Om Bhole Transport & Construction, Surat V. The Income tax Officer,Ward-6(3), Surat

ITA 1978/AHD/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 63199 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 05-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T SHANKAR
• Keywords: Reasonable cause; Non compliance
• Section: 143(3); 142(1)

Judgement Text

ITA NO 1978 /AHD/2012 A.YR.. 2007 -08 1 IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AH MEDABAD (BEFORE SHRI MUKUL KR.SHRAWAT JM & SHRI ANIL CHATUR VEDI A.M.) I.T.A. NO.197 8/AHD/2012. (ASSESSMENT YEAR: 2007-08 ) OM BHOLE TRANSPORT & CONSTRUCTION, VISHNU NAGAR SOCIETY, BUS STOP NO.3, HAZIRA ROAD, ICHHAPORE, SURAT. (APPELLANT) VS. INCOME TAX OFFICER, WARD 6(3), AAYAKAR BHAVAN, MAJURA GATE, SURAT. (RESPONDENT) PAN: AAAFO9876C APPELLANT BY : NONE (WRITTEN SUBMISSIONS) RESPONDENT BY : MR.T.SHANKAR, SR. D.R. ( )/ ORDER DATE OF HEARING : 1-11-201 2 DATE OF PRONOUNCEMENT : 14-12-2012 PER: SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER OF LD. CIT (A)- IV, SURAT DATED 31-5-2012 FOR THE ASSESSMENT YEAR 2 007-08 AGAINST THE PENALTY ORDER DATED 22-1-2010 PASSED U/S.271 (1)(B) WHEREIN A PENALTY OF RS.10,000/- HAS BEEN LEVIED BY THE A.O. ITA NO 1978 /AHD/2012 A.YR.. 2007 -08 2 2. IN THIS CASE DURING THE COURSE OF ASSESSMENT PRO CEEDINGS, A.O. ISSUED NOTICE U/S. 271(1)(B) ON 24-7-2009 FOR NON C OMPLIANCE OF NOTICES ISSUED U/S. 143(2) AND 142(1) OF THE ACT. SINCE THE ASSESSEE FAILED TO OFFER ANY EXPLANATION, A.O. OPINED THAT ASSESSEE HAD NO O BJECTION FOR LEVY OF PENALTY AND ACCORDINGLY LEVIED PENALTY OF RS.10,000 /- VIDE ORDER DATED 22- 1-2010. AGGRIEVED BY THE ORDER OF A.O., ASSESSEE CA RRIED THE MATTER BEFORE CIT (A). CIT (A) CONFIRMED THE PENALTY BY DISMISSI NG THE APPEAL OF THE ASSESSEE BY HOLDING AS UNDER: 3.2. THOUGH THE ASSESSEE HAS NOT FILED ANY EVIDENC E OF LATE RECEIPT OF ORDER, FOR THE SAKE OF JUSTICE AND FAIRPLAY, THE DELAY IN FILLING OF APPEAL IS CONDONED. I AM HOWEVER NOT ABLE TO AGREE WITH THE CONTENTION OF THE APPELLANT THAT LEVY OF PENALTY IS INVALID AS NO SATISFACTION HAS BEEN RECORDED IN THE ASSESSMENT OR DER AND BECAUSE THE PENALTY WAS LEVIED AFTER PASSING THE ASSESSMENT ORDER. THE PENALTY WAS INITIATED BEFORE THE COMPLETION OF ASSE SSMENT AND THEREFORE THERE WAS NO REQUIREMENT FOR RECORDING TH E SATISFACTION IN THE ASSESSMENT ORDER. IT IS NOT THE CONTENTION OF T HE APPELLANT THAT SATISFACTION HAS NOT BEEN RECORDED BY THE A.O. DURI NG THE COURSE OF PROCEEDINGS UNDER THE ACT. THE TIME ALLOWED FOR LEV YING PENALTY IS SIX MONTHS FROM THE END OF MONTH IN WHICH IT IS INITIAT ED AND SINCE THE ORDER LEVYING PENALTY HAS BEEN PASSED IN JANUARY, 2 010 IT IS WITHIN TIME. SIMILARLY, PENALTY IS LEVIED U/S. 271(1)(B) F OR NON COMPLIANCE TO STATUTORY NOTICE AND SIMPLY BECAUSE ASSESSMENT WAS COMPLETED U/S. 143(3), IT CANNOT BE HELD AS COMPLIANCE. THE APPELL ANT IS REQUIRED TO SHOW THAT REASONABLE CAUSE PREVENTED HIM FROM COMPL IANCE. NO SUCH REASONABLE CAUSE HAS BEEN SHOWN TO EXIST. I AM THEREFORE CONSTRAINED TO UPHOLD THE ORDER OF THE A.O. LEVYING PENALTY U/S. 271(1)(B). PENALTY LEVIED IS CONFIRMED. GROUNDS ARE DISMISSED. 3. AGGRIEVED BY THE ORDER OF CIT (A), THE ASSESSEE IS NOW IN APPEAL BEFORE US. BEFORE US, NONE APPEARED ON BEHALF OF AS SESSEE BUT HOWEVER ITA NO 1978 /AHD/2012 A.YR.. 2007 -08 3 WRITTEN SUBMISSIONS WERE SUBMITTED AND THE SAME HAV E BEEN CONSIDERED BY US. 4. THE ASSESSEE HAS SUBMITTED THAT THE STATEMENT OF THE A.O. THAT THE ASSESSEE HAD NOT COMPLIED WITH THE NOTICE ISSUED U/ S. 143(2) AND 142(1) IS NOT CORRECT IN VIEW OF THE FACT THAT NOTICES ISSUED BY THE A.O. WERE COMPLIED BY THE ASSESSEE. HE POINTED OUT TO THE FACT THAT IN THE ASSESSMENT ORDER PASSED U/S. 143(3) THE A.O. HAS STATED IN FIRST PAR A IN RESPONSE TO THE NOTICE, SHRI PURAN RAVAL, ITP AND AR OF THE ASSESSE E ATTENDED AND FURNISHED THE REQUIRED DETAILS FROM TIME TO TIME. T HE SAME ARE VERIFIED AND PLACED ON RECORD. THE CASE IS DISCUSSED WITH THE AR OF THE ASSESSEE. IT IS FURTHER SUBMITTED THAT THE ASSESSMENT WAS FRAMED U/ S. 143(3) VIDE ORDER DATED 18-12-2009 AND IN THE ORDER NO PENALTY WAS IN ITIATED. THE COPY OF THE ASSESSMENT ORDER WAS ALSO PLACED ON RECORD. THE ASS ESSEE ALSO RELIED ON THE DECISION IN THE CASE OF KARNAVATI CAR AIR CONDI TIONERS (P) LTD. VS. ITO (ITA NO.2837/AHD/2011) AND PLACED ON RECORD THE COP Y OF THE DECISION. IT WAS THUS URGED THAT THE PENALTY LEVIED BY THE A.O. BE DROPPED. 5. THE LD. D.R. RELIED ON THE ORDER OF THE A.O. 6. WE HAVE HEARD THE LD. D.R. AND PERUSED THE MATER IAL ON RECORD. FROM THE COPY OF THE ASSESSMENT ORDER PASSED U/S. 1 43(3) AND WHICH IS PLACED ON RECORD, WE FIND THAT THE A.O. HAS STATED AS UNDER: IN RESPONSE TO THE NOTICE, SHRI PURAN RAVAL, ITP A ND AR OF THE ASSESSEE ATTENDED AND FURNISHED THE REQUIRED DETAIL S FROM TIME TO TIME. THE SAME ARE VERIFIED AND PLACED ON RECORD. T HE CASE IS DISCUSSED WITH THE A.R. OF THE ASSESSEE. ITA NO 1978 /AHD/2012 A.YR.. 2007 -08 4 7. THUS IT IS APPARENT THAT THE A.R. OF THE ASSESSE E ALONG WITH THE ITP MADE THEMSELVES AVAILABLE DURING THE ASSESSMENT PRO CEEDINGS AND FURNISHED THE NECESSARY DETAILS CALLED FOR BY THE A .O. ON THE BASIS OF DETAILS AND SUBMISSIONS MADE, THE ASSESSMENT WAS FR AMED U/S. 143(3).IN VIEW OF THE AFORESAID FACTS IT CANNOT BE SAID THAT THE ASSESSEE DID NOT COMPLY WITH THE NOTICES SERVED UPON IT. 8. IN THE CASE OF KARNAVATI CAR AIR CONDITIONERS (P ) LTD.,(ITA NO.2837/AHD/2011) THE CO-ORDINATE BENCH HAS HELD AS UNDER: 5. IT IS APPARENT FROM THE ABOVE THAT THE ASSESSEE ATTENDED THE ASSESSMENT PROCEEDINGS FROM TIME TO TIME AND FURNIS HED THE DETAILS AS CALLED FOR BY THE ASSESSING OFFICER BY ISSUING N OTICE UNDER SECTION142(1) OF THE ACT AND ON THE BASIS OF THOSE DETAILS, THE INCOME SHOWN BY HIM WAS ACCEPTED. IN THE LIGHT OF THIS UND ISPUTED FACT OF THE CASE, IT CANNOT BE SAID THAT THE ASSESSEE DID NOT C OMPLY WITH THE NOTICES SERVED UPON HIM BY THE ASSESSING OFFICER. W E FURTHER FIND THAT THE PROVISIONS OF SECTION 271(1)(B) DO NOT MAK E IT COMPULSORY FOR THE ASSESSING OFFICER TO IMPOSE THE PENALTY IN SUCH CASES OF TECHNICAL LAPSE AS THE WORDS USED ARE MAY DIRECT FOR IMPOSITION OF PENALTY. SINCE THE ASSESSING OFFICER HAS DISCRETION IN THE MATTER, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSING OF FICER SHOULD HAVE EXERCISED HIS JURISDICTION AND SHOULD NOT HAVE IMPO SED THE PENALTY, AS THIS IS NOT A FIT CASE FOR SUCH IMPOSITION OF PE NALTY. 9. IN VIEW OF THE TOTALITY OF FACTS AND RESPECTFULL Y FOLLOWING THE DECISION OF THE CO-ORDINATE BENCH IN THE CASE OF KARNAVATI CAR AIR CONDITIONERS (P) LTD. (SUPRA), WE ARE OF THE VIEW THAT IN THE PRESENT CAS E, LEVY OF PENALTY IS NOT CALLED FOR. WE THUS DELETE THE PENALTY LEVIED BY TH E A.O. THUS, THIS GROUND OF ASSESSEE IS ALLOWED. ITA NO 1978 /AHD/2012 A.YR.. 2007 -08 5 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN OPEN COURT ON 14- 12 - 2012. SD/- SD/- (MUKUL KUMAR SHRAWAT) (ANIL CHATURVEDI) JUDICIAL MEMBER ACC OUNTANT MEMBER AHMEDABAD. S.A.PATKI. COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS)-IV, SURAT. 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD 1.DATE OF DICTATION 20 - 11 -2012 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 20 / 11 / 2012 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S - -2012. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT - -2012 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S - -2012 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK - -2012. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..