Shree Sanand Textile Indus.Ltd., Ahmedabad V. The Dy.CIT.,Circle-8, Ahmedabad

ITA 2548/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 89239 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-04-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 06-04-2015
• Assessment Year: 1995-1996
• Appeal Filed On: 13-10-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ROOP CHAND
• Assessee Lawyers: ANIL R SHAH
• Keywords: Reasonable cause; Non compliance
• Section: 143(3); 142(1); 68; 148; 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD (BEFORE SHRI SHAILENDRA KR. YADAV, J.M. & SHRI ANIL CHATURVEDI, A.M.) I.T. A. NO. 2548/AHD/2011 (ASSESS MENT YEAR: 1995-96) SHREE SANAND TEXTILES INDUSTRIES LTD. 10-A, SATTAR TALUKA SOCIETY B/H. C.U. SHAH COLLEGE, NAVJIVAN PRESS, AHMEDABAD-380014 V/S DY. COMM. OF INCOME TAX CIRCLE-8, AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AAMCS8881G APPELLANT BY : SHRI ANIL. R. SHAH, A.R. RESPONDENT BY : SHRI ROOP CHAND, SR. D.R. ( )/ ORDER DATE OF HEARING : 06-04-2015 DATE OF PRONOUNCEMENT : 10 -04-2015 PER SHRI ANIL CHATURVEDI,A.M. 1. THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE OR DER OF CIT(A)-XIV, AHMEDABAD DATED 19.07.2011 FOR A.Y. 1995-96. 2. AT THE OUTSET, THE LD. A.R. SUBMITTED THAT THERE WA S DELAY IN FILING OF THE PRESENT APPEAL. HE SUBMITTED THAT THE ORDER OF LD. CIT(A) WAS RECEIVED ON 02.08.2011 AND THEREFORE THE ASSESSEE SHOULD HAVE F ILED APPEAL BEFORE HON. TRIBUNAL ON OR BEFORE 01.10.2011 BUT THE SAME WAS FILED ON 13.10,2011 THEREBY CAUSING A DELAY OF 12 DAYS. THE ASSESSEE HAS FILED A ITA NO 2548 /AHD/2011 . A.Y. 1995- 96 2 PETITION FOR CONDONING THE DELAY AND ALSO FILED A S WORN AFFIDAVIT OF THE DIRECTOR OF THE ASSESSEE WHEREIN THE REASONS FOR DE LAY HAS BEEN STATED AND HAS ALSO PRAYED FOR CONDONING THE DELAY. THE LD . D.R. OBJECTED TO THE CONDONATION PETITION. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS. AFTER CONSIDER ING THE SUBMISSIONS OF THE LD. A.R. AND THE REASONS GIVEN IN THE AFFIDA VIT FOR DELAY, WE ARE OF THE VIEW THAT THERE WAS A REASONABLE CAUSE FOR DELA Y IN FILING THE PRESENT APPEAL AND WE THEREFORE CONDONE THE DELAY AND ADMIT THE APPEAL FOR HEARING. 4. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 5. ASSESSEE IS A COMPANY WHO FILED ITS RETURN OF INCOM E FOR A.Y. 1995-96 ON 29.11.1995 DECLARING TOTAL LOSS OF RS. 26,92,682 /-. ASSESSMENT U/S. 143(3) WAS COMPLETED ON 26.02.1998 AND THE TOTAL IN COME WAS DETERMINED AT RS. 26,74,100/-. THEREAFTER THE CASE WAS REOPENED U/S. 148 AND THE ASSESSMENT WAS FRAMED U/S. 143(3) READ WITH 147 ON 26.03.2002 AND THE REVISED TOTAL INCOME WAS DETERMINED AT RS. 7,46,23,277/-. AGAINST THE AFORESAID ORDER OF A.O, ASSESSEE PREFER RED APPEAL BEFORE LD. CIT(A) WHO DELETED THE ADDITION MADE BY A.O. AGAIN ST THE ORDER OF LD. CIT(A), REVENUE PREFERRED APPEAL BEFORE HONBLE TRI BUNAL. HONBLE TRIBUNAL VIDE ORDER DATED 15.02.2008 IN ITA NO. 271 9/AHD/2003 SET ASIDE THE ORDER OF LD. CIT(A) TO THE FILE OF A.O AN D DIRECTED HIM TO RE- ADJUDICATE THE ISSUE WITH RESPECT TO ADDITION U/S. 68 AND ON ACCOUNT OF DIFFERENCE IN RATES AND SALES OF PTY. PURSUANT TO T HE DIRECTIONS OF HONBLE ITAT, A.O PASSED U/S. 143(3) R.W.S 254 VIDE ORDER DATED ITA NO 2548 /AHD/2011 . A.Y. 1995- 96 3 21.12.2009 AND THE TOTAL INCOME OF RS. 7,46,23,277/ - WHICH WAS DETERMINED WHILE PASSING THE ORDER U/S. 143(3) R.W. S 147 DATED 26.03.2002 WAS RETAINED. A.O THEREAFTER PASSED PENA LTY ORDER U/S. 271(1)(B) VIDE ORDER DATED 23.06.2010 AND LEVIED PE NALTY OF RS. 50,000/- U/S. 271(1)(B) ON ACCOUNT OF FAILURE ON THE PART OF ASSESSEE TO COMPLY WITH THE NOTICES ISSUED U/S. 142(1). AGGRIEVED BY T HE ORDER OF A.O., ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) WHO V IDE ORDER DATED 19.07.2011GRANTED PARTIAL RELIEF TO THE ASSESSEE BY HOLDING AS UNDER:- 2.3 DECISION: I HAVE CAREFULLY CONSIDERED THE PENALTY ORDER AND THE SUBMISSION FILED BY THE APPELLANT. ALL THE EVIDENCES FILED BY HIM IN THE PA PER BOOK REGARDING HIS CLAIM THAT HE HAS ATTENDED IN RESPONSE TO THE VARIOUS NOTICES ISS UED BY THE DEPARTMENT. THE FACTUAL POSITION IN RESPECT OF EACH OF THE NOTICES IS DISCU SSED AS UNDER: (I) IN RESPECT OF THE FIRST NON COMPLIANCE OF NOTICE DA TED 19/12/2008, IT HAS BEEN SUBMITTED BY THE APPELLANT THAT THE NOTICE WAS NOT RECEIVED. THE APPELLANT HAS NOT GIVEN FURTHER EVIDENCE. THEREFORE, THE BENEFIT OF THE DOUBT IS GIVEN TO THE APPELLANT, AS THE FACTORY OF THE APPELLANT IS CLOSE D. THE PENALTY IMPOSED ON THIS DEFAULT IS DELETED. (II) IN RESPECT OF THE NON COMPLIANCE TOR THE DATE 10/ 02/2009, THE APPELLANT HAS SUBMITTED THAT A DETAILED REPLY DATED 21/02/2009 WA S FILED. IT IS NOTED THAT THE APPELLANT WAS ASKED TO APPEAR ON 24/02/2009 AND A R EPLY DATED 21/02/2009 WAS FILED BY HIM IN THE OFFICE. THERE IS ALSO A STAMP O F 24/02/2009 ON THE OFFICE COPY. ACCORDINGLY, THE PENALTY IMPOSED ON THIS GROUND IS ALSO DELETED. (III) FOR THE DEFAULT FOR NOTICE DATED 28/06/2009, THE AP PELLANT HAS SUBMITTED THAT HE HAD SENT A REPLY WHICH WAS DATED 06/07/2009 BY R.P. A.D. HOWEVER, THERE IS NO EVIDENCE OF PROPER DISPATCH BY R.P.A.D. NOR ANY STA MP OF THE POST OFFICE OR THE ACKNOWLEDGEMENT BY THE POST OFFICE HAS BEEN ENCLOSE D BY THE APPELLANT. THEREFORE, THIS CANNOT BE CONSIDERED AS OFFICIAL CO MPLIANCE. THE CLAIM OF THE APPELLANT THAT HE HAD MADE SUFFICIENT COMPLIANCE OF THE NOTICE IS SUPPORTED BY PROPER EVIDENCE. THE APPELLANT HAS ALSO NOT GIVEN A NY REASONABLE CAUSE FOR NON COMPLIANCE. ACCORDINGLY, CONSIDERING THE ABOVE FACT S, THE PENALTY OF NON COMPLIANCE FOR THIS DEFAULT IS CONFIRMED. (IV) FOR THE DEFAULT FOR NOTICE DATED 18/11 /2009, THE A PPELLANT HAS NOT GIVEN ANY EXPLANATION REGARDING NON APPEARANCE AND NON COMPLI ANCE. ACCORDINGLY, THE PENALTY IMPOSED BY THE A. O. FOR NON COMPLIANCE IN RESPECT OF THIS DEFAULT IS CONFIRMED. (V) FOR THE DEFAULT FOR NOTICE DATED 27/11 /2009, THE A PPELLANT CLAIMS TO HAVE SENT A LETTER TO THE A. O. BUT A COPY OF THE LETTER HAS NO T BEEN ENCLOSED IN THE PAPER BOOK. THOUGH IT IS OBSERVED THAT THE APPELLANT HAS ENCLOSED THE NOTICE ISSUED BY ITA NO 2548 /AHD/2011 . A.Y. 1995- 96 4 THE A.O. BUT THE REPLY TO THE NOTICE AS CLAIMED BY HIM IS NOT ATTACHED. IN THESE CIRCUMSTANCES, THE EXPLANATION GIVEN BY THE APPELLA NT IS NOT SUPPORTED BY ANY EVIDENCE, THEREFORE, THERE IS NO ALTERNATIVE BUT TO CONFIRM PENALTY IMPOSED BY THE A. O. FOR THIS DEFAULT. 6. AGGRIEVED BY THE AFORESAID ORDER OF LD. CIT(A), ASS ESSEE IS NOW IN APPEAL BEFORE US. 7. BEFORE US, LD. A.R. REITERATED THE SUBMISSIONS MADE BEFORE LD. CIT(A) AND FURTHER SUBMITTED THAT NOTICE U/S. 142(1) ON 28 .06.2009 IN PENALTY ORDER IS WRONG AND IN THE ASSESSMENT ORDER THERE IS NO MENTION OF THE DATE OF ISSUE OF NOTICE. SIMILARLY, FOR NOTICE DATED 18. 11.2009, HE SUBMITTED THAT NO NOTICE WAS ISSUED AS PER ASSESSMENT ORDER A ND THEREFORE NO PENALTY COULD BE LEVIED. WITH RESPECT TO THE NOTICE DATED 27.11.2009, HE SUBMITTED THAT THE SAME WAS COMPLIED BY THE ASSESSE E. HE FURTHER SUBMITTED THAT SINCE THE ASSESSMENT ORDER HAS BEEN FRAMED U/S. 143(3) THE PENALTY LEVIED FOR NON COMPLIANCE OF NOTICE BE DELETED. LD. D.R. ON THE OTHER HAND SUPPORTED THE ORDER OF LOWER AUTHORI TIES AND SUBMITTED THAT HONBLE TRIBUNAL HAD SET ASIDE THE ISSUE TO THE FIL E OF A.O WITH A DIRECTION TO RE-ADJUDICATE THE ISSUE AFTER PROVIDIN G REASONABLE OPPORTUNITY TO THE ASSESSEE TO PRODUCE BOOKS AND OTHER MATERIAL S. HE SUBMITTED THAT THE ASSESSEE DID NOT FURNISH ANY DETAILS IN THE SET ASIDE PROCEEDINGS AND THEREFORE IN SUCH CIRCUMSTANCES THE A.O WAS FULLY J USTIFIED IN LEVYING PENALTY U/S. 271(1)(B) MORE SO, WHEN THE ISSUE WAS IN THE SECOND ROUND. HE THUS SUPPORTED THE ORDER OF LD. CIT(A). 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT LD. CIT(A) HAS GRANTED PARTIAL RELIEF TO THE ASSESSEE. FOR THE ITA NO 2548 /AHD/2011 . A.Y. 1995- 96 5 PART OF PENALTY WHICH WAS CONFIRMED BY HIM, HE HAS NOTED THAT ASSESSEE HAS NOT GIVEN ANY REASON FOR NON APPEARANCE AND BEF ORE US ALSO LD. A.R. HAS NOT PLACED ANY MATERIAL ON RECORD TO CONTROVERT THE FINDINGS OF LD. CIT(A). FURTHER, WHEN THE ISSUE WAS SET ASIDE BY T HE CO-ORDINATE BENCH OF TRIBUNAL TO THE FILE OF A.O AND IN THE SECOND RO UND BEFORE A.O, ASSESSEE HAS NOT RESPONDED TO THE NOTICE ISSUED BY A.O, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF LD. CIT(A) AN D THUS THIS GROUND OF ASSESSEE IS DISMISSED. 9. IN THE RESULT, THE APPEAL OF ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 10 - 04 - 2015. SD/- SD/- (SHAILENDRA KR. YADAV) (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,A HMEDABAD