Smt. Moumita Majumder, North 24 Parganas V. ITO, Ward - 55(4), Kolkata, Kolkata

ITA 1977/KOL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54654 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-11-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2002-2003
• Appeal Filed On: 28-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K ROY
• Assessee Lawyers: ALOK SUR
• Keywords: Reasonable cause
• Section: 273B; 142(1)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA () BEFORE . . , ! '# '# '# '# /AND ' $# , ! ) [BEFORE SHRI S. V. MEHROTRA, AM & SRI MAHAVIR SINGH , JM] #% #% #% #% / I.T.A NO. 1977/KOL/2010 $&' '() $&' '() $&' '() $&' '()/ // / ASSESSMENT YEAR: 2002-03 SMT. MOUMITA MAJUMDER VS. INCOME-TAX OFFICER, W D-55(4), KOLKATA (PAN:AICPM 7094 A) (+, /APPELLANT ) (-.+,/ RESPONDENT ) DATE OF HEARING: 24.11.2011 DATE OF PRONOUNCEMENT: 24.11.2011 FOR THE APPELLANT: SHRI ALOK SUR FOR THE RESPONDENT: SHRI S. K. ROY / / ORDER PER MAHAVIR SINGH, JM ( ' $# ' $# ' $# ' $#, , , , ! ! ! ! ) THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-XXXVI, KOLKATA IN APPEAL NO.07/CIT(A)-XXXVI/KOL/SET ASIDE/09-10 DATED 30.11. 2009. THE PENALTY WAS LEVIED U/S. 271(1)(B) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) BY ITO, WD-55(4), KOLKATA VIDE ORDER DATED 11.01.2005. 2. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AGA INST THE ORDER OF CIT(A) CONFIRMING THE LEVY OF PENALTY U/S. 271(1)(B) OF THE ACT. FOR THI S, ASSESSEE HAS RAISED FOLLOWING TWO GROUNDS: 1. FOR THE FACTS AND CIRCUMSTANCES, THE A.O. AND C IT APPEAL WRONGLY DISALLOWED THE EXPLANATION FILED BY THE APPELLANT AND HE DENIED TH E EVIDENCE OF A MEDICAL PRACTITIONER. 2. FOR THE FACTS AND CIRCUMSTANCES THE HONBLE TRIB UNAL SET ASIDE THE MATTER AND BACK TO THE FILE OF CIT(A) FOR FRESH HEARING IN TWO CASES B EING NOS. ITA NO.2582 & 2583 (KOL)/2005 FOR ASSESSMENT ORDER AND PENALTY ORDER. BUT THE CIT(A) SEND NOTICE FOR ONLY IN RESPECT OF PENALTY ORDER. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE ASSESSEE IS ENGAGED IN PATHOLOGICA L TESTING CENTRE AND MAINTAINED PATIENTS REGISTER. THE ASSESSEE IS NOT MAINTAINING BOOKS OF ACCOUNT AND THE GROSS RECEIPTS OF ASSESSEE ARE AT RS.1,18,496/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, NOTICE U/S. 143(2) WAS ISSUED AND THE CASE WAS ADJOURNED TO 15.4.2004. SUBSEQUEN TLY, NOTICE U/S. 142(1) WAS ISSUED ON 05.07.2004 AND SERVED ON ASSESSEE ON 10.07.2004 FIX ING THE DATE OF HEARING ON 29.7.2004. AS 2 ITA 1977/K/2010 MOUMITA MAJUMDER. A.Y.02-03 THERE WAS NO COMPLIANCE FROM THE ASSESSEES SIDE, N OTICE U/S. 271(1)(B) OF THE ACT WAS ISSUED ASKING THE ASSESSEE TO SHOW CAUSE WHY PENALTY SHOUL D NOT BE LEVIED FOR NON-COMPLIANCE OF NOTICE U/S. 142(1) OF THE ACT. EVEN DURING THE PEN ALTY PROCEEDINGS, THERE WAS NO COMPLIANCE ON THE PART OF ASSESSEE, AO IMPOSED PENALTY U/S. 271(1 )(B) OF THE ACT AMOUNTING TO RS.10,000/- BEFORE CIT(A) ASSESSEE FILED MEDICAL CERTIFICATE FO R ASSESSEES ILLNESS DURING NOVEMBER, 2004 TO JANUARY, 2005 AND THE CIT(A) DISMISSED ASSESSEE S GROUND BY STATING THAT IN THE FIRST ROUND OF APPEAL, CIT(A) DISMISSED THE APPEAL AS NOT ADMITTED SINCE THE GROUNDS OF APPEAL WAS NOT SIGNED AND THE GROUND REGARDING ILL HEALTH WAS NOT TAKEN B Y ASSESSEE. WE FIND THAT THE FACTUM OF ILLNESS IS NOT DENIED BY CIT(A) AND EVEN THOUGH THE CERTIFI CATE WAS AVAILABLE REGARDING ILLNESS DURING NOVEMBER, 2004 TO JANUARY, 2005, ASSESSEES CASE FA LLS UNDER REASONABLE CAUSE UNDER PROVISIONS OF SECTION 273B OF THE ACT. WE FIND THAT FOR NON-C OMPLIANCE THERE IS REASONABLE CAUSE AND WE DELETE THE PENALTY. ORDERS OF LOWER AUTHORITIES AR E REVERSED AND THE APPEAL OF ASSESSEE IS ALLOWED. 4. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. 5. ORDER PRONOUNCED IN OPEN COURT . SD/- SD/- . . ! ' '' ' $# $# $# $# , ! (S. V. MEHROTRA) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( 0 0 0 0) )) ) DATED : 24 TH NOVEMBER, 2011 '12 $&34 $5' JD.(SR.P.S.) / 6 -$$7 87(9- COPY OF THE ORDER FORWARDED TO: 1 . +, / APPELLANT SMT. MOUMITA MAJUMDER, KALYANI ROAD, PO NABAPALLY, P.S. BARASAT, NORTH 24 PGS. PIN-700126 . 2 -.+, / RESPONDENT, ITO, WD-55(4), KOLKATA 3 . $/& ( )/ THE CIT(A), KOLKATA 4. $/& / CIT, KOLKATA 5 . '$? -$& / DR, KOLKATA BENCHES, KOLKATA .7 -$/ TRUE COPY, /&@/ BY ORDER, #4 /ASSTT. REGISTRAR .