Kalana N.Vyas, Ahmedabad V. The Dy.CIT.,Circle-11, Ahmedabad

ITA 2117/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 89674 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 9 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 22-06-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 26-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Keywords: Opportunity of being heard; Reasonable cause; Non compliance
• Section: 143(3); 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD (BEFORE SHRI ANIL CHATURVEDI, A.M. & SHRI KUL BHARA T, J.M.) I.T. A. NO. 2117/AHD/2011 (ASSESSM ENT YEAR: 2008-09) KALANA N. VYAS 7, VIVEKANAND SOCIETY PALDI, AHMEDABAD 380007 V/S DY. C.I.T., CIRCLE-11 AHMEDABAD (APPELLANT) (RESPONDENT) PAN: ABRPV3107B APPELLANT BY : NONE RESPONDENT BY : SHRI B.L. YADAV, SR. D.R. ( )/ ORDER DATE OF HEARING : 22-06-201 5 DATE OF PRONOUNCEMENT : 25-06-2015 PER SHRI ANIL CHATURVEDI,A.M. 1. THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE OR DER OF CIT(A)XVI, AHMEDABAD DATED 22.07.2011 FOR A.Y. 2008-09. 2. IN THIS CASE, NONE APPEARED ON BEHALF OF ASSESSEE B UT HOWEVER WRITTEN SUBMISSIONS WERE FILED BY THE ASSESSEE. WE THEREFOR E PROCEED TO DECIDE THE APPEAL, EX PARTE QUA THE ASSESSEE ON THE BASIS OF M ATERIAL ON RECORD AND WRITTEN SUBMISSIONS. ITA NO 2117 /AHD/2011 . A.Y. 2008-09 . 2 3. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 4. ASSESSEE IS AN INDIVIDUAL HAVING INCOME FROM CAPITA L GAINS AND OTHER SOURCES. ASSESSEE FILED HER RETURN OF INCOME FOR A. Y. 2008-09 ON 29.08.2008 DECLARING TOTAL INCOME OF RS. 14,76,900/-. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER THE ASSESSMENT WAS FRAMED UNDER SECT ION 143(3) VIDE ORDER DATED 23.11.2010 AND THE TOTAL INCOME AS RETURNED B Y THE ASSESSEE WAS ACCEPTED BY THE A.O. A.O HOWEVER NOTICED THAT THOUG H THE NOTICES ISSUED U/S. 143(2) AND 142(1) TO THE ASSESSEE WAS SERVED U PON ASSESSEE BUT NEITHER ANYBODY ATTENDED NOR FURNISHED THE REQUIRED INFORMA TION. A.O THEREFORE, VIDE ORDER DATED 4 TH NOVEMBER, 2010 IMPOSED PENALTY OF RS. 20,000/- U/S . 271(1)(B) FOR NON COMPLIANCE OF THE NOTICES ISSUED U/S. 143(2) AND 142(1). AGGRIEVED BY THE ORDER OF A.O., ASSESSEE CARRIED TH E MATTER BEFORE LD. CIT(A) WHO CONFIRMED THE ORDER OF A.O BY HOLDING AS UNDER:- 2.2 I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF T HE LD. COUNSEL AND THE FACTS OF THE CASE. A SHOW CAUSE NOTICE FOR IMPOSITI ON OF PENALTY WAS ISSUED ON 28-10-2010 AND THE SAME WAS SERVED UPON THE APPE LLANT ON THE SAME DATE. THE SHOW CAUSE NOTICE WAS TO BE COMPLIED WITH ON 02-11-2010. HOWEVER, THE REPLY TO SUCH SHOW CAUSE NOTICE WAS FI LED BY THE ASSESSEE ON 18-11-2010 WHEREAS THE PENALTY WAS LEVIED ON 04-11- 2010. IT IS CORRECT THAT NO PENALTY CAN BE LEVIED WITHOUT GIVING A REASONABL E OPPORTUNITY OF BEING HEARD BUT IN THIS CASE EVEN AFTER SERVICE OF SHOW C AUSE NOTICE FOR LEVYING THE PENALTY, THE ASSESSEE HAS NOT COMPLIED WITH THE TER MS OF THE SHOW CAUSE NOTICE ON OR BEFORE 02-11-2010, THE APPELLANT HAD T HUS NOT ESTABLISHED BEFORE THE ASSESSING OFFICER THAT SHE WAS PREVENTED BY ANY REASONABLE CAUSE FOR THE DEFAULT OF NON-COMPLIANCE OF NOTICES SO ISS UED AND SERVED UPON HER. THE ASSESSING OFFICER WAS THUS JUSTIFIED IN LEVYING THE PENALTY OF RS. ITA NO 2117 /AHD/2011 . A.Y. 2008-09 . 3 20.000/- FOR TWO DEFAULTS U/S. 271(1)( B) OF THE AC T. THE SAME IS HEREBY CONFIRMED. 5. AGGRIEVED BY THE AFORESAID ORDER OF LD. CIT(A), ASS ESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUND:- 1. THE LD. CIT(A)-XVI, AHMEDABAD HAS ERRED IN CONFIRMI NG PENALTY OF RS. 20,000/- U/S. 271(1)(B) OF THE INCOME TAX ACT IS NO T CORRECT. 6. BEFORE US, LD. D.R. SUPPORTED THE ORDER OF A.O AND LD. CIT(A). 7. WE HAVE HEARD THE LD. D.R. AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESPECT TO LEVY OF PENALTY U/S. 271(1)(B) OF THE ACT. IT IS AN UNDISPUTED FACT THAT A.O HAD ISSUED NOTICES U /S. 143(2) & 142(1) TO THE ASSESSEE AND THE NOTICES REMAINED UNCOMPLIED BY ASS ESSEE. IT IS ALSO A FACT THAT IN THE PRESENT CASE, THE ASSESSMENT ORDER HAS BEEN FRAMED BY THE A.O U/S. 143(3) AND NOT U/S. 144 OF THE ACT. WE FIND TH AT THE CO-ORDINATE BENCH IN THE CASE OF PRIYANK SHAH VS. ITO (ITA NO. 237/AH D/2013) BY FOLLOWING THE ORDER OF TRIBUNAL IN THE CASE OF KAMDHENU MOTOR S PVT. LTD. V. ACIT (ITA NO. 132/AHD/2006) HAS HELD THAT WHEN ASSESSMEN T ORDER HAS BEEN PASSED U/S. 143(3) AND NOT U/S. 144, THEN NON COMPL IANCE OF NOTICE IS DEEMED TO HAVE BEEN WAIVED AND THEREFORE PENALTIES WERE CA NCELLED. RESPECTFULLY FOLLOWING THE AFORESAID DECISION OF TRIBUNAL AND IN THE ABSENCE OF ANY CONTRARY BINDING DECISION, WE ARE OF THE VIEW THAT THE ISSUE IN THE PRESENT CASE IS COVERED BY THE DECISION CITED HEREINABOVE A ND THEREFORE NO PENALTY IS CALLED FOR. WE THEREFORE DIRECT THE DELETION OF PEN ALTY. 8. THUS THE GROUND OF ASSESSEE IS ALLOWED. ITA NO 2117 /AHD/2011 . A.Y. 2008-09 . 4 9. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 25 - 06 - 201 5. SD/- SD/- (KUL BHARAT) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AH MEDABAD