(1) (B) OF THE ACT FOR FAILURE OF THE ASSESSEE TO COMPLY WITH THE NOTICE D ATED 27/11/2009. IN THE FIRST PARAGRAPH OF THE PENALTY ORDER DATED 18/03/20 09, THE ASSESSING OFFICER MENTIONED AS UNDER:- IN YOUR CASE, NOTICE U/S.142(1) OF THE I.T.ACT, 19 61, DATED 27.11.2009 WAS ISSUED AND DULY SERVED UPON YOU BY R PAD, WHERE IN HEARING WAS FIXED ON 08/12/2009 AT 12:30 P.M. AN D YOU WERE ASKED TO ATTEND THE HEARING ALONG WITH THE DETAILS/ DOCUMENTS IN CONNECTION WITH THE ON-GOING ASSESSMENT PROCEEDINGS SPECIFIED AS PER THIS OFFICE QUESTIONNAIRE LETTER 27/11/2009. O N PERUSAL OF THE FILE IT IS NOTICE THAT NOBODY ATTENDED ON THE SAID DATE NOR FILED ANY DETAILS NOR SEEK ANY ADJOURNMENT. ITA NOS.185 & 186/AHD/2012 RADHA MADHAV HOLDINGS P.LTD. VS. ACIT (AYS- 2008-09 & 2009-10) AND ITA NO.187/AHD/2012 RADHA MADHAV RESEARCH & TRADE LTD. VS. ACIT (AY 200 9-10) - 3 - 3.1. FROM THE ABOVE, IT IS EVIDENT THAT THE ASSESSI NG OFFICER HAS MENTIONED THE DATE OF NOTICE WHICH WAS 27/11/2009 A ND THE DATE OF HEARING WAS FIXED FOR 08/12/2009. HE HAS ALSO MENT IONED THAT THE NOTICE WAS SERVED BY RPAD, BUT THE DATE OF SERVICE OF THE NOTICE OR EVEN DATE OF ACTUAL DISPATCH OF THE NOTICE BY THE DEPARTMENT HAS NOT BEEN GIVEN. THERE IS HARDLY 10-DAYS FROM THE DATE OF THE NOTICE AND THE DATE OF HEARING. EVEN IF IT IS PRESUMED THAT THE NOTICE W AS SERVED BY RPAD WITHIN THE PERIOD OF 4-5 DAYS, THEN ALSO THE TIME A LLOWED BY THE ASSESSING OFFICER TO COMPLY WITH THE QUESTIONNAIRE ISSUED ALONG WITH THE NOTICE DATED 27/11/2009 CAN NEVER BE SAID TO BE ADE QUATE TIME ALLOWED TO THE ASSESSEE. WHEN THE ASSESSING OFFICER HIMSELF H AS NOT ALLOWED ADEQUATE TIME TO COMPLY WITH THE NOTICE, IN OUR OPI NION, THE LEVY OF PENALTY FOR NON-COMPLIANCE WOULD NOT BE JUSTIFIED. SIMILAR IS THE POSITION OF SUBSEQUENT NOTICES. SIMILARLY, IN THE CASE OF ASSESSEE FOR ASST.YEAR 2009-10 AND IN THE CASE OF RADHA MADHAV R ESEARCH & TRADE LTD. FOR ASST.YEAR 2009-10 SUFFICIENT TIME WAS NOT GIVEN BY THE ASSESSING OFFICER FOR COMPLIANCE WITH NOTICES. IN OUR OPINION, WHEN THE ASSESSING OFFICER HIMSELF HAS NOT ALLOWED ADEQUATE TIME TO COMPLY WITH THE NOTICE, THE LEVY OF THE PENALTY ON THE ALLEGED GROUND OF FAILURE OF THE ASSESSEE TO COMPLY WITH THE NOTICE ISSUED COULD NOT BE JUSTIFIED. THEREFORE, WE CANCEL THE PENALTY LEVIED U/S.271(1)( B) OF THE ACT IN ALL THE THREE CASES OF BOTH THE ASSESSEES. ITA NOS.185 & 186/AHD/2012 RADHA MADHAV HOLDINGS P.LTD. VS. ACIT (AYS- 2008-09 & 2009-10) AND ITA NO.187/AHD/2012 RADHA MADHAV RESEARCH & TRADE LTD. VS. ACIT (AY 200 9-10) - 4 - 4. IN THE RESULT, ALL THE THREE APPEALS OF THE ASSE SSEE(S) ARE ALLOWED. ORDER PRONOUNCED IN THE COURT ON 22 ND MAY, 2015 AT AHMEDABAD. SD/- SD/- (.. ) ( .. ) ( .) ( S.S. GODARA ) ( G.D. AGARWAL ) JUDICIAL MEMBER VICE PRESIDENT (AZ) AHMEDABAD; DATED 22/ 05 /2015 0'..# , .#../ T.C. NAIR, SR. PS !'#$#%! / COPY OF THE ORDER FORWARDED TO : 1. 12 / THE APPELLANT 2. 3412 / THE RESPONDENT. 3. 56578& ' 9& / CONCERNED CIT 4. ' 9& ( ) / THE CIT(A)-II, AHMEDABAD 5. : ; 3N , '78+ , 6 / DR, ITAT, AHMEDABAD 6. <= $ / GUARD FILE. / BY ORDER, 4 :&3& //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 20.5.15(DICTATION-PAD 5+ PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ..20.5.15 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.22.5.15 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 22.5.15 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER ..