M/s Bansidhar Hardware(P), Ltd, Varanasi V. ACIT, C.C., Varanasi

ITA 190/ALLD/2014

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9617 (ITAT-ALLAHABAD)
• Duration Of Justice: 1 year(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 24-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure; Bonafide belief
• Section: 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, ALLAHABAD BENCH, ALLAHABAD BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AN D SHRI C. N. PRASAD, JUDICIAL MEMBER ITA NO. 190/A/2014 A.Y. 2010-11 BANSHIDHAR HARDWARE PRIVATE LTD. VS. ASSTT. C OMMISSIONER OF INCOME TAX 36-A RAVINDRAPURI CENTRAL CIRCLE, VARANASI VARANASI (PAN: AACCB5982D) (APPELLANT) (RESPONDENT) ITA NO. 221/A/2014 A.Y. 2010-11 KRS ESTATE PRIVATE LIMITED VS. ASSTT. COMMISSIO NER OF INCOME TAX 36-A, RAVINDRAPURI, CENTRAL CIRCLE, VARANASI VARANASI ( PAN: AACCK4008P) (APPELLANT) (RESPONDENT) ITA NO. 236/A/2014 A.Y. 2010-11 M/S. DIDWANIA CONSTRUCTION VS. ASSTT. COMMISSIO NER OF INCOME TAX B-27/90, GROUND FLOOR, CENTRAL CIRCLE, SHAKUMBHARI COMPLEX, VARANASI VARANASI (PAN: AADFD0793N) (APPELLANT) (RESPONDENT) ITA NO. 153/A/2014 A.Y. 2010-11 O.R.S STEEL PRIVATE LIMITED VS. ASSTT. COMMISSIO NER OF INCOME TAX B-27/90, GROUND FLOOR, CENTRAL CIRCLE, SHAKUMBHARI COMPLEX, VARANASI DURGAKUND ROAD VARANASI ( PAN: AAAAC02587P) (APPELLANT) (RESPONDENT) ITA NO. 190/A/2014 A.Y. 2010-11 2 ITA NO. 206/A/2014 A.Y. 2010-11 BABYLON GREENS ESTATES PVT. LTD VS. ASSTT. COM MISSIONER OF INCOME TAX B-27/90 , GROUND FLOOR, CENTRAL CIRCLE, SHAKUMBHARI COMPLEX, VARANASI VARANASI (PAN: AACCB7285P) (APPELLANT) (RESPONDENT) ITA NO. 155/A/2014 A.Y. 2010-11 SUVIDHA HI-TECH DIAGNOSTIC PVT. LTD VS. ASSTT. COMMISSIONER OF INCOME TAX B-27/90, GROUND FLOOR, CENTRAL CIRCLE, SHAKUMBHARI COMPLEX, VARANASI BHELUPURA VARANASI ( PAN: AAFCS9476A) (APPELLANT) (RESPONDENT) ITA NO. 152/A/2014 A.Y. 2010-11 SHUBH REALTORS VS. ASSTT. COMMISSIONER OF IN COME TAX B-27/90, GROUND FLOOR, CENTRAL CIRCLE, SHAKUMBHARI COMPLEX, VARANASI DURGAKUND ROAD VARANASI ( PAN: ABKFS0184Q) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ASHISH BANSAL& SHRI SAURABH AGARWAL REVENUE BY : SHRI UMESH PATHAK DATE OF HEARING : 29.04.2015 DATE OF PRONOUNCEMENT : 30.04.2015 ITA NO. 190/A/2014 A.Y. 2010-11 3 O R D E R PER BENCH: THERE ARE SEVEN APPEALS UNDER CONSIDERATION FOR TH E A.Y. 2010-11 AND THESE APPEALS INVOLVE COMMON ISSUE RELATED TO THE PENALTI ES LEVIED U/S 271(1)(B) OF THE ACT. THERE ARE 7 DIFFERENT ASSESSES ARE INVOLVED IN THIS BUNCH OF APPEALS. ALL THESE SEVEN ASSESSES FILED THE PRESENT APPEALS AGAINST TH E DIFFERENT ORDERS OF THE LD. CIT(A), VARANASI. ALL THESE APPEALS BELONG TO DIDWA NIA GROUP. THERE WAS SEARCH AND SEIZURE ACTION IN THIS GROUP AND THE ASSESSMENTS WE RE IN PROGRESS U/S 153A/C OF THE ACT AT THE RELEVANT POINT OF TIME. 2. THE BACKGROUND FACTS RELATING TO IMPUGNED APPEAL S ARE THAT THE ASSESSEES WERE GIVEN NOTICE BY THE AO, ACIT CENTRAL CIRCLE VA RANASI U/S 271(1)(B) OF THE ACT ON 01.03.2011 REQUIRING THE ASSESSEE TO FILE THE RE TURN OF INCOME FOR THE A.Y. 2010- 11 AND THE DUE DATE FOR FURNISHING THE RETURN AS PE R THE SAID NOTICE IS 15.03.2011. ON BEING UNDER THE BONAFIDE BELIEF THAT THE RETURNS WERE NOT FURNISHED BY THE ASSESSEE, AO FINALIZED THE PENALTY PROCEEDINGS LEVY ING THE PENALTY OF RS.10,000/- IN EACH OF THE ASSESSEES VIDE PENALTY ORDER COMMONLY D ATED 30.03.2012. IN THE FIRST APPELLATE PROCEEDINGS, THE LD. CIT(A) CONFIRMED THE PENALTY. AGGRIEVED WITH THE SAME THE ASSESSES FILED THE PRESENT APPEALS. 3. BEFORE US, SHRI ASHISH BANSAL AND SHRI SAURABH A GARWAL APPEARED ON BEHALF OF THE ASSESSES. IT IS THE SUBMISSION OF THE LEARNE D COUNSELS FOR THE ASSESEE THAT THE SAID PENALTIES LEVIED U/S 271(1)(B) OF THE ACT ARE NOT SUSTAINABLE IN LAW FOR THE REASON THAT THE AO ISSUED THE NOTICES ON 01.03.2011 WITHOUT REALIZING THE UNDISPUTED FACT OF FILING RETURNS OF INCOME BY THE ASSESSES ALREADY. THE RETURNS WERE ALREADY FILED ELECTRONICALLY TO THE INCOME TAX DEPA RTMENT ON 29.09.2010, 30.09.2010 & 12.01.2011, AS THE CASE MAY BE. IN THE CASE OF THE ASSESSEES THAT THERE IS NO NEED TO ISSUE NOTICE U/S 142(1) CALLING FOR RETURN OF INCOME WHEN THE SAME IS ALREADY FILED IN THESE CASES. THEREFORE, IS SUE OF NOTICE, U/S 271(1)(B) OF THE ACT IS UNWARRANTED. ITA NO. 190/A/2014 A.Y. 2010-11 4 4. ON THE OTHER HAND, LD. DR FOR THE REVENUE RELIED ON THE ORDERS OF THE LD. CIT(A)/AO. 5. AFTER HEARING BOTH THE PARTIES, WE FIND THAT THE RE IS NO DISPUTE ON THE FACT THE IMPUGNED NOTICES U/S 142(1) OF THE ACT WERE ISSUED SUBSEQUENT TO THE FILING OF RETURNS OF THE INCOME IN ALL THESE SEVEN CASES OF A PPEALS. WHEN THE FILING OF RETURN ELECTRONICALLY AS PER THE DIRECTION OF THE REVENUE, THE AO IS NOT EXPECTED TO RECEIVE THE COPY OF THE SAME RETURN FROM THE ASSESSEE THERE IS NO SUCH REQUIREMENT OF LAW. WE HAVE SEEN THE COPY OF THE ACKNOWLEDGMENT FURNISH ED TO THE ASSESSEE BY THE DEPARTMENT IN SUPPORT OF THE CLAIM THAT RETURNS WER E ALREADY FILED TO THE DEPARTMENT. ON THESE FACTUAL MATRIX, WE ARE OF THE CONSIDERED OPINION, ASSESSING OFFICER SHOULD NOT HAVE ISSUED IMPUGNED NOTICES U/S 142(1) OF THE ACT ON 01.03.2011 WITHOUT VERIFYING THE RECORDS ABOUT THE FILING OF T HE RETURN OF INCOME. CONSIDERING THE FACTS RETURNS WERE ALREADY FILED PRIOR TO THE I SSUE OF NOTICES, WE ARE OF THE OPINION PENALTY LEVIED U/S 271(1) (B) OF THE ACT BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(A), ARE NOT VALID AND SUST AINABLE IN LAW. THEREFORE, GROUND RAISED BY THE ASSESSES IN ALL THESE SEVEN APPEALS A RE DELETED IN THIS COMPOSITED ORDER. ACCORDINGLY, GROUND RAISED BY THE ASSESSES A RE ALLOWED. 6. IN THE RESULT, ALL THE SEVEN APPEALS FILED BY THE ASSESSES ARE ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH DAY OF APRIL, 2015. SD/- SD/- (C. N. PRASAD) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER ALLAHABAD, DATED: 30.04.2015 *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, ALLAHABAD THE CIT(A) CONCERNED, ALLAHABAD THE DR BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, ALLAHABAD.