Sri Kamal Bhandari, Kolkata V. ITO, Ward-23(2), Kolkata, Kolkata

ITA 250/KOL/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4118 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-12-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 27-10-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 12-02-2014
• Court: TRIBUNAL
• Keywords: Salary income; Onus to prove
• Section: 142(1)

Judgement Text

I.T.A. NO. 250/KOL./2014 ASSESSMENT YEAR: 2006-2007 PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI N.V. VASUDEVAN, JUDICIAL MEMBER I.T.A. NO. 250/KOL/ 2014 ASSESSMENT YEAR: 2006-2007 SHRI KAMAL BHANDARI,............................... ...................................APPELLANT 16, N.S. ROAD, 2 ND FLOOR, KOLKATA-700 001 [PAN: ADJPB 0881 E] -VS.- INCOME TAX OFFICER,................................ ....................................RESPONDENT WARD-23(2), KOLKATA APPEARANCES BY: SHRI SUNIL SURANA, A.R., FOR THE ASSESSEE SHRI RAJAT KUMAR KUREEL JCIT, D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : OCTOBER 27, 2016 DATE OF PRONOUNCING THE ORDER : DECEMBER 02, 2016 O R D E R PER SHRI P.M. JAGTAP, A.M .: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-XIV, KOLKATA D ATED 06.11.2013, WHEREBY HE CONFIRMED THE PENALTY OF RS.30,000/- IMP OSED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(B) OF THE IN COME TAX ACT, 1961. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L, WHO DERIVES INCOME FROM SALARY AND OTHER SOURCES. DURING THE CO URSE OF ASSESSMENT PROCEEDINGS, HE FAILED TO COMPLY WITH THE NOTICES I SSUED BY THE ASSESSING OFFICER UNDER SECTION 143(2) ON 21.06.2007 AND 01.0 2.2008 AND UNDER SECTION 142(1) ON 18.01.2008. THE ASSESSING OFFICER , THEREFORE, INITIATED PENALTY PROCEEDINGS UNDER SECTION 271(1)(B) FOR THE SAID NON-COMPLIANCE ON THE PART OF THE ASSESSEE AND SINCE THE EXPLANATI ON OFFERED BY THE ASSESSEE IN RESPONSE TO THE SHOW-CAUSE NOTICE ISSUE D DURING THE COURSE OF THE SAID PROCEEDINGS WAS NOT FOUND ACCEPTABLE BY HI M, THE ASSESSING I.T.A. NO. 250/KOL./2014 ASSESSMENT YEAR: 2006-2007 PAGE 2 OF 5 OFFICER PROCEEDED TO IMPOSE PENALTY OF RS.30,000/- (RS.10,000/- FOR EACH DEFAULT) UNDER SECTION 271(1)(B) OF THE ACT. 3. THE PENALTY IMPOSED BY THE ASSESSING OFFICER UND ER SECTION 271(1)(B) WAS CHALLENGED BY THE ASSESSEE IN THE APP EAL FILED BEFORE THE LD. CIT(APPEALS) AND THE VARIOUS SUBMISSIONS WERE R AISED BY THE ASSESSEE DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE T HE LD. CIT(APPEALS), WHICH, AS SUMMARISED IN HIS IMPUGNED ORDER, WERE AS UNDER:- THE APPELLANT HAS DISOWNED THE FACT 'THAT HE HAS N EVER COMPLIED WITH THE STATUTORY NOTICES ISSUED BY THE A .O. U/S. 143(2), 142(1) OF THE ACT. THE APPELLANT HAS FURTHE R ADMITTED BEFORE ME DURING THE COURSE OF APPELLATE PROCEEDINGS THE FACT THAT IN SOME INSTANCES, THERE WAS NO SPECIFIC MENTION OF THE DATE OF HEARING IN THE NOTI CES ISSUED BY THE A.O., E.G. NOTICE DATED 16/01/2008. IN ADDIT ION TO THIS, HE HAS ALSO POINTED OUT TO ME THAT ON THE FIR ST OCCASION, I.E., ON 26:07.2007, (DATE OF ISSUE OF NOTICE U/S. 143(2) WAS 21/06/207), SRI PRADIP KUMAR JAIN, THE OFFICE ASSIS TANT OF THE LEARNED A/R OF THE ASSESSEE, SRI N.K. GOYAL ATT ENDED WITH AN AUTHORIZATION LETTER BUT HIS HEARING WAS NOT REC ORDED BY THE A.O STATING THAT IT WILL BE RECORDED WHEN MR. G OYAL COMES. THE APPELLANT FURTHER AFFIRMED BEFORE ME DUR ING THE ABOVE SAID PROCEEDINGS THE FACT THAT THE SECOND NOT ICE ISSUED BY THE A.O. ON 16/01/2008 WAS NEVER RECEIVED BY HIM AND AS FOR THE THIRD NOTICE OR OCCASION, THE APPELL ANT HAS ADMITTED THAT ON THIS OCCASION, THE HEARING TOOK PL ACE, MR. GOYAL ATTENDED THE CASE BUT THE LEARNED A.O KEPT IN SISTING FOR THE ORIGINAL ORDER OF THE HON'BLE HIGH COURT, N O PAPER COULD BE FURNISHED AND HENCE HEARING WAS NOT RECORD ED BY THE A.O. MOREOVER, THE APPELLANT HAS SUBMITTED BEFO RE ME THAT NON-COMPLIANCE ON 24/06/2009, THE ASSESSEE'S ACCOUNTANT, SRI S.K. SAHAL, MET THE LEARNED A.O AND REQUESTED FOR SOME TIME AND FINALLY A LETTER WAS AL SO FILED WHICH CAN BE VERIFIED FROM THE FILE. 4. THE ABOVE SUBMISSIONS MADE BY THE ASSESSEE DID N OT FIND FAVOUR WITH THE LD. CIT(APPEALS), WHO PROCEEDED TO CONFIRM THE PENALTY IMPOSED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(B) FO R THE FOLLOWING REASONS GIVEN IN PARAGRAPH NO. 7 OF HIS IMPUGNED OR DER:- 7.0. (A) I HAVE CAREFULLY PERUSED THE IMPUGNED OR DER OF PENALTY PASSED BY THE A.O, I.E., I.T.O., WARD-23(2) , KOLKATA U/S. 271(1)(B) OF THE ACT AND ALSO EXAMINED THE WRI TTEN I.T.A. NO. 250/KOL./2014 ASSESSMENT YEAR: 2006-2007 PAGE 3 OF 5 SUBMISSION FILED BY THE APPELLANT. DURING THE APPEL LATE PROCEEDINGS, THE APPELLANT HAS FILED BEFORE ME WRIT TEN SUBMISSION, COPY OF ASSESSMENT ORDER PASSED U/S. 14 3(3) BY THE THEN AO, I.E., I.T. 0, WARD-23(1), KOLKATA, DAT ED 26/12/2008, VAKALATNAMA, ETC. ON GOING THROUGH THE SUBMISSION FILED BY THE APPELLANT, I HAVE NOTICED T HAT WHAT THE A.O HAS CONTENDED IN HIS ORDER OF PENALTY PASSE D U/S. 271(1)(B) OF THE ACT IS QUITE CONTRADICTORY TO THAT OF THE APPELLANT. IN MY VIEW, I HOLD THAT THE AO HAS PASSE D THE ORDER OF PENALTY ABSOLUTELY DEPENDING ON NATURAL JU STICE AND AT THE SAME TIME BESTOWING FULL REGARD TO THE A CTUAL FACTS AND CIRCUMSTANCES OF THE INSTANT CASE OF THE APPELLANT RAISING THEREBY NO SUSPICION OVER IMPOSITION OF PEN ALTY AMOUNTING TO RS.30,000/-. I HAVE ALSO NOTICED THAT THE A.O WAS QUITE INQUISITIVE WHILE ISSUING THE STATUTORY N OTICES U/S. 143(2) AND 142(1) OF THE ACT; THE A.O WAS VERY MUCH ATTENTIVE AND EMPHATIC IN HIS ACTION OF ISSUING SUC H NOTICES OF THE ACT TO THE APPELLANT THAT IN SOME SUCH ISSUE D NOTICES, THERE WAS NO SPECIFIC MENTION OF THE DATE OF HEARIN G, AS STATED BY THE APPELLANT IN HIS WRITTEN SUBMISSION F ILED DURING THE APPELLATE PROCEEDINGS, IS ABSOLUTELY ERR ONEOUS AND LIABLE TO BE IGNORED. IN MY CONSIDERED VIEW, TH E ACTION OF THE A.O OF IMPOSING PENALTY AMOUNTING TO RS. 30, 000/- FOR THREE CONSECUTIVE FAILURES ON THE PART OF THE APPEL LANT TO COMPLY WITH THE STATUTORY NOTICES ISSUED BY HIM TO THE APPELLANT AS DISTINCTLY EVIDENT IN THE ORDER OF PEN ALTY ITSELF, IS FIRMLY BASED ON A JUST FOOTING AND WHICH CAN BE ENTIRELY SUPPORTED UNDER THE LAW. BESIDES THAT, AS THE APPEL LANT HAS CONTENDED BEFORE ME THAT THE LEARNED A.O HAS NOT COMPLAINED THE FACT THAT BECAUSE OF NON-COMPLIANCE ON THE PART OF THE APPELLANT WITH THE NOTICES ISSUED BY HI M (AO), HIS WORK HAS SUFFERED OR SOME DETAILS HAVE NOT BEEN FILED AT ALL IS MERELY AN EYE-WASH AT THE BACK OF THE APPELL ANT HIMSELF. FURTHER, THE APPELLANT HAS HIMSELF ARGUED AS APPARENT FROM HIS WRITTEN SUBMISSION FILED DURING T HE APPELLATE PROCEEDINGS THAT THEREFORE, IT CAN EASILY BE ACCEPTED THAT THE APPELLANT/ASSESSEE HAS FILED ALL THE REQUISITE DETAILS AND COMPLIANCE WAS DULY MADE BY H IM IS ALSO ACCEPTED AS A MERE ABERRATION OF THE ACTUAL FA CTS OF THE CASE BY HIMSELF (APPELLANT) UNDER INSTANT APPEAL. (B) CONSIDERING THE VIEWS/FINDINGS ABOVE, I AM OF T HE OPINION THAT THE IMPOSITION OF PENALTY AMOUNTING TO RS. 30,000/- IMPOSED U/S. 271(1)(B) OF THE I.T. ACT, 19 61 BY THE A.O IS ENTIRELY ACCEPTABLE IN THE EYES OF LAW. THE DEFAULT ON THE PART OF THE ASSESSEE TO COMPLY WITH THE STATUTO RY NOTICES ISSUED U/S. 143(2) AND 142(1) OF THE ACT ON THREE CONSECUTIVE OCCASIONS AS RECORDED BY THE A.O. IN HI S IMPUGNED ORDER OF PENALTY, MAY BE PLACED SOLELY UPO N THE I.T.A. NO. 250/KOL./2014 ASSESSMENT YEAR: 2006-2007 PAGE 4 OF 5 ASSESSEE; THE ASSESSEE HAS VISIBLY FAILED TO DISCHA RGE HIS SHEER ONUS TO PROVE THE GENUINENESS AND CREDITWORTH INESS OF WHAT THE A.O. WANTED FROM HIM DURING THE COURSE OF HEARING. THE LAPSE LIES WHOLLY UPON THE APPELLANT HIMSELF IN ALL THE PHASES OF FRAMING THE ORDER OF PENALTY BY THE A,O, U/S. 271(1)(B) OF THE ACT. TO ME, THE A.O IS ABSOLUTELY IMPECCABLE UNDER THE LAW. I, THEREFORE, HAVE NO HESITATION TO CONFIRM THE PENALTY IMPOSED U/S. 271(L)(B) OF THE I.T. ACT, 1961, AMOUNTING TO RS.30,000/- IN THE INSTANT CASE OF THE APPELLANT. ACCORDINGLY, THE GROUND NO. 2 OF THE INS TANT APPEAL STANDS DISMISSED. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 5. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE SUBMISSI ON MADE BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS), WHICH HAS BEE N REITERATED BY THE LD. COUNSEL FOR THE ASSESSEE AT THE TIME OF HEARING BEF ORE US, CLEARLY SHOWS THAT NON-COMPLIANCE TO THE RELEVANT THREE NOTICES I SSUED BY THE ASSESSING OFFICER WAS DULY EXPLAINED BY THE ASSESSEE. AS EXPL AINED BY THE ASSESSEE, SHRI PRADIP KUMAR JAIN, THE OFFICE ASSISTANT OF THE A.R. OF THE ASSESSEE SHRI N.K. GOYAL HAD APPEARED BEFORE THE ASSESSING O FFICER ON 26.07.2007 IN RESPONSE TO THE NOTICE DATED 21.06.2007, BUT THE HEARING ON THAT DATE WAS NOT RECORDED BY THE ASSESSING OFFICER FOR WANT OF APPEARANCE OF SHRI GOYAL HIMSELF. AS FURTHER EXPLAINED BY THE ASSESSEE , THE SECOND NOTICE ISSUED BY THE ASSESSING OFFICER ON 18.01.2008 WAS N EVER RECEIVED BY HIM AND IN THE ABSENCE OF THE SAME, HE COULD NOT COMPLY WITH THE SAID NOTICE. AS REGARDS THE THIRD NOTICE DATED 01.02.2008 ISSUED BY THE ASSESSING OFFICER, IT WAS EXPLAINED BY THE ASSESSEE THAT THE DATE OF HEARING WAS NOT MENTIONED IN THE SAID NOTICE AND HE, THEREFORE, COU LD NOT COMPLY WITH THE SAME. KEEPING IN VIEW THESE REASONS GIVEN BY THE AS SESSEE FOR HIS NON- COMPLIANCE TO THE RELEVANT THREE NOTICES, WHICH HAV E NOT BEEN REBUTTED OR CONTROVERTED EITHER BY THE AUTHORITIES BELOW OR EVE N BY THE LD. D.R. BY BRINGING ANY RELEVANT MATERIAL ON RECORD, WE ARE OF THE VIEW THAT THE NON- COMPLIANCE ON THE PART OF THE ASSESSEE TO THE RELEV ANT THREE NOTICES ISSUED BY THE ASSESSING OFFICER WAS FOR SUFFICIENT CAUSE AND IT WAS NOT A I.T.A. NO. 250/KOL./2014 ASSESSMENT YEAR: 2006-2007 PAGE 5 OF 5 FIT CASE TO IMPOSE PENALTY UNDER SECTION 271(1)(B). IN THAT VIEW OF THE MATTER, WE CANCEL THE PENALTY IMPOSED BY THE ASSESS ING OFFICER UNDER SECTION 271(1)(B) AND CONFIRMED BY THE LD. CIT(APPE ALS) AND ALLOW THIS APPEAL OF THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON DECEMBER 02, 2016. SD/- SD/- (N.V. VASUDEVAN) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT ME MBER KOLKATA, THE 2 ND DAY OF DECEMBER, 2016 COPIES TO : (1) SHRI KAMAL BHANDARI, C/O. SHRI N.K. GOYAL, 2 ND FLOOR, KOLKATA-700 001 (2) INCOME TAX OFFICER, WARD-23(2), KOLKATA (3) COMMISSIONER OF INCOME TAX(APPEALS)-XIV, KOLKA TA; (4) COMMISSIONER OF INCOME TAX- , KOLKATA, (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.