Balbir Singh Yadav, Kanpur V. Income Tax Officer-3(1), Kanpur

ITA 199/LKW/2014

• Counselvise Citation: 19923714 RSA 2014
• Duration Of Justice: 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 25-11-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 25-03-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO.199 & 200/LKW/2014 ASSESSMENT YEAR:2005-06 BALBIR SINGH YADAV PROP. M/S YADAV CONSTRUCTION CO. 12/36/8, GWALITOLI, KANPUR V. INCOME TAX OFFICER 3(1) KANPUR TAN/PAN:AACPY1372R (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. RAKESH GARG, ADVOCATE RESPONDENT BY: SHRI. AMIT NIGAM, D.R. DATE OF HEARING: 25 11 2014 DATE OF PRONOUNCEMENT: 08 01 2015 O R D E R PER SUNIL KUMAR YADAV: THESE APPEALS ARE PREFERRED BY THE ASSESSEE AGAINST THE RESPECTIVE ORDER OF THE LD. CIT(A). 2. SINCE THESE APPEALS WERE HEARD TOGETHER, THESE ARE BEING DISPOSED OF THROUGH THIS CONSOLIDATED ORDER. WE, HOWEVER, PREFER TO ADJUDICATE THEM ONE AFTER THE OTHER. I.T.A. NO. 200/LKW/2014: 3. IN THIS APPEAL, THE ORDER OF THE LD. CIT(A) CONFIRMING THE PENALTY OF RS.8 LAKHS LEVIED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT'), IS CHALLENGED. 4. OUR ATTENTION WAS INVITED TO THE FACT THAT IN THE QUANTUM, THE ORDER OF THE LD. CIT(A) WAS SET ASIDE AND THE MATTER WAS RESTORED TO THE ASSESSING OFFICER BY THE TRIBUNAL IN I.T.A. NO. 596/LKW/2013 VIDE ITS ORDER :- 2 -: DATED 18.12.2013 FOR RE-COMPUTATION OF THE INCOME. COPY OF THE ORDER OF THE TRIBUNAL IS PLACED ON RECORD. IN THE LIGHT OF THESE FACTS, IT WAS CONTENDED THAT THE PENALTY ORDER DESERVES TO BE SET ASIDE AND THE MATTER BE RESTORED TO THE ASSESSING OFFICER. 5. FINDING FORCE IN THE CONTENTIONS OF THE ASSESSEE, WE ARE OF THE VIEW THAT WHEN THE ASSESSMENT ORDER IS SET ASIDE AND THE ISSUE OF RE- COMPUTATION OF INCOME IS SUB JUDICE BEFORE THE ASSESSING OFFICER, PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT IS NOT SUSTAINABLE. WE, THEREFORE, SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO PASS A CONSEQUENTIAL ORDER IN RESPECT OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT AFTER COMPLETING THE ASSESSMENT CONSEQUENT TO THE ORDER OF THE TRIBUNAL. I.T.A. NO. 199/LKW/2014: 6. IN THIS APPEAL, THE ASSESSEE HAS ASSAILED THE ORDER OF THE LD. CIT(A) CONFIRMING THE PENALTY OF RS.10,000/- LEVIED UNDER SECTION 271(1)(B) OF THE ACT. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THOUGH THE ASSESSEE WAS ASKED TO APPEAR BEFORE THE ASSESSING OFFICER, BUT ON ACCOUNT OF A REASONABLE CAUSE, HE COULD NOT MAKE COMPLIANCE AND THE ASSESSING OFFICER HAD LEVIED THE PENALTY. SINCE THERE WAS REASONABLE CAUSE FOR NON- APPEARANCE, PENALTY LEVIED UNDER SECTION 271(1)(B) OF THE ACT DESERVES TO BE DELETED. 7. THE LD. D.R., ON THE OTHER HAND, HAS INVITED OUR ATTENTION TO THE ORDER OF THE ASSESSING OFFICER WITH THE SUBMISSION THAT THE ASSESSING OFFICER HAS ISSUED VARIOUS NOTICES TO THE ASSESSEE FOR APPEARANCE, BUT THE ASSESSEE DID NOT APPEAR AND WHENEVER HE APPEARED HE SOUGHT ADJOURNMENT. THEREAFTER HE STOPPED APPEARING AND THE ASSESSING OFFICER HAS LEVIED PENALTY UNDER SECTION 271(1)(B) OF THE ACT FOR NON-COMPLIANCE OF :- 3 -: THE DIRECTIONS ISSUED ON 27.9.2006, ON WHICH DATE ASSESSEE HAS PUT UP HIS SIGNATURES ON THE ORDER SHEET. 8. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES, WE FIND THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAS ISSUED VARIOUS NOTICES TO THE ASSESSEE AND SOMETIME ASSESSEE APPEARED AND SOMETIME HE STOPPED APPEARING BEFORE THE ASSESSING OFFICER. FROM THE PENALTY ORDER, IT IS CLEAR THAT NOTICE DATED 27.9.2006 WAS PROPERLY SERVED UPON THE ASSESSEE AND CERTAIN DETAILS WERE REQUIRED TO BE FURNISHED, BUT THE ASSESSEE DID NOT MAKE COMPLIANCE OF THE DIRECTIONS ISSUED BY THE ASSESSING OFFICER. ON A CAREFUL PERUSAL OF THE ASSESSMENT ORDER, IT IS ALSO NOTICED THAT THE ASSESSEE HAS NOT EXTENDED PROPER CO-OPERATION TO THE ASSESSING OFFICER IN ORDER TO COMPLETE THE ASSESSMENT. NOTICE ISSUED UNDER SECTION 143(2) OF THE ACT ON 27.9.2006 WAS ALSO NOT COMPLIED WITH. THEREFORE, THE ASSESSING OFFICER WAS CONSTRAINED TO LEVY PENALTY UNDER SECTION 271(1)(B) OF THE ACT. SINCE WE DO NOT FIND ANY INFIRMITY IN THE LEVY OF PENALTY ON ACCOUNT OF NON-COOPERATIVE ATTITUDE OF THE ASSESSEE, WE CONFIRM THE ORDER OF THE LD. CIT(A) WHO HAS RIGHTLY CONFIRMED THE PENALTY UNDER SECTION 271(1)(B) OF THE ACT. ACCORDINGLY, THE ORDER OF THE LD. CIT(A) IS CONFIRMED. 9. IN THE RESULT, APPEAL IN I.T.A. NO. 199/LKW/2014 IS DISMISSED AND I.T.A. NO. 200/LKW/2014 IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 8 TH JANUARY, 2015 JJ:1612 :- 4 -: COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR