Shri Prakash Dalichand Bagrecha, Ahmedabad V. The Income tax Officer,Ward-11(4), Ahmedabad

ITA 2544/AHD/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9257 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 4 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 09-03-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 12-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Assessee Lawyers: K M MEHTA
• Keywords: Reasonable cause; Non compliance
• Section: 143(3); 144; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, A HMEDABAD , (BEFORE SHRI ANIL CHATURVEDI, A.M. & SHRI KUL BHARA T, J.M.) ( , !'# $ , ! %& ) ITA NO. 2544/AHD/2011 (ASSESSM ENT YEAR: 2008-09) PRAKASH DALICHAND BAGRECHA, 290, NEW CLOTH MARKET, AHMEDABAD VS . INCOME TAX OFFICER, WARD-11(4), AHMEDABAD PAN NO. AEMPB4919F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K. M. MEHTA, A.R. RESPONDENT BY : SMT. SONIA KUMAR, SR. D.R. DATE OF HEARING : 09 -03-2 016 DATE OF PRONOUNCEMENT : 10 -03-2016 ( )/ ORDER PER ANIL CHATURVEDI, ACCOUNTANT MEMBER THIS APPEAL FILED BY ASSESSEE IS AGAINST THE ORDER OF CIT(A)-XVI, AHMEDABAD, DATED AUGUST 12, 2011 FOR THE ASSESSMENT YEAR 2008-09 CONFIRMING PENALTY LEVIED U/S.271(1)(B) OF THE ACT . 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI ALS ON RECORD ARE AS UNDER: 3. ASSESSEE IS AN INDIVIDUAL STATED TO BE ENGAGED I N THE BUSINESS OF PLASTIC BAGS IN THE NAME AND STYLE OF M/S. BAGRECHA POLY PA CK. ASSESSEE FILED HIS RETURN OF INCOME FOR A.Y. 2008-09 ON 09.03.2009 DECLARING TOTAL INCOME AT RS.91,087/-. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER, ASSESSMENT WAS FRAMED ITA NO.2544/AHD/11 A.Y. 2008-09 (PRAKASH DALICHAND BAGRECHA VS. ITO) 2 U/S.143(3) OF THE ACT VIDE ORDER DATED 22.11.2010 A ND THE TOTAL INCOME WAS DETERMINED AT RS. 91,080/-. A.O. WHILE FRAMING THE ASSESSMENT ORDER U/S.143(3) NOTED THAT HE HAD ISSUED NOTICES U/S.142(1) OF THE ACT WHICH REMAINED UNCOMPLIED AND ASSESSEE DID NOT ALSO FURNISH ANY WRITTEN REPLY . HE, THEREFORE, HELD THAT ON ACCOUNT OF FAILURE TO COMPLY TO THE NOTICES U/S.142 (1) OF THE ACT ASSESSEE WAS LIABLE FOR PENALTY U/S.271(1)(B) OF THE ACT AND ACC ORDINGLY VIDE ORDER DATED 12.10.2010 LEVIED PENALTY OF RS.20,000/- U/S.271(1) (B) OF THE ACT. AGGRIEVED BY THE ORDER OF A.O., ASSESSEE CARRIED THE MATTER BEFO RE THE LD. CIT(A) WHO VIDE ORDER DATED 12.08.2011 (IN APPEAL NO. CIT(A) XVI/I TO/WD.-11(4)/208/10-11) DISMISSED THE APPEAL OF ASSESSEE. AGGRIEVED BY THE ORDER OF LD. CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED FOLLOWING GROUNDS: 1. THAT THE CIT(A) HAS ERRED IN HOLDING THAT ASS ESSEE DID NOT HAVE REASONABLE CAUSE. 2. THAT ON FACTS & IN LAW LEARNED CIT(A) OUGHT TO H AVE DELETED THE PENALTY U/S.271(1)(B) OF IT ACT. 4. BEFORE US, LD. A.R. SUBMITTED THAT IT IS NOT A C ASE WHERE ASSESSEE DID NOT FURNISH THE DETAILS CALLED FOR BY A.O. AND SUBMITTE D THAT ASSESSEES REPRESENTATIVE HAD INDEED APPEARED BEFORE THE A.O. AND FURNISHED R EPLIES IN PART COMPLIANCE TO THE NOTICE AND THUS IT CANNOT BE SAID THAT THERE WA S NON COMPLIANCE ON PART OF THE ASSESSEE. HE ALSO PLACED RELIANCE ON THE DECISION IN THE CASE OF M/S. RANG INTERNATIONAL VS. ITO IN ITA NO.2543/AHD/2011, ORDE R DATED 15.05.2015 AND PLACED ON RECORD THE COPY OF THE AFORESAID ORDER. HE THEREFORE SUBMITTED THAT THE PENALTY BE DELETED. LD. D.R., ON THE OTHER HAND, S UPPORTED THE ORDER OF ASSESSING OFFICER AND LD. CIT(A). 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESPECT TO LE VY OF PENALTY U/S.271(1)(B) OF THE ITA NO.2544/AHD/11 A.Y. 2008-09 (PRAKASH DALICHAND BAGRECHA VS. ITO) 3 ACT ON ACCOUNT OF NON-APPEARANCE OF ASSESSEE IN RES PONSE TO NOTICES ISSUED U/S.142(1) OF THE ACT BY THE A.O. IN THE PRESENT C ASE, WE FIND THAT THE ASSESSMENT HAS BEEN FRAMED U/S.143(3) OF THE ACT AND FURTHER T HE INCOME RETURNED BY THE ASSESSEE HAS BEEN ACCEPTED BY A.O. WITHOUT MAKING A NY ADDITIONS. WE FURTHER FIND THAT THE CO-ORDINATE BENCH IN CASE OF PRIYANK K. SHAH VS. ITO (IN ITA NO.237/AHD/2013 ORDER DATED 31.07.2013) AFTER RELY ING ON THE DECISION OF THE TRIBUNAL IN THE CASE OF KAMDHENU MOTORS PVT. LTD V S. ACIT VIDE ITA NO. 1321/AHD/2006 DATED 04/08/2006 HAS HELD THAT WHEN A SSESSMENT ORDER IS PASSED U/S. 143(3) OF THE ACT AND NOT U/S. 144 OF THE ACT, THEN NON-COMPLIANCE OF NOTICE U/S.142(1) OF THE ACT IS DEEMED TO HAVE BEEN WAIVED . BEFORE US, REVENUE HAS NOT PLACED ANY CONTRARY BINDING DECISION. WE THEREFORE , FOLLOWING THE DECISION OF THE CO-ORDINATE BENCH IN CASE OF PRIYANK K. SHAH VS. IT O (SUPRA), ARE OF THE VIEW THAT IN THE PRESENT CASE, SINCE, ASSESSMENT ORDER H AS BEEN FRAMED U/S. 143(3) OF THE ACT AND NOT U/S. 144 AND THEREFORE, NON-COMPLIANCE OF NOTICE U/S.142(1) OF THE ACT IS DEEMED TO HAVE BEEN WAIVED AND THEREFORE, THE LE VY OF PENALTY U/S. 271(1)(B) OF THE ACT WOULD NOT BE REQUIRED. WE, THEREFORE, DIRE CT ITS DELETION. THUS, THIS GROUND OF ASSESSEE IS ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED. ORDER PRONOUNCED IN OPEN COURT ON 10 - 03 - 2016 . SD/- SD/- (KUL BHARAT) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 10/03/2016 TRUE COPY S K SINHA COPY OF THE ORDER FORWARDED TO:- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) ITA NO.2544/AHD/11 A.Y. 2008-09 (PRAKASH DALICHAND BAGRECHA VS. ITO) 4 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD