M/s. Buniyad Chemicals Ltd., Ahmedabad V. The Dy.CIT.,C.C.2(3), Ahmedabad

ITA 200/AHD/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 50636 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 16-09-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 25-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 142(1); 27

Judgement Text

- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH CAHMEDABAD BEFORE S/SHRI D. K. TYAGI, J.M. AND A. K. GARODIA, A.M. ITA NO. ASST. YEAR 200/AHD/2011 2006-07 201/AHD/2011 2006-07 M/S BUNIYAD CHEMICALS LTD., 58, WHITE HOUSE, PANCHVATI, AHMEDABAD. V/S . DY. CIT, CC-2(3), AHMEDABAD. (APPELLANT) .. (RESPONDENT) APPELLANT BY :- NONE RESPONDENT BY:- SHRI VINOD TANWANI, SR.DR DATE OF HEARING :16/9/2011 DATE OF PRONOUNCEMENT :23/9/2011. O R D E R PER D. K. TYAGI, JUDICIAL MEMBER. THESE TWO APPEALS ARE FILED BY THE ASSESSEE AGAINS T THE ORDERS OF LD. CIT(A) DATED 06/12/2010 WHEREIN FOLLOWING COMMON GR OUNDS HAVE BEEN RAISED :- (1) THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS IN PAS SING THE ORDER U/S 250 OF THE ACT AND CONFIRMING THE ORDER OF THE AO. (2) THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS IN PAS SING THE ORDER WITHOUT COMPLYING WITH THE PRINCIPLES OF NATURAL JU STICE. ITA NOS.200 & 201/AHD/2011 ASST. YEAR 2006-07 2 (3) THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS IN CON FIRMING THE PENALTY LEVIED U/S 271(1)(B) OF THE ACT AMOUNTING T O RS.10,000/- FOR NON-COMPLIANCE OF NOTICE DATED 18/09/2008/12/11/2008. 2. THE FACTS OF THE CASE ARE THAT RETURN OF INCOME WAS FILED BY THE ASSESSEE COMPANY ON 16 TH OCTOBER, 2007 DECLARING A NET LOSS OF RS.16,616/-. THEREAFTER THE CASE WAS PICKED UP FOR SCRUTINY AND NOTICE U/S 143(2) AND 142(1) WAS ISSUED ON 18.09.2008 INFORMIN G THE ASSESSEE THAT ITS CASE IS SELECTED UNDER SCRUTINY. NO COMPLIANCE WAS MADE TO THE SAID NOTICES BY THE ASSESSEE COMPANY. THEREAFTER A SHOW CAUSE NOTICE WAS ISSUED U/S 142(1) ON 12.11.2008 FIXING THE DATE OF HEARING ON 20.11.2008. HOWEVER, THERE WAS NO COMPLIANCE EVEN ON THIS DATE. SINCE THE ASSESSEE FAILED TO COMPLY WITH THE TERMS OF THE STATUTORY NO TICE U/S 142(1) ISSUED IN ITS CASE, PENALTY PROCEEDINGS WERE INITIATED U/S 27 1(1)(B) OF THE ACT AGAINST THE ASSESSEE FOR DEFAULT IN RESPECT OF THE NOTICE DATED 18.09.2008. SUBSEQUENTLY THE CASE GOT TRANSFERRED TO THE OFFICE OF THE DEPUTY COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE -2(3), AH MEDABAD VIDE CENTRALIZATION ORDER NO.CIT-10/JURIS.127/TRANSFER/2 008-09 DATED 27.01.2009. THEREAFTER A FRESH NOTICE U/S 274 R.W.S . 271 FOR THE DEFAULT U/S 271(1)(B) WAS ISSUED AND SERVED UPON THE ASSESSEE C OMPANY ON 11.06.2009 WITH A REQUEST TO EXPLAIN AS TO WHY PENA LTY OF RS.10,000/- U/S 271(1)(B) SHOULD NOT BE LEVIED FOR NON-COMPLIANCE O F THE STATUTORY NOTICE. THE REPLY WAS SOUGHT ON OR BEFORE 17.06.2009. ANOTH ER LETTER DATED ITA NOS.200 & 201/AHD/2011 ASST. YEAR 2006-07 3 17.06.2009 WAS ISSUED GIVING THE ASSESSEE AN OPPORT UNITY TO FILE ITS REPLY. ON THE APPOINTED DATE, NEITHER ANY ADJOURNMENT NOR REPLY TO THE ABOVE SHOW CAUSE NOTICE WAS FILED BY THE ASSESSEE. IN VIE W OF THESE FACTS, SINCE THE ASSESSEE FAILED TO COMPLY WITH THE TERMS OF THE STATUTORY NOTICE U/S 142(1) ISSUED IN ITS CASE THAT TOO WITHOUT ANY REAS ONABLE CAUSE, PENALTY PROCEEDINGS U/S 271(1)(B) ARE ATTRACTED. THEREFORE, THE AO IMPOSED PENALTY OF RS.10,000/-. IN APPEAL, THE LD. CIT(A) HAS CONFIRMED THE PENALTY. FURTHER AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. 3. AT THE TIME OF HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE. ADJOURNMENT APPLICATION DATED 15/9/2011 WAS REJECTE D AND WE PROCEEDED TO DECIDE THE APPEAL, AFTER HEARING THE LD. DR. 4. AFTER HEARING THE LD. DR AND PERUSING THE RECORD S, WE FIND THAT BOTH THE LOWER AUTHORITIES HAVE PASSED EX PARTE ORDERS W HILE IMPOSING/SUSTAINING THE PENALTY U/S 271(1)(B) OF TH E ACT WITHOUT GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . THEREFORE, IN OUR CONSIDERED VIEW, TO MEET THE ENDS OF NATURAL JUSTIC E, IT WILL BE JUST AND PROPER, IF THE ASSESSEE IS GIVEN ONE MORE OPPORTUNI TY TO EXPLAIN HIS NON- COMPLIANCE BEFORE THE AO AND FOR THIS, THE MATTER I S RESTORED BACK TO THE FILE OF LD. CIT(A), WHO WILL DECIDE THE ISSUE AFRES H AFTER GIVING ANOTHER ITA NOS.200 & 201/AHD/2011 ASST. YEAR 2006-07 4 OPPORTUNITY OF BEING HEARD TO THE ASSESS. ACCORDING LY, WE RESTORE THE MATTER TO THE FILE OF LD. CIT(A) WITH THE DIRECTION TO DECIDE THE ISSUE AFRESH AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEIN G HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO CO-OPERA TE IN THE APPELLATE PROCEEDINGS BEFORE LD. CIT(A). THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, THE APPEALS ARE ALLOWED FOR STATI STICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON23/9/2011 SD/- SD/- (A. K. GARODIA) (D. K. TYAGI) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD, DATED : 23/9/2011 MAHATA/- COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD ITA NOS.200 & 201/AHD/2011 ASST. YEAR 2006-07 5 1.DATE OF DICTATION 16/9/11. 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING MEMBER 21/9/11. /OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.. 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 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..