SHRI RAMANDEEP SINGH SANDHU, JAIPUR V. ITO, WARD-4(4), JAIPUR

ITA 218/JPR/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 8718 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 03-03-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C GUPTA
• Keywords: Salary income; Additional evidence; Reasonable cause; Condonation of delay
• Section: 69C; 142(1); 147; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BEN CHES A JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRA M SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 218/JP/2020 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2010-11 SH. RAMANDEEP SINGH SANDHU, 63, JAGDISH NAGAR, CENTUARY HOMES, MANSAROVAR, JAIPUR CUKE VS. ITO, WARD 4(4), JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AXPES8014M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI VIKASH JAIN (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI K. C. GUPTA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 21/07/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 22/07/2020 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-2, JAIPUR DATED 26.08.2019 CONFIRMING THE LE VY OF PENALTY U/S 271(1)(B) FOR A.Y. 2010-11. 2. AT THE OUTSET, THE LD. AR SUBMITTED THAT THERE I S A DELAY IN FILING THE PRESENT APPEAL AND AN AFFIDAVIT OF THE ASSESSEE ALONG WITH AN APPLICATION REQUESTING FOR CONDONATION OF DELAY HAS BEEN PLACED ON RECORD. IT WAS SUBMITTED BY THE LD AR THAT THE ASSE SSEE HAD LEFT INDIA WAY BACK IN YEAR 2010 AND IS CURRENTLY RESIDENT OF GERMANY. IT WAS SUBMITTED THAT WHEN HE HAD COME TO INDIA SUBSEQUENT LY IN THE MONTH ITA NO. 218/JP/2020 RAMANDEEP SINGH SANDHU, JAIPUR VS. ITO WARD 4(4), JAIPUR 2 OF FEBRUARY, 2020, HE CAME TO KNOW THAT THE ORDER H AS BEEN PASSED BY THE LD. CIT(A) CONFIRMING THE LEVY OF PENALTY U/S 2 71(1)(B) OF THE ACT. IT WAS ACCORDINGLY SUBMITTED THAT SINCE THE ASSESSEE W AS NOT PRESENT IN INDIA, HE COULD NOT TAKE THE NECESSARY STEPS IN TER MS OF FILING THE PRESENT APPEAL IN TIME. HOWEVER, THERE WAS NO MALA FIDE ON THE PART OF THE ASSESSEE AND AS SOON AS HE CAME TO KNOW ABOUT T HE IMPUGNED ORDER, HE REACHED OUT TO HIS TAX CONSULTANT AND FIL ED THE PRESENT APPEAL. IT WAS ACCORDINGLY REQUESTED THAT THE DELAY SO HAPP ENED IN FILING THE PRESENT APPEAL MAY BE CONDONED AND THE APPEAL MAY B E ADMITTED FOR ADJUDICATION ON MERITS. 3. PER CONTRA, THE LD. DR OPPOSED THE DELAY IN FIL ING THE PRESENT APPEAL. 4. AFTER HEARING BOTH THE PARTIES AND GOING THROUGH THE AFFIDAVIT PLACED ON RECORD, WE FIND THAT THE ASSESSEE HAS SHO WN A REASONABLE CAUSE FOR THE DELAY IN FILING IN THE PRESENT APPEAL AS HE WAS NOT PRESENT IN INDIA AND SUBSEQUENTLY, AS SOON AS HE BECAME AWA RE OF THE IMPUGNED ORDER, HE WAS DILIGENT ENOUGH AND TOOK NEC ESSARY STEPS IN REACHING OUT TO HIS COUNSEL AND HAS FILED THE PRESE NT APPEAL. IN THE RESULT, THE DELAY IS HEREBY CONDONED AND APPEAL IS ADMITTED FOR ADJUDICATION. 5. ON MERITS, WE FIND THAT THE SHOW CAUSE FOR LEVY OF PENALTY U/S 271(1)(B) OF THE ACT WAS ISSUED BY THE ASSESSING OF FICER ON 25.06.2018 FIXING THE DATE FOR HEARING ON 10.07.2018 AND ON TH E SAME DATE, THE PENALTY ORDER U/S 271(1)(B) OF THE ACT HAS BEEN PAS SED WITHOUT PROVIDING ANY OPPORTUNITY TO THE ASSESSEE. FURTHER, IT IS NOTED THAT THE ITA NO. 218/JP/2020 RAMANDEEP SINGH SANDHU, JAIPUR VS. ITO WARD 4(4), JAIPUR 3 PENALTY PROCEEDINGS U/S 271(1)(B) OF THE ACT WERE I NITIATED DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR FAILURE ON THE PART OF THE ASSESSEE TO COMPLY WITH NOTICE U/S 142(1) DATED 19. 07.2017, THE LD. CIT(A) HAS HOWEVER CONFIRMED THE LEVY OF PENALTY ST ATING THAT THE NOTICE DATED 12.06.2017 WAS NOT COMPLIED WITH. 6. FURTHER, THE LD. AR SUBMITTED THAT THE ASSESSEE LEFT INDIA WAY BACK IN YEAR 2010 HENCE, THE NOTICES SEND BY THE DE PARTMENT WERE NOT SERVED AND DELIVERED TO THE ASSESSEE AS NOBODY WAS RESIDING AT THE GIVEN ADDRESS. THE ASSESSEE CAME TO KNOW ABOUT THE ASSESSMENT ORDER WHEN THE ASSESSEES FATHER-IN-LAW VISITED HIS HOUSE AND HE FOUND THE COPY OF THE ASSESSMENT ORDER PASTED ON THE WALL OF THE HOUSE. IT WAS ACCORDINGLY SUBMITTED THAT SINCE THE ASSESSEE WAS N OT PRESENT IN INDIA AND THEREFORE, WAS NOT HAVING ANY KNOWLEDGE ABOUT T HE NOTICES AND THE PASSING OF THE ASSESSMENT ORDER, THERE WAS A REASON ABLE CAUSE FOR NON- COMPLIANCE TO THE SAID NOTICES. FURTHER, OUR REFERE NCE WAS DRAWN TO THE FINDINGS OF THE LD. CIT(A) IN THE QUANTUM PROCEEDIN GS WHEREIN SHE HAS ACKNOWLEDGED THE FACT THAT THE ASSESSEE COULD NOT R EPLY TO THE NOTICES SINCE HE WAS OUT OF INDIA AND THE RELEVANT FINDINGS OF THE LD CIT(A) READS AS UNDER:- 2.5 I HAVE PERUSED THE FACTS OF THE CASE, THE ASSE SSMENT ORDER, THE SUBMISSIONS OF THE APPELLANT AND REMAND REPORT ALONGWITH REJOINDER. IT IS SEEN THAT THE ASSESSING OFFICER MA DE ADDITION OF RS. 2,13,400/- UNDER SECTION 69C AS CREDIT CARD EXP ENSES AS UNEXPLAINED MADE OUT OF UNDISCLOSED SOURCES. AUTHOR IZED REPRESENTATIVE CONTENDED THAT WHEN NOTICES WERE SEN T DURING RE- ASSESSMENT PROCEEDINGS, ASSESSEE WAS OUT OF INDIA, SO ITA NO. 218/JP/2020 RAMANDEEP SINGH SANDHU, JAIPUR VS. ITO WARD 4(4), JAIPUR 4 COMPLIANCE WAS NOT MADE. THE IMMEDIATE SOURCE WAS O UT OF SALARY INCOME ACCORDING TO HIM FOR WHICH RETURN OF INCOME WAS DULY FILED UNDER SECTION 139(1). IN REMAND REPORT, ASSESSING OFFICER, AFTER VERIFICATION FOUND THE PAYMENT IN OR DER BY OBSERVING AS UNDER:- THE AR OF THE ASSESSEE SUBMITTED THE PROOF OF THE PAYMENT MADE BY THE ASSESSEE THROUGH CREDIT CARDS F ROM HIS SALARYS BANK ACCOUNT AND SAVING BANK ACCOUNT. I HAVE EXAMINED THE ISSUE OF THE CASE AND FOUND IN ORDER. 7. IT WAS FURTHER SUBMITTED THAT EVEN ASSESSMENT OR DER WAS PASSED UNDER SECTION 144 R/W 147 OF THE ACT, HOWEVER, SUBS EQUENTLY, THE LD CIT(A) HAS TAKEN COGNIZANCE OF THE FACT THAT SINCE THE ASSESSEE WAS NOT PRESENT IN INDIA, THE ADDITIONAL EVIDENCE WERE ALLO WED TO BE TAKEN ON RECORD AND AFTER SEEKING REMAND REPORT FROM THE AO WHEREIN THE AO FOUND THE EXPLANATION OF THE ASSESSEE AS ACCEPTABLE , THE ADDITION MADE WERE DELETED. IT WAS ACCORDINGLY SUBMITTED THAT WH ERE THE ASSESSEES EXPLANATION HAS BEEN FINALLY ACCEPTED BY THE ASSESS ING OFFICER AND THE LD CIT(A), THERE IS NO PREJUDICE WHICH IS CAUSED TO THE REVENUE BY NON- COMPLIANCE TO THE NOTICES AND IN SUCH CIRCUMSTANCES , THE PENALTY SO LEVIED MAY BE DIRECTED TO BE DELETED. 8. THE LD DR IS HEARD WHO HAS SUBMITTED THAT THERE IS NO INFIRMITY IN THE ORDER OF THE LOWER AUTHORITIES WHERE THE PENALT Y HAS BEEN LEVIED DUE TO NON-COMPLIANCE TO THE NOTICE ISSUED U/S 142( 1) OF THE ACT. HE ACCORDINGLY SUPPORTED THE ORDER OF THE LOWER AUTHOR ITIES. ITA NO. 218/JP/2020 RAMANDEEP SINGH SANDHU, JAIPUR VS. ITO WARD 4(4), JAIPUR 5 9. AFTER HEARING BOTH THE PARTIES AND GOING THROUGH THE MATERIAL AVAILABLE ON RECORD, WE FIND THAT WHERE THE ASSESSE E HAD ALREADY LEFT THE COUNTRY WAY BACK IN YEAR 2010 AND WHEN THE NOTI CE WAS ISSUED IN JULY 2017, THERE WAS NO ONE AVAILABLE TO RECEIVE TH E NOTICE AT THE LAST KNOWN ADDRESS, THE VERY SERVICE OF THE NOTICE ISSUE D U/S 142(1) IS IN DOUBT. THE LD CIT(A) HAS ALSO RECORDED A SIMILAR F INDING AND THE ASSESSING OFFICER IN HIS REMAND REPORT DATED 14.06. 2019 HAS ALSO TAKEN NOTE OF THE FACT THAT THE ASSESSEE WAS OUT OF INDIA SINCE 2010 AS EVIDENCED BY THE ASSESSEES PASSPORT. THEREFORE, IN SUCH PECULIAR FACTS AND CIRCUMSTANCES WHERE THE ASSESSEE WAS OUT OF THE COUNTRY AND HE HAD NO KNOWLEDGE OF THE SUBJECT NOTICE AND THERE IS NOTHING ON RECORD THAT THE NOTICE WAS DULY SERVED ON THE ASSESSEE, WE FIND THAT THE ASSESSEES EXPLANATION THAT HE COULD NOT HAVE COMPL IED WITH THE NOTICE IS FOUND TO BE REASONABLE AND THE PENALTY SO LEVIED U/S 271(1)(B) OF THE ACT IS HEREBY DIRECTED TO BE DELETED. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22/07/2020. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 22/07/2020 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- RAMANDEEP SINGH SANDHU, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD 4(4), JAIPUR 3. VK;DJ VK;QDR@ CIT ITA NO. 218/JP/2020 RAMANDEEP SINGH SANDHU, JAIPUR VS. ITO WARD 4(4), JAIPUR 6 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 218/JP/2020} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR