Shri Prashant Kumar Gupta, Lucknow V. Deputy Commissioner of Income Tax, Range-VI, Lucknow

ITA 225/LKW/2018

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 8238 (ITAT-LUCKNOW)
• Duration Of Justice: 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: misc
• Appeal Filed On: 21-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 142(1); 144

Judgement Text

I.T.A. NO.225/LKW/2018 ASSESSMENT YEAR:2006-07 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH SMC, LUCKNOW BEFORE SHRI T. S. KAPOOR, ACCOUNTANT MEMBER ITA NO.225/LKW/2018 ASSESSMENT YEAR:2006-07 SHRI PRASHANT KUMAR GUPTA, 293/297, OLD HAIDERGANJ, LUCKNOW. VS. DY.C.I.T., RANGE-VI, LUCKNOW. (APPELLANT) (RESPONDENT) O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LEARNED CIT(A)-2, LUCKNOW DATED 20/12/2017 PERTAINING TO AS SESSMENT YEAR 2006- 07. 2. THE ONLY GRIEVANCE RAISED BY THE ASSESSEE IS THE ACTION OF LEARNED CIT(A) BY WHICH HE HAS CONFIRMED THE PENALTY OF RS. 10,000/- WHICH THE ASSESSING OFFICER HAD IMPOSED U/S 271(1)(B) OF THE I.T. ACT. 3. AT THE OUTSET, LEARNED A. R. INVITED OUR ATTENTI ON TO THE PROVISIONS OF SECTION 271(1)(B) OF THE ACT AND SUBMITTED THAT PEN ALTY UNDER THIS SECTION CAN BE IMPOSED ONLY IF THE ASSESSEE FAILS TO COMPLY WITH A NOTICE ISSUED UNDER SUB SECTION (2) OF SECTION 115WD OR UNDER SUB SECTION (2) OF SECTION 115WE OR UNDER SUB SECTION (1) OF SECTION 142 OR SU B SECTION (2) OF SECTION APPELLANT BY SHRI SHAILENDRA MISHRA, ADVOCATE RESPONDENT BY SHRI JAI NATH VERMA, D.R. DATE OF HEARING 24/09/2018 DATE OF PRONOUNCEMENT 28/09/2018 I.T.A. NO.225/LKW/2018 ASSESSMENT YEAR:2006-07 2 143 OF THE ACT. IT WAS SUBMITTED THAT IN THE PRESE NT CASE NO NOTICE UNDER ANY OF THE ABOVE SECTIONS WAS ISSUED BY THE ASSESSI NG OFFICER WHICH WAS ALSO APPARENT FROM THE ORDER OF ASSESSMENT WHEREIN THE ASSESSING OFFICER DOES NOT TALK OF ANY NOTICE ISSUED UNDER THE ABOVE SAID PROVISIONS. IT WAS SUBMITTED THAT THE ASSESSING OFFICER DURING THE ASS ESSMENT PROCEEDINGS BEFORE LEARNED CIT(A) HAD SUBMITTED THAT ASSESSEE W AS ISSUED NOTICE U/S 142(1) OF THE ACT DATED 28/11/2013 BUT IN FACT NO S UCH NOTICE WAS ISSUED UNDER THIS SECTION AS WAS ALSO APPARENT FROM THE PE NALTY ORDER U/S 271(1)(B) OF THE ACT WHERE THE ASSESSING OFFICER HA D MENTIONED THAT VIDE OFFICE LETTER DATED 22/08/2013 THE ASSESSEE WAS SHO W CAUSED AS TO WHY THE ASSESSMENT BE NOT COMPLETED EX-PARTE ON THE BASIS O F INFORMATION ON RECORD. 4. LEARNED D. R., ON THE OTHER HAND, SUPPORTED THE ORDERS OF AUTHORITIES BELOW. 5. I HAVE HEARD THE RIVAL PARTIES AND HAVE GONE THR OUGH THE MATERIAL PLACED ON RECORD. I FIND THAT LEARNED A. R. HAS DI SPUTED THE NOTICE DATED 28/11/2013 BY THE ASSESSING OFFICER U/S 142(1) OF T HE ACT. I FIND THAT IT IS CORRECT THAT THERE IS NO MENTION OF ANY SUCH NOTICE IN THE ASSESSMENT ORDER OR IN THE PENALTY ORDER. ASSESSING OFFICER DURING T HE REMAND PROCEEDINGS IN CONSEQUENT OF APPEAL BEFORE LEARNED CIT(A) HAD SUBM ITTED THAT ASSESSEE WAS ISSUED NOTICE U/S 142(1) OF THE ACT DATED 28/11 /2013 BUT IN FACT NO SUCH NOTICE WAS ISSUED UNDER THIS SECTION AS IS ALS O APPARENT FROM THE PENALTY ORDER U/S 271(1)(B) OF THE ACT WHERE THE AS SESSING OFFICER HAD MENTIONED THAT VIDE OFFICE LETTER DATED 22/08/2013 THE ASSESSEE WAS SHOW CAUSED AS TO WHY THE ASSESSMENT BE NOT COMPLETED EX -PARTE ON THE BASIS OF INFORMATION ON RECORD. THE LETTER BY ASSESSING OFF ICER DATED 22/08/2013 CLEARLY STATES THAT ASSESSMENT WILL BE COMPLETED EX -PARTE AND IN THE NEXT I.T.A. NO.225/LKW/2018 ASSESSMENT YEAR:2006-07 3 PARA THE ASSESSING OFFICER COMPLETES ASSESSMENT U/S 144 OF THE ACT. NOWHERE IN THE ASSESSMENT ORDER OR PENALTY ORDER TH E REFERENCE TO NOTICE DATED 28/11/2013 HAS BEEN MENTIONED. THEREFORE, I DO NOT SEE ANY REASON TO UPHOLD THE ORDER OF CIT(A). I, THEREFORE, REVE RSE THE ORDER OF CIT(A) BY DELETING THE PENALTY AND ALLOW THE APPEAL FILED BY THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 28/09 /2018) SD/. ( T. S. KAPOOR ) ACCOUNTANT MEMBER DATED:28/09/2018 *SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW