Sampat Namdeo Ghorpade, Nashik V. Income-tax Officer,

ITA 1907/PUN/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6996 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-03-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 15-12-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 25-10-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: HEMANT KUMAR C LUEVA
• Keywords: Reasonable cause
• Section: 273B; 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E , , !'#'' $ , % & BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM / ITA NO. 1907/PUN/2013 %' ( ')( / ASSESSMENT YEAR : 2009-10 SHRI SAMPAT NAMDEO GHORPADE, P. NO. 10-1, S. NO. 791/1A, VISHWAS BUNGLOW, SADGURU NAGAR, NASHIK 422009 PAN : AHOPG2399B ....... / APPELLANT ' /VS. INCOME TAX OFFICER, WARD 1(2), NASHIK / RESPONDENT ASSESSEE BY : SHRI ABHAY AVCHAT REVENUE BY : SHRI HEMANT KUMAR C. LUEVA / DATE OF HEARING : 08-03-2017 / DATE OF PRONOUNCEMENT : 10-03-2017 * / ORDER PER VIKAS AWASTHY, JM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDE R OF COMMISSIONER OF INCOME TAX (APPEALS)-I, NASHIK DATED 29-08 -2013 FOR THE ASSESSMENT YEAR 2009-10 CONFIRMING THE LEVY OF PENA LTY U/S. 271(1)(B) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2 ITA NO. 1907/PUN/2013, A.Y. 2009-10 2. THE BRIEF FACTS OF THE CASE AS EMANATING FROM RECORD ARE: THE ASSESSEE IS AN INDIVIDUAL. THE ASSESSEE FILED HIS RETURN OF IN COME FOR THE ASSESSMENT YEAR 2009-10 ON 15-02-2010 DECLARING T OTAL INCOME OF ` 2,82,920/- FROM TRANSPORT BUSINESS AND ` 1,75,000/- AS AGRICULTURAL INCOME. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUT INY AND ACCORDINGLY NOTICE U/S. 143(2) WAS ISSUED TO THE ASSESSEE ON 18-08-2010. THE SAID NOTICE WAS ISSUED TO THE ASSESSEE AT THE ADDRESS MENTIONED IN THE RETURN OF INCOME. THE SAID NOTICE WAS SE RVED ON 21-08-2010. THE NOTICE WAS RECEIVED BY ONE SMT. SAVITA SHARAD MAHALE. IN RESPONSE TO THE NOTICE NONE APPEARED ON BE HALF OF THE ASSESSEE. THEREAFTER, THE ASSESSING OFFICER ISSUED NOTICE U /S. 142(1) ON 29-06-2011 ALONG WITH THE DETAILED QUESTIONNAIRE SEEKING A SSESSEES PRESENCE ON 27-07-2011. THE SAID NOTICE WAS RETURNED BY THE POST OFFICE WITH A REMARKS HOUSE LOCKED. THEREAFTER, THE SAID NOTICE WAS SERVED THROUGH NOTICE SERVER ON 15-07-2011 ON ONE SH RI MAHESH GHORPADE. AGAIN THE ASSESSEE DID NOT COMPLY WITH THE S AID NOTICE AND FAILED TO APPEAR BEFORE THE ASSESSING OFFICER ON THE DUE DA TE. THE ASSESSING OFFICER ONCE AGAIN ISSUED NOTICE U/S. 142(1) ON 12- 10-2011 SEEKING ASSESSEES PRESENCE ON 21-10-2011. ALONG WITH THE SAID NOTICE, THE ASSESSING OFFICER ALSO ISSUED NOTICE U/S. 274 R.W.S. 271( 1)(B) OF THE ACT TO THE ASSESSEE TO SHOW CAUSE AS TO WHY PENALTY PROCEEDINGS U/S. 271(1)(B) BE NOT INITIATED AGAINST HIM. THE SAID NOTICES WERE RETURNED BACK WITH REMARK LEFT. THE AFORESAID NOTICES WERE AGAIN SENT TO THE ASSESSEE THROUGH NOTICE SERVER WHICH WERE RECEIVED BY ONE SHRI T.A. GHORPADE. THE ASSESSEE DID NOT COMPLY WITH THE NOTICES AND FAILED TO APPEAR BEFORE THE ASSESSING OFFICER. THE ASSESSING OFFICER A GAIN ISSUED NOTICE U/S. 142(1) ON 16-11-2011 SEEKING THE PRESENCE OF ASSESSEE BEFORE HIM ON 22-11-2011. THE NOTICE WAS SERVED ON 18- 11-2011. THE 3 ITA NO. 1907/PUN/2013, A.Y. 2009-10 ASSESSEE DID NOT APPEAR BEFORE THE ASSESSING OFFICER AND DEFIED THE NOTICE. THEREAFTER, THE ASSESSING OFFICER ISSUED NOTICE U/S. 274 R.W.S. 271(1)(B) OF THE ACT ON 19-12-2011 FOR 08-01-2012. AGAIN NEITHER THE ASSESSEE NOR HIS AUTHORIZED REPRESENTATIVE APPEARED BE FORE ASSESSING OFFICER. THE ASSESSING OFFICER IMPOSED PENALTY U/S. 271(1)(B) V IDE THREE DIFFERENT ORDERS ALL DATED 30-04-2012 FOR NON-APPEARANCE OF THE ASSESSEE IN VIOLATION OF THE PROVISIONS OF SECTION 143(2) AND 142(1) OF THE ACT ON 18-08-2010, 12-10-2011 AND 16-11-2011, RES PECTIVELY. THE ASSESSING OFFICER LEVIED PENALTY OF ` 10,000/- FOR EACH DEFAULT. SINCE, THE ASSESSEE DID NOT PARTICIPATE IN THE ASSESSMENT PROC EEDINGS DESPITE REPEATED NOTICES THE ASSESSING OFFICER WAS CONSTRAINED TO PASS ASSESSMENT ORDER U/S. 144 OF THE ACT. AGGRIEVED BY THE LEVY OF PENALTY U/S. 271(1)(B), THE ASSESSE E FILED APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). THE COMMISSIONER OF INCOME TAX (APPEALS) REJECTED THE CONTENT IONS OF THE ASSESSEE AND UPHELD THE ORDERS LEVYING PENALTY U/S. 271(1 )(B) FOR REPEATEDLY VIOLATING THE NOTICES ISSUED BY THE ASSESSING OFFICER U/S. 143(2) AND 142(1) OF THE ACT. NOW, THE ASSESSEE IS IN SECON D APPEAL BEFORE THE TRIBUNAL ASSAILING THE ORDER OF COMMISSIONER OF IN COME TAX (APPEALS) CONFIRMING THE LEVY OF PENALTY U/S. 271(1)(B) OF THE ACT. 3. SHRI ABHAY AVCHAT APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE INITIAL NOTICES SENT BY THE ASSESSING OFFICER U/S. 1 43(2) AND THE SUBSEQUENT NOTICES U/S. 142(1) WERE NEVER SERVED ON THE ASSESSEE. THE ASSESSEE WAS EARLIER RESIDING AT N/42/CD/224/7, SHIVSHAKT I CHOWK, IV SCHEME, CIDCO, NASHIK. IN THE RETURN OF INCOME THE ASS ESSEE HAD MENTIONED THE ABOVE SAID ADDRESS. SUBSEQUENTLY, THE AS SESSEE SHIFTED 4 ITA NO. 1907/PUN/2013, A.Y. 2009-10 TO PLOT NO. 10/11, SURVEY NO. 791/1-A, VISHWAS BUNGALOW, S ADGURU NAGAR, NASHIK. THE NOTICE DATED 18-08-2010 ISSUED U/S. 1 43(2) WAS RECEIVED BY SMT. SAVITA SHARAD MAHALE, WIFE OF THE ASSESSE ES TENANT. THE SAID NOTICE WAS NEVER COMMUNICATED TO THE ASSESSEE BY THE TENANT. THE ASSESSEE CAME TO KNOW ABOUT THE SAID NOTICE ONLY AFTER THE PASSING OF THE ASSESSMENT ORDER. EVEN, THE SUBSEQUENT NOTICES SENT BY THE ASSESSING OFFICER U/S. 142(1) AND 271(1)(B) WERE NEVER SERVED ON THE ASSESSEE. THE NOTICE DATED 29-06-2011 WAS RECEIVED BY SHRI MAHESH GHORPADE, NEPHEW OF THE ASSESSEE AND THE NOTICE DATED 18-11-2011 WAS SERVED ON THE UNKNOWN PERSON WHOSE SIGNATURE WAS NOT LEGIBLE ON THE ACKNOWLEDGMENT RECEIPT. THUS, THE ASSESSEE DID NOT RECEIVE ANY OF THE NOTICES ISSUED BY THE ASSESSING OFFICER. SINCE, THE NOT ICES WERE NOT SERVED ON THE ASSESSEE THE ASSESSEE COULD NOT PARTICIP ATE IN THE ASSESSMENT PROCEEDINGS. THE ASSESSEE CAME TO KNOW AB OUT THE SCRUTINY ASSESSMENT PROCEEDINGS WHEN THE WIFE OF THE ASS ESSEE RECEIVED ASSESSMENT ORDER. THE LD. AR SUBMITTED THAT THE AUTHOR ITIES BELOW HAVE FAILED TO APPRECIATE THAT THE ASSESSEE COULD NOT PA RTICIPATE IN THE ASSESSMENT PROCEEDINGS ONLY FOR THE REASON THAT THE A SSESSEE WAS NOT AWARE OF THE SAME AS NONE OF THE NOTICES WERE EVER SER VED ON THE ASSESSEE. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS E RRED IN CONFIRMING THE LEVY OF PENALTY DESPITE THE FACT THAT THE AS SESSEE HAD SHOWN REASONABLE CAUSE FOR HIS NON-APPEARANCE BEFORE TH E ASSESSING OFFICER. THE LD. AR FURTHER SUBMITTED THAT IT IS A WELL SETTLE D LAW THAT WHERE THE ASSESSEE HAS BEEN ABLE TO SHOW REASONABLE C AUSE FOR HIS FAILURE TO COMPLY WITH THE PROVISIONS OF SECTION 271(1)(B), NO PENALTY IS LEVIABLE. IN SUPPORT OF HIS SUBMISSIONS THE LD. AR PLACED RELIA NCE ON THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF SHRI BALRAM K UMAR MAHENDRA VS. ITO IN ITA NO. 1366/DEL/2010 FOR ASSESSMEN T YEAR 5 ITA NO. 1907/PUN/2013, A.Y. 2009-10 2005-06 DECIDED ON 31-05-2010. THE LD. AR MADE AN ALTER NATE SUBMISSION THAT THREE PENALTY ORDERS LEVYING PENALTY OF ` 10,000/- EACH U/S. 271(1)(B) FOR THE SAME OFFENCE HAVE BEEN PASSED. IF AT ALL PENALTY HAS TO BE LEVIED IT SHOULD BE ONCE AND NOT THREE TIMES. TO SUPPORT HIS ALTERNATE SUBMISSION THE LD. AR DRAWS STRENGTH FROM THE O RDER OF DELHI BENCH OF THE TRIBUNAL IN THE CASE OF SHRI SURESH GULATI VS. INCOME TAX OFFICER IN ITA NO. 1921/DEL/2014 FOR ASSESSMENT YEAR 2012- 13 DECIDED ON 19-01-2017. 4. ON THE OTHER HAND SHRI HEMANT KUMAR C. LUEVA REPRESENTING THE DEPARTMENT VEHEMENTLY SUPPORTED THE ORDER OF COMMISS IONER OF INCOME TAX (APPEALS) IN CONFIRMING THE LEVY OF PENALTY U/S. 2 71(1)(B) OF THE ACT. THE LD. DR SUBMITTED THAT THE ASSESSEE IS RECA LCITRANT AND HAS BEEN DELIBERATELY DEFYING THE NOTICES DULY SERVED UPON HIM. THE ASSESSEE WAS WELL AWARE OF THE SCRUTINY ASSESSMENT PROC EEDINGS, BUT HE CHOSE NOT TO PARTICIPATE IN THE SAME. THE LD. DR FURT HER SUBMITTED THAT IT IS HIGHLY IMPROBABLE THAT THE ASSESSMENT ORDER W AS RECEIVED BY THE WIFE OF THE ASSESSEE, WHEREAS NONE OF THE NOTICES WH ICH WAS SENT ON THE SAME ADDRESS WERE NEVER RECEIVED BY THE ASSESSEE . THE LD. DR FURTHER SUBMITTED THAT DEFIANCE OF EACH NOTICE ISSUED U/S . 143(2) OR 142(1) IS A SEPARATE OFFENCE AND HENCE SEPARATE PENALTY O RDER HAS BEEN PASSED BY THE ASSESSING OFFICER FOR EACH SUCH VIOLATION. TH E ASSESSING OFFICER PASSED THREE PENALTY ORDERS FOR NON-COMPLIANCE OF T HE NOTICE ISSUED U/S. 143(2) DATED 18-08-2010, NOTICE ISSUED U/S. 142 (1) DATED 12-10-2011 AND 16-11-2011. THE ASSESSEE HAS FAILED TO FURNISH ANY REASONABLE CAUSE FOR HIS NON-APPEARANCE BEFORE THE ASSE SSING OFFICER DESPITE SERVICE OF NOTICES. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS RIGHTLY REJECTED THE APPEAL OF THE ASSESSEE. THE LD . DR PRAYED FOR 6 ITA NO. 1907/PUN/2013, A.Y. 2009-10 UPHOLDING THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) AND DISMISSING THE APPEAL OF THE ASSESSEE. 5. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESEN TATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF THE AUTHORITIE S BELOW. WE HAVE ALSO CONSIDERED THE DECISION ON WHICH THE LD. AR OF TH E ASSESSEE HAS PLACED RELIANCE TO STRENGTHEN HIS SUBMISSIONS. THE AS SESSEE HAS FAILED TO APPEAR BEFORE THE ASSESSING OFFICER DESPITE SERVIC E OF NOTICE ISSUED U/S. 142(1) OF THE ACT. THE CASE OF THE ASSESSEE IS THAT THE ASSESSEE HAS SHIFTED FROM THE ADDRESS AS MENTIONED IN TH E RETURN OF INCOME AND THE NOTICE U/S. 143(2) WAS SERVED ON THE OLD A DDRESS. A PERUSAL OF THE SUBMISSIONS MADE BY THE ASSESSEE BEFORE T HE COMMISSIONER OF INCOME TAX (APPEALS) REVEALS THAT EXCEPT FOR INITIAL NOTICE DATED 18-08-2010 ISSUED U/S. 143(2) WHICH WAS ALLEG EDLY RECEIVED BY ONE SMT. SAVITA SHARAD MAHALE WAS ISSUED AT THE OLD ADDRESS OF THE ASSESSEE. THE REMAINING NOTICES U/S. 142(1 ) AND U/S. 271(1)(B) WERE ISSUED BY THE ASSESSING OFFICER AT THE NEW AD DRESS. THIS FACT HAS BEEN ADMITTED BY THE ASSESSEE IN THE WRITTEN SUBMISSIONS/ STATEMENT OF FACTS FILED BY THE ASSESSEE BEFORE THE COMM ISSIONER OF INCOME TAX (APPEALS). IT IS ASSESSEES OWN ADMISSION THA T THE NOTICE DATED 29-06-2011 ISSUED U/S. 142(1) WAS RECEIVED BY SHRI MAHESH GHORPADE, NEPHEW OF THE ASSESSEE AT HIS NEW ADDRESS. T HE ASSESSEE IS SILENT ABOUT THE SERVICE OF NOTICE DATED 16-11-2011 ISSUE D U/S. 142(1). THE SAID NOTICE WAS DULY SERVED ON THE ASSESSEE ON 18 -11-2011. THE ASSESSEE IN HIS WRITTEN SUBMISSION HAS NOT DENIED THE SER VICE OF SAID NOTICE. THE ASSESSEE IN HIS WRITTEN SUBMISSION HAS ONLY CONTENDED THAT THE NOTICE ISSUED U/S. 271(1)(B) DATED 18-11-2011 WAS RECE IVED BY SOME UNKNOWN PERSON WHOSE SIGNATURES ARE NOT LEGIBLE. THE 7 ITA NO. 1907/PUN/2013, A.Y. 2009-10 COMMISSIONER OF INCOME TAX (APPEALS) HAS GIVEN CHRONOLOGY O F EVENTS GIVING THE DETAILS OF NOTICES ISSUED, DATE OF SERVICE OF THE N OTICE AND SERVICE REPORT. THE ASSESSING OFFICER VIDE THREE SEPARATE ORDERS OF EVEN DATES I.E. 30-04-2012 HAS LEVIED PENALTY U/S. 271(1)(B) OF THE ACT OF ` 10,000/- FOR EACH DEFAULT FOR NON-COMPLIANCE OF THE NOTICES ISSUED U/S. 143(2) AND 142(1) OF THE ACT. THE DETAILS OF THE PENALTY LEVIED BY THE ASSESSING OFFICER IS AS UNDER : SR. NO. NOTICE U/S. DATE OF NOTICE PENALTY AMOUNT 1 143(2) & 142(1) 18 - 08 - 2010 & 29-06-2011 ` 10,000/ - 2 142(1) 12 - 10 - 2011 ` 10,000/ - 3 142(1) 16 - 11 - 2011 ` 10,000/ - 6. EVEN IF IT IS PRESUMED THAT THE FIRST NOTICE ISSUED U/S. 143(2) DATED 18-08-2010 WAS NOT SERVED ON THE ASSESSEE AS THE SAME WAS ISSUED AND SERVED ON THE OLD ADDRESS OF THE ASSESSEE, THE SUBSEQUENT NOTICES U/S. 142(1) WERE ISSUED AT THE NEW ADDRESS OF T HE ASSESSEE. ALTHOUGH, THE SUBSEQUENT NOTICES WERE DULY RECEIVED BY THE FAMILY MEMBERS OF THE ASSESSEE YET THE ASSESSEE CHOSE NOT T O APPEAR BEFORE THE ASSESSING OFFICER. THE ASSESSEE HAS NOT DENIED THE R ECEIPT OF NOTICE DATED 16-11-2011 ISSUED U/S. 142(1) OF THE ACT. THE ASSE SSEE HAS NOT BEEN ABLE TO SHOW REASONABLE CAUSE FOR NON-APPEARANCE AS ENVISAGED U/S. 273B OF THE PROVISIONS OF THE ACT. THUS, WE REJECT T HE FIRST CONTENTION OF THE ASSESSEE. 8 ITA NO. 1907/PUN/2013, A.Y. 2009-10 7. IN AN ALTERNATE SUBMISSION THE ASSESSEE HAS PRAYED FOR ONE TIME LEVY OF PENALTY U/S. 271(1)(B) OF THE ACT. KEEPING IN VIEW THE TOTALITY OF FACTS AND CIRCUMSTANCES WE ACCEPT THE ALTERNATE SUBMISS ION OF THE ASSESSEE AND CONFIRM THE LEVY OF PENALTY U/S. 271(1)(B) OF THE ACT FOR NON-COMPLIANCE OF NOTICE ISSUED U/S. 142(1) DATED 16-11-2011. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ACCEPTED. ORDER PRONOUNCED ON FRIDAY, THE 10 TH DAY OF MARCH, 2017. SD/- SD/- ( . . / R.K. PANDA) ( ! ' / VIKAS AWASTHY) #' / ACCOUNTANT MEMBER $ % #' / JUDICIAL MEMBER / PUNE; &# / DATED : 10 TH MARCH, 2017 RK *+,%-.#/#)- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ' () / THE CIT(A)-I, NASHIK 4. THE CHIEF COMMISSIONER OF INCOME TAX, NASHIK 5. !*+ %%,- , ,- , . ./0 , / DR, ITAT, B BENCH, PUNE. 6. + 1 23 / GUARD FILE. // ! % // TRUE COPY// #4 / BY ORDER, / TRUE COPY / 5 6 / ASSISTANT REGISTRAR, ,- , / ITAT, PUNE