Shri Sanjay V.Karlukar, Ahmedabad V. The Income tax Officer,Ward-12(3), Ahmedabad

ITA 2117/AHD/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94298 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 19-08-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 25-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA SINGH
• Assessee Lawyers: G A MEHTA
• Keywords: Non compliance
• Section: 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, A HMEDABAD (BEFORE SHRI ANIL CHATURVEDI, A.M. & SHRI KUL BHARA T, J.M.) I.T. A. NO . 2117 /AHD/2012 (ASSESSMENT YEAR: 2008-09) SHRI SANJAY VINAYAKRAO KURLUKAR 7, PRABHATKUNJ CHIEF HOUSING SOCIETY, UTTAMNAGAR, MANINAGAR, AHMEDABAD V/S THE I.T.O., WARD-12(3), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AXZPK6509L APPELLANT BY : SHRI G.A. MEHTA, A.R. RESPONDENT BY : SHRI NARENDRA SINGH, SR. D.R . ( )/ORDER DATE OF HEARING : 19-08-201 5 DATE OF PRONOUNCEMENT : 28-08-2015 PER ANIL CHATURVEDI, ACCOUNTANT MEMBER 1. THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE OR DER OF CIT(A)-XX, AHMEDABAD DATED 24.07.2012 FOR A.Y. 2008-09. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 3. ASSESSEE IS AN INDIVIDUAL WHO FILED HIS RETURN OF I NCOME FOR A.Y. 2008-09 ON 24.09.2008 DECLARING TOTAL INCOME OF RS. 1,09,482/- . THE CASE WAS SELECTED ITA NO2117/A HD/2012 . A.Y. 2008-09 2 FOR SCRUTINY AND THEREAFTER NOTICE U/S. 143(2) AND 142(1) WERE ISSUED, A.O HAS NOTED THAT ASSESSEE DID NOT COMPLY AND RESPONDE D TO THE AFORESAID NOTICES. HE ACCORDINGLY FRAMED ASSESSMENT U/S. 144 VIDE ORDER DATED 20.12.2010 AND THE TOTAL INCOME WAS DETERMINED AT R S. 1,59,619/-. A.O THEREAFTER VIDE ORDER DATED 10.06.2011 CONCLUDED TH AT THE ASSESSEE HAD FAILED TO COMPLY WITH VARIOUS NOTICES/LETTERS ISSUE D BY THE A.O AND HAD THEREFORE COMMITTED DEFAULT U/S. 271(1)(B) OF THE A CT AND ACCORDINGLY LEVIED PENALTY OF RS. 10,000/- U/S. 271(1)(B) OF THE ACT. AGGRIEVED BY THE ORDER OF A.O., ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) WHO VIDE ORDER DATED 24.07.2012) CONFIRMED THE PENALTY LEVIED BY A.O. AG GRIEVED BY THE AFORESAID ORDER OF LD. CIT(A), ASSESSEE IS NOW IN A PPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUND:- 1. WHETHER CIT(A)-XX WAS RIGHT IN CONFIRMING PENALTY U /S. 271(1)(B) RS. 10,000/-. 2. WHETHER CIT(A) WAS RIGHT IN IGNORING THE FACTS OF A TTENDANCE OF PETITIONER WAS NOT RECORD BY ITO IN HIS ORDER SHEET WHICH WAS MENTIONED IN PAGE NO. 4 & 5 OR ORDER DATED 07.02.2012. 3. WHETHER CIT(A) WAS RIGHT IN SUSTAINING PENALTY, IG NORING PERSONAL ATTENDANCE ON VARIOUS DATES AND LETTER TO ITO DATED 13.12.2010 SUBMITTED TO ITO WITH COPY OF ELECTRIC BILLS AND CO PY OF BOOKS A/C. 4. BEFORE US, LD. A.R. SUBMITTED THAT THE ONLY EFFECTI VE GROUND IS WITH RESPECT TO LEVY OF PENALTY U/S. 271(1)(B) OF THE ACT. 5. BEFORE US, LD. A.R. SUBMITTED THAT ASSESSEE HAD IND EED PERSONALLY ATTENDED BEFORE A.O AND THE AFORESAID FACT WAS ALSO BROUGHT TO THE NOTICE OF LD. ITA NO2117/A HD/2012 . A.Y. 2008-09 3 CIT(A). HE FURTHER SUBMITTED THAT THE LAST NOTICE W AS ISSUED BY A.O ON 6.12.2010 AND IT WAS SERVED ON 7.12.2010 WHEREBY TH E DATE OF HEARING WAS FIXED ON 9.12.2010 AND IN RESPONSE TO WHICH, ASSESS EE FILED LETTER DATED 13.12.2010 WITH THE DETAILS OF EXPENSES. A.O HOWEVE R IGNORED THE SUBMISSION AND PASSED AN EX-PARTE ORDER U/S. 144 ON 20.12.2010. HE FURTHER SUBMITTED THAT IN THE QUANTUM PROCEEDINGS, LD. CIT( A) AFTER TAKING INTO ACCOUNT, THE SUBMISSION OF THE ASSESSEE AND THE DET AILS FILED BY THE ASSESSEE BEFORE A.O THAT WERE IGNORED BY A.O GRANTED RELIEF TO THE ASSESSEE. HE THEREFORE SUBMITTED THAT IN SUCH CIRCUMSTANCES THER E WAS NO JUSTIFICATION FOR LEVY OF PENALTY U/S. 271(1)(B) OF THE ACT. THE LD. D.R. ON THE OTHER HAND SUPPORTED THE ORDER OF A.O. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IN THE PRESENT CASE PENALTY U/S. 271(1)(B) OF THE ACT HAS BEEN LEVIED FOR NON COMPLIANCE OF THE VARIOUS NOTICES ISSUED BY A.O. BE FORE US, LD. A.R. HAS SUBMITTED THAT IT HAD FILED THE DETAILS BEFORE A.O BUT THE SAME WERE IGNORED BY A.O WHILE FRAMING THE ASSESSMENT AND BASED ON TH E SAME DETAILS WHICH WERE FILED BY ASSESSEE BEFORE A.O, RELIEF WAS GRANT ED BY LD. CIT(A). THE AFORESAID SUBMISSION OF ASSESSEE HAVE NOT BEEN CONT ROVERTED BY REVENUE. WE FURTHER FIND THAT LEVY OF PENALTY U/S. 271(1)(B) IS DISCRETIONARY AND IS NOT MANDATORY. CONSIDERING THE TOTALITY OF THE FACTS, W E ARE OF THE VIEW THAT IN THE PRESENT CASE NO PENALTY U/S. 271(1)(B) BE LEVIE D. WE ACCORDINGLY DIRECT ITS DELETION. ITA NO2117/A HD/2012 . A.Y. 2008-09 4 7. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 28- 08 - 2015 . 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,AHM EDABAD