Sardarmal Kothari, CHENNAI V. ACIT, CHENNAI

ITA 2104/CHNY/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1098 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 05-03-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 22-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: UTTAMCHAND P JA IN
• Section: 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER ITA NO.2104/MDS/2012 ASST. YEARS : 2009-10 SARDARMAL KOTHARI, NO.664, T.H. ROAD, TONDIARPET, CHENNAI 600 081. PAN : AADPK9902A. (APPELLANT) V. THE ASST. COMMISSIONER OF INCOME TAX, BUSINESS RANGE-VII CHENNAI. (RESPONDENT) APPELLANT BY : MR. UTTAMCHAND P. JA IN, CA RESPONDENT BY : MR. SHAJI P. JACOB, ADDL.CIT DATE OF HEARING : 05 MAR 2013 DATE OF PRONOUNCEMENT : 08 MAR 201 3 O R D E R PER CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST T HE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-IX, CHENNAI , DATED 30.8.2012 FOR THE ASST. YEAR 2009-10. THE ONLY GRI EVANCE OF THE ASSESSEE IN THIS APPEAL IS THAT THE COMMISSIONER OF INCOME TAX ITA 2104/MDS/2012 2 (APPEALS) ERRED IN CONFIRMING THE PENALTY OF A.10,0 00/- LEVIED BY THE ASSESSING OFFICER UNDER SEC.271(1)(B) OF THE I.T. A CT. 2. THE ASSESSING OFFICER LEVIED PENALTY OF A.10,00 0/- UNDER SEC.271(1)(B) OF THE ACT AS THE ASSESSEE DID NOT RE SPOND TO NOTICES ISSUED BY HIM UNDER SEC.143(2) & 142(1) OF THE I.T. ACT ON THREE OCCASIONS, IE., ON 2.9.2010, 8.9.2011 AND 15.10.201 1, FIXING THE DATES OF HEARING ON 20.9.2010, 12.9.2011 AND 20.10. 2011 RESPECTIVELY. SUBSEQUENTLY, THE ASSESSMENT WAS MAD E UNDER SEC.143(3) OF THE ACT WHEREIN THE ASSESSEE APPEARED AND FURNISHED INFORMATION CALLED FOR BY THE ASSESSING OFFICER. T HE ASSESSEE PREFERRED APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) AGAINST LEVY OF PENALTY CONTENDING THAT NO SHOW CAU SE NOTICE HAS BEEN ISSUED BY THE ASSESSING OFFICER BEFORE LEVY OF PENALTY UNDER SEC.271(1)(B) OF THE ACT. 3. THE ASSESSEE CONTENDED THAT HE HAS COOPERATED W ITH THE ASSESSING OFFICER BY RESPONDING TO THE NOTICES ISSU ED THERE AFTER AND THE ASSESSMENT WAS COMPLETED UNDER SEC.143(3) OF TH E ACT AND, THEREFORE, SINCE HE HAS COOPERATED WITH THE ASSESSM ENT PROCEEDINGS ITA 2104/MDS/2012 3 COMPLYING WITH THE NOTICES SUBSEQUENTLY ISSUED AND SINCE THE ASSESSMENT WAS MADE UNDER SEC.143(3) OF THE ACT AND IT WAS NOT AN EX-PARTE ASSESSMENT UNDER SEC.144 OF THE ACT, THE A SSESSING OFFICER SHOULD NOT HAVE LEVIED PENALTY UNDER SEC.271(1)(B) OF THE ACT. HE PLACED RELIANCE ON THE DECISION OF DELHI BENCH OF T HE ITAT IN THE CASE OF AKHIL BHARTIYA PRATHMIK SHIKSHAK SANGH BHAWAN TR UST V. ASST. DIRECTOR OF INCOME TAX (115 TTJ 419) AND THE DECISI ON OF AHMEDABAD BENCH OF THE TRIBUNAL IN THE CASE OF SWAR NABEN M. KHANNA & OTHERS V. DCIT (132 TTJ 1). HOWEVER, THE COMMISSIONER OF INCOME TAX (APPEALS) CONFIRMED THE PENALTY LEVIE D BY THE ASSESSING OFFICER ON THE GROUND THAT THE ASSESSEE D ID NOT RESPOND TO THE NOTICES ISSUED BY THE ASSESSING OFFICER. 4. THE COUNSEL FOR THE ASSESSEE REITERATES THE SU BMISSIONS MADE BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS ) AND SUBMITS THAT THERE IS NO JUSTIFICATION IN LEVYING PENALTY, ESPECIALLY WHEN THE ASSESSMENT WAS MADE UNDER SEC.143(3) OF THE ACT AND NOT UNDER SEC.144 OF THE I.T. ACT. ITA 2104/MDS/2012 4 5. DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDER S OF LOWER AUTHORITIES. 6. WE HAVE HEARD BOTH SIDES. PERUSED THE MATERIAL S ON RECORD AND THE ORDERS OF AUTHORITIES BELOW. WE HAVE GONE THROUGH THE DECISIONS RELIED ON BY THE COUNSEL FOR THE ASS ESSEE. IN BOTH THESE DECISIONS, THE TRIBUNAL HELD THAT WHEN AN ASS ESSMENT HAS BEEN MADE UNDER SEC.143(3) AND NOT UNDER SEC.144 OF THE I.T. ACT, IT MEANS THAT SUBSEQUENT COMPLIANCE IN THE ASSESSMENT PROCEEDINGS WAS CONSIDERED AS GOOD COMPLIANCE AND THE DEFAULTS COMMITTED EARLIER WERE IGNORED BY THE ASSESSING OFFICER AND, THEREFORE, THERE IS NO CASE FOR LEVY OF PENALTY UNDER SEC.271(1)(B) OF THE ACT. IN THE PRESENT CASE, THE ASSESSEE SEEMS TO HAVE CO-OPERATE D WITH THE ASSESSMENT PROCEEDINGS BY RESPONDING TO THE NOTICES AND FILING INFORMATION CALLED FOR AND THE ASSESSMENT WAS COMPL ETED UNDER SEC.143(3) AND NOT SEC.144 OF THE ACT. THEREFORE, W E HOLD THAT THERE IS NO CASE FOR LEVY OF PENALTY UNDER SEC.271(1)(B) OF THE I.T. ACT THE ASSESSEES CASE. ITA 2104/MDS/2012 5 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. 8. ORDER PRONOUNCED ON FRIDAY, THE 8 TH DAY OF MARCH 2013, AT CHENNAI. SD/- SD/- ( N.S. SAINI ) (CHALLA N AGENDRA PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI, DATED : 08 TH MARCH 2013. JLS. COPY TO:- (1) APPELLANT (2) RESPONDENT (3) CIT-(A), (4) C.I.T., (5) D.R. (6) GUARD FILE