Shri Amalkrishna R.Majumdar, Ahmedabad V. The Income tax Officer,Ward-12(2), Ahmedabad

ITA 19/AHD/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 9098 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-02-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 08-02-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 01-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GOVIND SINGHAL
• Assessee Lawyers: PF JAIN
• Keywords: Opportunity of being heard; Reasonable cause; Non compliance; Set aside
• Section: 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH SMC, AHMEDABAD BEFORE SHRI I.S. VERMA, JUDICIAL MEMBER I.T.A. NO.19/AHD/2010 (ASSESSMENT YEAR 2006-07) SHRI AMALKRISHNA R MAJUMDAR VS THE ITO, WD.12(3) C/O SHYAMSUNDER MAJUMDAR AHMEDABAD A-17, CHUNILAL PARK NEAR HIRABA PARTY PLOT AMRAIWADI, AHMEDABAD PAN : ACRPM2513K (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PF JAIN RESPONDENT BY: SHRI GOVIND SINGHAL O R D E R IN THIS APPEAL ASSESSEE IS OBJECTED TO THE ORDER O F CIT(A)-XX, AHMEDABAD DATED 07-09-2009 FOR THE ASSESSMENT YEAR 2006-07 WH EREBY HE HAS CONFIRMED THE PENALTY IMPOSED U/S 271(1)(B) OF THE ACT FOR NO N-COMPLIANCE TO THE NOTICES U/S 143(2) AND U/S 142(1) OF THE ACT, DETAILS OF WH ICH, AS GIVEN AT PARAGRAPH 3 OF THE ORDER OF THE CIT(A) ARE AS UNDER: SR.NO. NOTICE U/S HEARING ON REMARKS 1. 143(2) DTD 04-07-07 18-07-07 NOBODY ATTENDED NOR ANY ADJOURNMENT LETTER RECEIVED 2. 142(1) DTD. 19-09-08 13-10-08 -DO- 3. 142(1) DTD. 02-12-08 12-12-08 -DO- 4. 142(1) DTD. 02-12-08 12-12-08 -DO- 2. PARTIES HAVE BEEN HEARD. THE LEARNED COUNSEL FO R THE ASSESSEE AT THE OUTSET SUBMITTED THAT IT WILL BE EVIDENT FROM THE R ECORDS THAT PENALTY IN QUESTION HAS BEEN IMPOSED FOR NON COMPLIANCE TO AFORESAID FO UR NOTICES BUT THE TRIBUNAL, WHILE DISPOSING OF ASSESSEES APPEAL AGAINST EX PAR TE ASSESSMENT, WHICH WAS ITA NO.19/AHD/2010 2 FRAMED FOR NON-COMPLIANCE TO THESE VERY NOTICES, AC CEPTED THE REASONS FOR NON- COMPLIANCE TO THESE NOTICES (AS EXPLAINED IN PARAGR APH 5 OF THE ASSESSEE AFFIDAVIT FILED BEFORE THE TRIBUNAL AND REPRODUCED BY THE TRIBUNAL AT PARAGRAPH 2 OF ITS ORDER DATED 09-10-2009) ACCEPTED THE SAME TO BE DUE TO REASONABLE CAUSE AND SET ASIDE THE EX PARTE ASSESSMENT DIRECTING THE ASSESSING OFFICER TO MAKE FRESH ASSESSMENT AFTER ALLOWING THE ASSESSEE A PROP ER OPPORTUNITY OF BEING HEARD. OUR ATTENTION WAS DRAWN TO PARAGRAPH 5 OF T HE AFFIDAVIT WHICH IS REPRODUCED IN THE ORDER OF THE TRIBUNAL SUPRA WHICH READS AS UNDER: 5) THAT THE FOLLOWING NOTICES ISSUED BY INCOME TAX DEPARTMENT FOR A.Y. 2006-07 SENT BY POST AT MY ADDRESS WHICH W ERE RECE3IVED BY MY NEPHEW IN MY ABSENCE AND THE WERE DULY GIVEN BY HIM TO THE JAY ACCOUNTING SERVICES FOR MAKING NECESSARY CO MPLIANCE THEREOF AND ON BEING ENQUIRED IN THIS REGARD FROM C ALCUTTA I WAS EVERY TIME INFORMED BY THEM THAT NECESSARY COMPLIAN CE WAS MADE AND I NEED NOT WORRY IN THIS REGARD. A. NOTICE DATED 04/07/2007 U/S 143)(2) B. NOTICE DATED 19/09/2008 U/S 142(1) AND U/S 143(2 ) C. SHOW CAUSE NOTICE DATED 02/12/2008 AND NOTICE U/ S 142(1) DATED 02-12-2008. BUT UNFORTUNATELY THESE NOTICES WERE NOT COMPLIED W ITH BY JAY ACCOUNTING SERVICES AS MENTIONED IN THE ORDER WHICH I CAME TO KNOW ONLY AFTER PASSING OF ASSESSMENT ORDER AND WHE N APPEAL PAPERS WERE SENT TO ME FOR SIGNATURE BY THEM. ANOTHER ARGUMENT PUT FORWARD BY THE COUNSEL FOR THE ASSESSEE WAS THAT THE ITAT, AHMEDABAD BENCH A IN THE CASE OF A.S.I.A. C HARITABLE TRUST FOR ASSESSMENT YEAR 2000-01 IN ITA NO.1925/AHD/2004 DEC IDED ON 07-08-2009 SET ASIDE THE PENALTY IMPOSED U/S 2711)(C) OF THE ACT B ECAUSE IN THAT CASE ORDER OF THE CIT(A) WAS SET ASIDE WITH THE DIRECTION THAT CI T(A) SHOULD DECIDED THE ASSESSEES APPEAL AFRESH IN ACCORDANCE WITH LAW. T HIS ORDER OF THE TRIBUNAL IS DATED 07 TH AUGUST, 2009, COPY PLACED ON RECORD. 3. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, SUPPORTED THE ORDER OF THE CIT(A). ITA NO.19/AHD/2010 3 4. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND THE FACTS OF THE CASE, IT IS NOTICED THAT THE OPINION THAT ITAT SMC BENCH, WHILE DECIDING ASSESSEES APPEAL AGAINST THE EX PARTE ASSESSMENT IN ASSESSEES OWN C ASE FOR THIS VERY ASSESSMENT YEAR HAS ACCEPTED THE REASONS EXPLAINED BY THE ASSESSEE FOR NON- COMPLIANCE TO THESE VERY NOTICES, WHICH ARE REPRODU CED HEREINABOVE, AS REASONABLE AND HAD SET ASIDE THE EX PARTE ASSESSMEN T FOR MAKING FRESH ASSESSMENT AFTER ALLOWING THE ASSESSEE A PROPER OPP ORTUNITY OF BEING HEARD. THE RELEVANT PART OF ASSESSEES AFFIDAVIT I.E. PARA GRAPH 5 OF THE AFFIDAVIT AS REPRODUCED BY THE TRIBUNAL IN PARAGRAPH 2 OF ITS OR DER (SUPRA) IS AS UNDER: 5) THAT THE FOLLOWING NOTICES ISSUED BY INCOME TAX DEPARTMENT FOR A.Y. 2006-07 SENT BY POST AT MY ADDRESS WHICH W ERE RECE3IVED BY MY NEPHEW IN MY ABSENCE AND THE WERE DULY GIVEN BY HIM TO THE JAY ACCOUNTING SERVICES FOR MAKING NECESSARY CO MPLIANCE THEREOF AND ON BEING ENQUIRED IN THIS REGARD FROM C ALCUTTA I WAS EVERY TIME INFORMED BY THEM THAT NECESSARY COMPLIAN CE WAS MADE AND I NEED NOT WORRY IN THIS REGARD. D. NOTICE DATED 04/07/2007 U/S 143)(2) E. NOTICE DATED 19/09/2008 U/S 142(1) AND U/S 143(2 ) F. SHOW CAUSE NOTICE DATED 02/12/2008 AND NOTICE U/ S 142(1) DATED 02-12-2008. BUT UNFORTUNATELY THESE NOTICES WERE NOT COMPLIED W ITH BY JAY ACCOUNTING SERVICES AS MENTIONED IN THE ORDER WHICH I CAME TO KNOW ONLY AFTER PASSING OF ASSESSMENT ORDER AND WHE N APPEAL PAPERS WERE SENT TO ME FOR SIGNATURE BY THEM. SINCE THE TRIBUNAL HAS SET ASIDE THE EX PARTE ORDER AFTER EXPLAINING THE REASONS FOR NON-COMPLIANCE TO THOSE VERY NOTICES, NON COMPL IANCE TO WHICH HAS RESULTED IN LEVY OF PENALTY AS REASONABLE, I, FOLLOWING THE DECISION OF THE TRIBUNAL, AM OF THE OPINION THAT NON-COMPLIANCE BY THE ASSESSEE BEI NG DUE TO REASONABLE CAUSE PENALTY UNDER APPEAL WAS NOT JUSTIFIED. PENALTY IN APPEAL IS, THEREFORE, CANCELLED AND ORDERS OF THE REVENUE AUTHORITIES ARE SET ASIDE . 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ITA NO.19/AHD/2010 4 6. ORDER PRONOUNCED ON THIS 09 TH DAY OF FEBRUARY, 2010. SD/- (I.S. VERMA) JUDICIAL MEMBER AHMEDABAD, DT : 09 TH FEBRUARY, 2010 PK/- COPY TO: 1. THE ASSESSEE 2. THE REVENUE 3. THE CIT(A)-XX, AHMEDABAD 4. THE CIT, AHMEDABAD-VI, AHMEDABAD 5. THE DR, SMC BENCH (TRUE COPY) BY ORDER DEPUTY REGISTRAR, ITAT, AHMEDABAD