Shri Vinubhai Harilal Patel, Ahmedabad V. The Income tax Officer,Ward-13(3), Ahmedabad

ITA 1967/AHD/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6758 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 10 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 06-04-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 16-06-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJEEB JAIN SRDR
• Assessee Lawyers: S V AGARWAL
• Section: 144

Judgement Text

` IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD BEFORE SHRI D.K. TYAGI, HONBLE JUDICIAL MEMBER AND SHRI A.N.PHAUJA, HONBLE ACCOUNTANT MEMBER ITA NO.1967/AHD/2009 ASSESSMENT YEAR:2005-06 DATE OF HEARING:6.4.11 DRAFTED:18.4.11 VINUBHAI HARILAL PATEL, 186, NEHRU PARK, OPP. TRIBHUVAN BUNGALOWS, VASTRAPUR, AHMEDABAD PAN NO.ADMPP1155G V/S. INCOME TAX OFFICER, WARD-13(3), AHMEDABAD (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI S.V. AGARWAL, AR RESPONDENT BY:- SHRI RAJEEB JAIN, SR-DR O R D E R PER D.K. TYAGI, JUDICIAL MEMBER:- THIS IS ASSESSEES APPEAL AGAINST THE ORDER OF COM MISSIONER OF INCOME-TAX(APPEALS)-XXI, AHMEDABAD IN APPEAL NO. CI T(A)- XXI/108/WD.13.(3)/08-09 DATED 31-03-2009 FOR THE AS SESSMENT YEAR 2005-06. 2. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUND:- [1] THE LEARNED COMMISSIONER OF INCOME-TAX(A) HAS ERRED IN CONFIRMING PENALTY OF RS.10,000/- U/S.271(1)(B) OF THE INCOME- TAX ACT, 1961. 3. THE ASSESSING OFFICER WHILE LEVYING THE PENALTY HAS OBSERVED AS UNDER:- IN THIS CASE STATUTORY NOTICE U/S.143(2)(1) OF THE I.T. ACT DTD. 17.10.2007 WAS ISSUED AND SERVED ON THE ASSESSEE BY RPAD CALLI NG FOR COPIES OF BILLS IN RESPECT OF INCOME EARNED AGAINST SALE OF A GRICULTURE PRODUCE. ITA NO.1967/AHD/2009 A.Y. 2005-06 VINUBHAI H PATEL V. ITO WD-13(3), ABD PAGE 2 FOR THIS, A HEARING WAS FIXED FOR 31 ST OCTOBER 2007. HOWEVER, NEITHER ASSESSEE ATTENDED NOR FURNISHED THE DETAILS CALLED FOR/SOUGHT FOR ADJOURNMENT. THEREAFTER ONE MORE OPPORTUNITY OF BEI NG HEARD WAS GIVEN VIDE FINAL NOTICE DTD. 20.11.2007 WHICH WAS SERVED ON THE ASSESSEE BY RPAD, FIXING HEARING ON 28.11.2007. IN THE SAID NOT ICE/LETTER IT WAS BROUGHT TO THE NOTICE THAT IN CASE OF FAILURE TO CO MPLY WITH THE SAME, THE ASSESSMENT SHALL BE FINALIZED TO THE BEST OF JUDGEM ENT AND ON MERITS U/S 144 OF THE I.T. ACT 621. HOWEVER, THE ASSESSEE DID NOT COMPLY WITH THE SAME. THUS, THE ASSESSEE HAS FAILED TO COMPLY W ITH STATUTORY NOTICE ISSUED U/S.142(1), WHICH ATTRACTS PENALTY U/S.271(1 )(B) OF THE I.T. ACT 61. THEREFORE, A SHOW CAUSE NOTICE U/S.274 R.W.S. 271(1)(C)(B) WAS ISSUED ON 6.12.07, WHICH WAS SERVED ON THE ASSESSEE . HOWEVER, THE ASSESSEE HAD NO EXPLANATION TO OFFER 2. IN RESPONSE TO THE SHOW CAUSE NOTICE THE ASSESSE E VIDE HIS LETTER FILED ON 7.1.2008 HAS SIMPLY CONTENDED THAT HIS HOU SE WAS UNDER RENOVATION AND HE WAS STAYING IN ANOTHER HOUSE AND HENCE HE COULD NOT APPEAR BEFORE THE UNDERSIGNED. 3. THE CONTENTION OF THE ASSESSEE IS CONSIDERED WHI CH IS NOT ACCEPTABLE FOR THE REASON THAT THE NOTICE WAS DULY SERVED ON T HE ASSESSEE AS THE SAME WERE NOT RETURNED BACK BY THE POSTAL AUTHORITI ES. FURTHER, THE ASSESSEE HAS ALSO NOT DENIED THIS FACT. THEREFORE, THE ASSESSEE COULD HAVE ATTENDED THE OFFICE ON THE DATE OF HEARINGS EI THER PERSONALLY OR THOUGH ON AUTHORIZED REPRESENTATIVE. THEREFORE, I A M SATISFIED THAT IT IS A FIT CASE FOR LEVY OF PENALTY U/S.271(1)(B) FOR THE FAILURE TO COMPLY WITH THE STATUTORY NOTICES ISSUED TO THE ASSESSEE. ACCORDING LY, A PENALTY OF RS.10,000/- (RS. TEN THOUSAND ONLY) IS LEVIED ON TH E ASSESSEE U/S.271(1)(B) OF THE I.T. ACT61. IN APPEAL THE ACTION OF ASSESSING OFFICER WAS CONFI RMED BY LD. CIT(A), FURTHER AGGRIEVED NOW ASSESSEE IS IN APPEAL BEFORE US. 4. AT THE TIME OF HEARING LD. COUNSEL FOR THE ASSES SEE PLACING RELIANCE ON THE LETTER DATED 05-04-2007 ADDRESSED BY ASSESSEE T O INCOME-TAX OFFICER SUBMITTED THAT THERE IS NO NON-COMPLIANCE ON THE PA RT OF ASSESSEE AS ALL THE DETAILS REGARDING HIS AGRICULTURAL INCOME ASKED FOR BY THE ASSESSING OFFICER WERE SUBMITTED. THEREFORE AO WAS NOT JUSTIFIED IN L EVYING PENALTY U/S.271(1)(B) FOR THE FAILURE TO COMPLY THE STATUTO RY NOTICE ISSUED TO THE ASSESSEE. LD. DR ON THE OTHER HAND RELIED ON THE OR DER OF LOWER AUTHORITY. ITA NO.1967/AHD/2009 A.Y. 2005-06 VINUBHAI H PATEL V. ITO WD-13(3), ABD PAGE 3 5. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RECORD WE FIND FORCE IN THE CONTENTION OF LD. COUNSEL FOR THE ASSESSEE THAT ALL THE DETAILS REGARDING AGRICULTURAL INCOME WERE ENCLOSED BY THE ASSESSEE I N THE FORM OF FORM NO.8A, FORM NO.7/12 AND FORM NO.6 WHICH WERE ENCLOSED BY H IM WITH THE LETTER DATED 05-04-2007 IN COMPLIANCE TO THE NOTICE ISSUED BY ASSESSING OFFICER. THEREFORE, IT CANNOT BE SAID THERE WAS ANY NON-COMP LIANCE ON THE PART OF ASSESSEE. THEREFORE PENALTY IMPOSED BY ASSESSING OF FICER AND SUSTAINED BY LD. CIT(A) FOR NON-COMPLIANCE OF STATUTORY NOTICE I S NOT SUSTAINABLE AND THE SAME IS HEREBY DELETED. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 06/05/2011 SD/- SD/- (A.N.PHAUJA) (D.K. TYAGI) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, DATED : 06/05/2011 *DKP COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)-XXI, AHMEDABAD 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD