Shri Ganeshi Lal Narayan Das Agrawal Charitable Society , Vrindavan Mathura V. ITO (Exemption), Agra

ITA 21/AGR/2023

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 6726 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-06-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 02-06-2024
• Assessment Year: misc
• Appeal Filed On: 02-02-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 147; 148; 143(3); 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE: SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER AND SHRI P.C. YADAV, JUDICIAL MEMBER ITA No. 21/Agr/2023 Assessment Year: 2010-11 Shri Ganeshi Lal Narayan Das Agarwal Charitable Society, 200/1, Yugal Niwas, Raman Reti, Vrindavan, Distt. Mathura. PAN:AADTS9591H versus DCIT (Exemption), Circle Ghaziabad. (Appellant) (Respondent) Assessee by : None (Adjournment Appl. filed) Revenue by : Sh. Shailendra Srivastava, Sr. DR Date of hearing : 03.06.2024 Date of pronouncement: 03.06.2024 ORDER PER P.C. YADAV, JM: Present appeal of the assessee is arising from the order of ld. CIT(Appeals), NFAC, Delhi dated 19.01.2023 having DIN: ITBA/NFAC/S/250/2022-23/1048920181(1) for assessment year 2010-11. 2. The short issue involved in this appeal is whether the Assessing Officer was justified in levying penalty of Rs.10,000/- u/s. ITA No. 21/Agr/2023 2 271(1)(b) of the Income-tax Act, 1961. It is the case of the Assessing Officer that the assessee could not appear on 08.08.2017 in compliance to notice dated 24.07.2017 issued u/s. 142(1) of the Income-tax Act and hence, the Assessing Officer issued a show cause notice dated 25.10.2017 to the assessee proposing to levy penalty u/s. 271(1)(b) of the Income Tax Act. 3. Brief facts of the case, which are coming out from the paper book filed by the assessee, are that in this case, the assessee filed its original return of income on 29 th September, 2010 declaring nil income. The original return filed by the assessee was selected for scrutiny and on 25.05.2012, an order of assessment u/s. 143(3) had been passed wherein, the returned income of the assessee has been accepted. Thereafter, on 30 th March, 2017, notice u/s. 148 of the Income Tax Act was issued to the assessee and case of the assessee was reopened. On 04.04.2017, the assessee filed a reply before ld. Assessing Officer and sought copy of reasons recorded. Upon the receipt of reasons recorded, the assessee vide its letter dated 16 th May, 2017 filed its objections, challenging the jurisdiction of the Assessing Officer u/s. 147 in terms of the judgment of Hon’ble ITA No. 21/Agr/2023 3 Supreme Court in G.K.N. Driveshafts(I) Ltd., 259 ITR 19. Thereafter on 24 th July, 2017, the Assessing Officer without disposing of the objections of the assessee dated 16.05.2017, issued notice u/s. 142(1) of the Income-tax Act on 24.07.2017 calling for certain explanations of the assessee and fixed the matter for 08.08.2017. This notice u/s. 142(1) has not been received by the assessee, as contended by the assessee. Thereafter, on 25.10.2017, the Assessing Officer issued notice u/s. 271(1)(b) and sought reply of the assessee as to why penalty u/s. 271(1)(b) cannot be levied upon the assessee for its failure to attend the proceedings on 08.08.2017. On 1 st November, 2017, the assessee responded to the notice u/s. 271(1)(b) and pointed out that the impugned notice was received by the assessee society on 30 th October, 2017 at 3.00 p.m., the date on which the penalty order levying penalty u/s. 271(1)(b) amounting to Rs.10,000/- was already passed by the Assessing Officer, meaning thereby, the assessee contended that it has not received the notice till 30.10.2017. The assessee further contended that the objections of the assessee have not been disposed of by the Assessing Officer and the assessee was waiting for the disposal order of his objections ITA No. 21/Agr/2023 4 instead of penalty notice. However, dissatisfied with the reply of the Assessing Officer, the Assessing Officer had levied penalty. 4. Aggrieved with the order of Assessing Officer, the assessee filed appeal before ld. CIT(Appeals) and contended that the assessee was under the bona fide belief that the Assessing Officer will proceed in the matter as per the guidelines of Hon’ble Supreme Court in the case of GKN Drive Shafts (supra). However, ld. CIT(Appeals) affirmed the order of the Assessing Officer. Now, the assessee is in appeal before us. 5. Today, when the matter was called for hearing, none appeared on behalf of the assessee. An adjournment application was filed. Considering the small quantum of penalty, the Bench rejected the adjournment application and proceeded with the matter. 6. Ld. DR relied upon the order of ld. CIT(Appeals), particularly, para-7 of the CIT(Appeals) order. However, he could not refute the submissions of the assessee made before the Assessing Officer as well as ld. CIT(Appeals). 7. After considering the submissions of ld. DR, replies of the assessee as annexed in the paper book as well as considering the ITA No. 21/Agr/2023 5 fact that, by the time the assessee was served with the notice of proposed penalty, i.e., 30.10.2017, the Assessing Officer had already levied the penalty on 30.10.2017. We also appreciate that the assessee was under the bona fide belief that the Assessing Officer will proceed in the matter after disposing of the objections of the assessee. Therefore, in the facts and circumstances of the case, we hold that no penalty is leviable and we direct the department to delete the penalty. 8. In the result, appeal of the assessee is allowed. Order pronounced in the open court on 03.06.2024 on conclusion of hearing. Sd/- Sd/- (RAMIT KOCHAR) (P.C. YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 03.06.2024 *aks/-