Shantabai Subhashappa Mukta, Latur V. Assistant Commissioner of Income-tax, Central Circle - 2, , Aurangabad

ITA 2576/PUN/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 6999 (ITAT-PUNE)
• Duration Of Justice: 1 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 21-12-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 09-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure; Reasonable cause
• Section: 142(1); 153A; 6; 2; 139

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE . , , BEFORE SHRI D.KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NOS. 2916 TO 2921/PUN/2017 / ASSESSMENT YEARS : 2009-10 TO 2014-15 SUBHASHAPPA VISHWANATHAPPA MUKTA, 01, MAHADEV GALLI, AUSA, LATUR 413 520 PAN : BHXPM2747P . /APPELLANT VS. ACIT, CENTRAL CIRCLE-2, AURANGABAD . / RESPONDENT . / ITA NOS. 2573 TO 2579/PUN/2017 / ASSESSMENT YEARS : 2008-09 TO 2014-15 SHANTABAI SUBHASHAPPA MUKTA, MAHADEV GALLI, AUSA, LATUR 413 520 PAN : BHXPM2944J . /APPELLANT VS. ACIT, CENTRAL CIRCLE-2, AURANGABAD . / RESPONDENT ASSESSEE BY : SHRI M.K. KULKARNI REVENUE BY : SHRI ACHAL SHARMA, ADDL.CIT / DATE OF HEARING : 21.12.2017 / DATE OF PRONOUNCEMENT: 22.12.2017 / ORDER PER BENCH: THERE ARE 13 APPEALS FILED BY TWO DIFFERENT ASSESSE ES UNDER CONSIDERATION INVOLVING A.YRS. 2009-10 TO 2014-15 I N THE CASE OF SHRI SUBHASHAPPA VISHWANATHAPPA MUKTA AND A.YRS. 2008-09 TO 2014-15 IN THE CASE OF SMT. SHANTABAI SUBHASHAPPA MUKTA. THEY ARE FILED AGAINST THE RESPECTIVE ORDERS OF CIT(A)-12, PUNE IN CONNECT ION WITH PENALTY LEVIED ITA NOS.2916 TO 2921/PUN/2017 ITA NOS. 2573 TO 2579/PUN/2017 SHRI SUBHASHAPPA V. MUKTA SMT. SHANTABAI S. MUKTA 2 BY THE ASSESSING OFFICER UNDER SECTION 271(1)(B) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) AT RS.10,000/- EACH FOR ALL TH E ASSESSMENT YEARS. 2. SINCE THE ISSUES INVOLVED IN THESE TWO SETS OF A PPEALS ARE IDENTICAL, THESE APPEALS WERE CLUBBED AND ADJUDICAT ED TOGETHER BY THIS COMPOSITE ORDER. HOWEVER, FOR THE SAKE OF REFERENC E, WE REFER TO FACTS AND ISSUES IN THE CASE OF SHRI SUBHASHAPPA VISHWANA THAPPA MUKTA TAKING ITA NO.2916/PUN/2017 AS THE LEAD CASE. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE EXTRACTED AS UNDER : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD.CIT(A) WAS NOT JUSTIFIED IN NOT CONDONING THE DE LAY OCCURRED IN FILING THE APPEAL. THE LD.CIT(A) LOOKING TO THE FACTS OF THE CASE OUGHT TO HAVE BEEN A VIEW IN CONSONANCE WITH VERDICT OF THE HONB LE BOMBAY HIGH COURT THAT DELAY NOT TO BE REFUSED UNLESS DELAY IN FILING APPEALS SHOWN TO BE DELIBERATE AND INTENTIONS. THE LD.CIT(A) BE DIRECTED TO CONDONE THE DELAY AND DECIDE THE ISSUES ACCORDINGLY TO BE C OMPLETE JUSTICE TO THE APPELLANT HEREIN. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE PENALTY LEVIED OF RS.10,000/- EACH IN THE APPEALS I S NOT JUSTIFIED CONSIDERING THE FACTS OF THE CASE AND THE INJUSTICE FACED BY THE ASSESSEE IN QUANTUM APPEALS WHEREIN THE AGRICULTURIST FAMILY MEMBERS FACED THE HUGE DEMANDS OF TAX NEVER EXPECTED AND SEEN BEFORE. THE PENALTY LEVIED BE QUASHED. 3. BRIEFLY STATED RELEVANT FACTS OF THE CASE ARE TH AT THE ASSESSEE IS AN INDIVIDUAL AND BELONGS TO MUKTA GROUP. ON 27-09-20 13, THERE WAS SEARCH ACTION U/S.132 OF THE ACT ON THIS GROUP WHER E ASSESSEE WAS ALSO COVERED. NOTICE U/S.153A OF THE ACT WAS ISSUED ON THE ASSESSEE. THEREAFTER, NOTICE U/S.142(1) OF THE ACT WAS ALSO I SSUED ON THE ASSESSEE ALONG WITH QUESTIONNAIRE CALLING FOR CERTAIN DETAIL S. ASSESSEE SOUGHT SOME TIME FOR FILING THE SUBMISSION OF QUESTIONNAIR E. HOWEVER, SINCE THE ASSESSEE COULD NOT COMPLY TO THE SAID NOTICE, SHOW CAUSE NOTICE U/S.274 R.W.S. 271(1)(B) OF THE ACT WAS SERVED ON THE ASSES SEE. ASSESSEE DID NOT RESPOND TO SUCH NOTICE NOR FILED ANY REPLY. TH EREFORE, AO LEVIED PENALTY OF RS.10,000/- U/S.271(1)(B) ON THE ASSESSE E FOR EACH OF THE ASSESSMENT YEARS UNDER CONSIDERATION. ITA NOS.2916 TO 2921/PUN/2017 ITA NOS. 2573 TO 2579/PUN/2017 SHRI SUBHASHAPPA V. MUKTA SMT. SHANTABAI S. MUKTA 3 4. IN THE FIRST APPELLATE PROCEEDINGS, THE CIT(A) C ONFIRMED THE PENALTY LEVIED BY THE AO ON ACCOUNT OF FAILURE OF T HE ASSESSEE TO SHOW SUFFICIENT AND REASONABLE CAUSE WHICH PREVENTED HIM TO COMPLY WITH THE NOTICE ISSUED BY THE AO. FURTHER, CIT(A) REFUSED T O CONDONE THE DELAY IN FILING THE APPEAL BEFORE THE CIT(A). 5. THE FACTS AND ISSUES, SUBMISSIONS, ARGUMENTS RAI SED IN THE CASE OF SHRI SUBHASHAPPA VISHWANATHAPPA MUKTA ARE VERBAT IM IN THE CASE OF SMT. SHANTABAI S. MUKTA TOO. 6. AGGRIEVED WITH THE SAID ORDER OF CIT(A) BOTH THE ASSESSEES ARE IN APPEAL BEFORE US WITH THE GROUNDS REFERRED ABOVE FO R ALL THE RESPECTIVE ASSESSMENT YEARS UNDER CONSIDERATION. 7. FIRST, WE ADJUDICATE THE ISSUE OF DELAY RAISED I N GROUND NO.1 OF EACH OF THE APPEALS. THERE IS A DELAY OF MORE THAN 9 MONTHS IN FILING THE APPEALS BY THE ASSESSEES BEFORE CIT(A). IN THE STA TEMENT OF FACTS, ASSESSEE(S) HAVE SUBMITTED THAT THEY BELONG TO AN A GRICULTURAL FAMILY OF LATUR. ASSESSMENTS IN THE POST SEARCH PERIOD WERE TAKEN UP AGAINST THE ASSESSEES FOR ALL THE 6/7 ASSESSMENT YEARS UNDER AP PEAL, AS THE CASE MAY BE, AND ASSESSEES WERE IN THE PROCESS OF COMPLY ING THE REQUIREMENTS OF THE ASSESSMENT AUTHORITIES. THERE W AS AN UNPRECEDENTED TAX DEMAND OF ABOUT RS.50 CRORES ON T HE FAMILY MEMBERS OF THIS GROUP AND THEIR FINANCIAL POSITION WAS MORE PRECARIOUS AND THERE WAS NO OTHER OPTION EXCEPT TO TAKE EXTREM E STEP OF SUICIDE. THEREFORE, ON THIS REASONING, THE ASSESSEES PRAYED TO CONDONE AND DELAY. 8. WE HEARD BOTH THE SIDES ON THE ISSUE OF CONDONA TION OF DELAY. THERE IS NO DISPUTE ON THE FACTS NARRATED IN THE PA RA 7 ABOVE. CONSIDERING THAT THE ASSESSEE BELONGS TO MUKTA GROU P, WHICH IS SOLELY ITA NOS.2916 TO 2921/PUN/2017 ITA NOS. 2573 TO 2579/PUN/2017 SHRI SUBHASHAPPA V. MUKTA SMT. SHANTABAI S. MUKTA 4 AN AGRICULTURAL FAMILY AND SINCE THE ASSESSEE IS NO T FAMILIAR WITH THE LEGAL ASPECTS RELATING TO THE INCOME-TAX MATTERS, WE FIND THE DECISION OF THE CIT(A) ON THIS ISSUE NEEDS REVERSAL AND THEREFORE, PROCEED TO CONDONE THE DELAY IN ALL THE APPEALS FILED BY THE ASSESSEES AND ADMIT THE APPEALS FOR ADJUDICATION. 9. THE CIT(A) ALSO DECIDED THE ISSUE ON MERITS. REG ARDING THE CORRECTNESS OF THE ISSUE OF LEVY OF PENALTY ON MERI TS FOR ALL THE ASSESSMENT YEARS UNDER CONSIDERATION, WE FIND IDENT ICAL ISSUE WAS THE SUBJECT MATTER BEFORE THE PUNE BENCH OF THE TRIBUNA L IN THE CASE OF SHRI MAHESH B. CHAUDHARI VS. ITO, CENTRAL-1, NASHIK AND OTHERS WITH LEAD APPEALS IN ITA NOS. 1444/PN/2016 TO 1450/PN/2016, O RDER DATED 07-10-2016 WHEREIN THE TRIBUNAL HAS FOLLOWED THE DE CISION IN THE CASE OF SHRI YASHODHAN NAMDEO CHAUDHARI IN ITA NOS. 86 TO 9 2/PN/2015 RELATING TO A.YRS. 2006-07 TO 2012-13, ORDER DATED 08-07-2016. THE TRIBUNAL CONFIRMED THE PENALTY LEVIED BY THE AO IN THE FIRST A.Y. 2006-07 AND DELETED THE PENALTY IN THE REMAINING YEARS. IN PRINCIPLE, WE FIND THE FACTS ARE BROADLY COMPARABLE TO THE PRESENT APPEALS . THEREFORE, FOR THE SAKE OF COMPLETENESS, WE PROCEED TO REPRODUCE THE F INDING OF THE TRIBUNAL WHICH READS UNDER : 9. ON THE PERUSAL OF RECORD AND THE ORDERS OF THE AUTHORITIES BELOW, WE FIND THE FACTUAL ASPECTS OF THE CASE ARE THAT AFTER SEARCH AND SEIZURE OPERATION CONDUCTED ON THE CHAUDHARI GROUP OF CASES , THE RESIDENTIAL PREMISES OF THE ASSESSEE WERE SIMULTANEOUSLY SEARCH ED. THEREAFTER, NOTICE UNDER SECTION 153A WAS ISSUED TO THE ASSESSEE AND T HE ASSESSEE IN RETURN SUBMITTED THAT THE ORIGINAL RETURN OF INCOME FILED UNDER SECTION 139 BE TREATED AS FILED IN RESPONSE TO THE SAID NOTICE. THEREAFTE R, NOTICE UNDER SECTION 142(1) WAS ISSUED ON 09.05.2013, 19.09.2013 AND ANO THER NOTICE WAS ISSUED ON 13.12.2013. SINCE THE ASSESSEE FAILED TO COMPLY WITH THE SAID NOTICE, SHOW-CAUSE WAS ISSUED TO THE ASSESSEE AS TO WHY PENALTY UNDER SECTION 271(1)(B) OF THE ACT SHOULD NOT BE LEVIED. UNDER THE PROVISIONS OF THE SAID SECTION WHERE A PERSON HAS DEFAULTED TO COMPLY WITH THE NOTICE ISSUED UNDER SECTION 142(1) AND/OR FAILED TO FURNISH THE I NFORMATION/DOCUMENTS SOUGHT FOR, THEN THE ASSESSING OFFICER MAY DIRECT T HAT SUCH A PERSON TO PAY BY WAY OF PENALTY, A SUM OF RS.10,000/- EACH FOR SU CH FAILURE. THE SAID PENALTY IS PAYABLE IN ADDITION TO TAX, IF ANY, PAYA BLE BY THE SAID PERSON. IN THE FACTS OF THE PRESENT CASE, THE ASSESSEE INITIAL LY HAD DEFAULTED AND HAD NOT COMPLIED WITH THE NOTICES UNDER SECTION 142(1) OF THE ACT. HOWEVER, NO DOUBT COMPLETE INFORMATION WAS FILED BY THE ASSESSE E BUT THE SAME DOES NOT ITA NOS.2916 TO 2921/PUN/2017 ITA NOS. 2573 TO 2579/PUN/2017 SHRI SUBHASHAPPA V. MUKTA SMT. SHANTABAI S. MUKTA 5 ABSOLVE THE ASSESSEE IN DEFAULT BY NOT COMPLYING WI TH THE NOTICE ISSUED UNDER SECTION 142(1) OF THE ACT. THE ASSESSING OFF ICER HAS BEEN LENIENT IN IMPOSING PENALTY TO THE EXTENT OF RS.10,000/-, WHIC H IS EQUIVALENT TO ONE SUCH DEFAULT, AS AGAINST THE DEFAULT OF ASSESSEE IN NON-COMPLIANCE OF VARIOUS DATES. ACCORDINGLY, WE UPHOLD THE LEVY OF PENALTY OF RS.10,000/- UNDER SECTION 271(1)(B) OF THE ACT IN ASSESSMENT YEAR 200 6-07. 10. FURTHER, THE ASSESSING OFFICER HAS LEVIED PENAL TY OF RS.10,000/- UNDER SECTION 271(1)(B) EACH FOR THE SAME DEFAULT I N ASSESSMENT YEARS 2007-08 TO 2012-13. WHERE THE ASSESSEE HAS BEEN HE LD LIABLE TO PAY THE PENALTY IN ASSESSMENT YEAR 2006-07 FOR A DEFAULT WH ICH IS RE-RECURRING IN THE OTHER YEARS I.E. ON SAME DATES, WE FIND NO MERIT IN THE SAID LEVY OF PENALTY OF RS.10,000/- UNDER SECTION 271(1)(B) OF THE ACT IN E ACH OF THE YEARS I.E. ASSESSMENT YEARS 2007-08 TO 2012-13. WE DIRECT THE ASSESSING OFFICER TO DELETE THE SAME. IN THE ENTIRETY OF THE FACTS AND CIRCUMSTANCES, WE UPHOLD THE PENALTY OF RS.10,000/- IN ASSESSMENT YEAR 2006- 07 AND THE PENALTY LEVIED IN THE BALANCE YEARS I.E. ASSESSMENT YEARS 2 007-08 TO 2012-13 ARE DELETED. 10. FROM THE ABOVE, WE FIND THE ISSUE RAISED BY THE PRESENT ASSESSEES STANDS COVERED. IN THE SAID CASES, THE T RIBUNAL DECIDED THE ISSUE AGAINST THE ASSESSEE FOR A.Y. 2006-07 AND IN FAVOUR OF THE ASSESSEE FOR A.YRS. 2007-08 TO 2012-13, I.E. THE SU BSEQUENT ASSESSMENT YEARS. THEREFORE, FOLLOWING THE RULE OF CONSISTEN CY, WE DISMISS THE APPEAL OF THE ASSESSEE FOR A.Y. 2009-10 IN THE CASE OF SHRI SUBHASHAPPA VISHWANATHAPPA MUKTA AND APPEAL OF THE ASSESSEE FOR A.Y. 2008-09 IN THE CASE OF SMT. SHANTABAI S. MUKTA AND ALLOW THE OTHER APPEALS OF THE ASSESSEES FOR THE REMAINING YEARS IN CASE OF BOTH THE ASSESSEES. 11. IN THE RESULT, ITA NO. 2916/PUN/2017 FILED BY S HRI SUBHASHAPPA VISHWANATHAPPA MUKTA & ITA NO.2573/PUN/2017 FILED B Y SMT. SHANTABAI S. MUKTA ARE DISMISSED AND ITA NOS. 2917 TO 2921/PUN/2017 FILED BY SHRI SUBHASHAPPA VISHWANATHAPPA MUKTA & IT A NOS. 2574 TO 2579/PUN/2017 BY SMT. SHANTABAI S. MUKTA ARE ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 22 ND DAY OF DECEMBER, 2017. SD/- SD/- (VIKAS AWASTHY) (D. KARUNAKARA RAO) /JUDICIAL MEMBER / ACCOUNTANT MEMBER PUNE; DATED : 22 ND DECEMBER, 2017. ITA NOS.2916 TO 2921/PUN/2017 ITA NOS. 2573 TO 2579/PUN/2017 SHRI SUBHASHAPPA V. MUKTA SMT. SHANTABAI S. MUKTA 6 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, //TRUE COPY// //TRUE COPY// SENIOR PR IVATE SECRETARY , / ITAT, PUNE 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT(A)-12, PUNE 4. CIT-12, PUNE 5. , , A BENCH PUNE; 6. / GUARD FILE.