India Green Reality Pvt. Ltd., Ahmedabad V. The Asstt. Commissioner of Income Tax, Central Circle-2(4), Ahmedabad

ITA 2584/AHD/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5638 (ITAT-AHMEDABAD)
• Duration Of Justice: 9 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-07-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2013-2014
• Appeal Filed On: 07-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ANKIT TALSANIA
• Section: 142(1); 153A

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER , .., SN ITA NO. AY APPELLANT RESPONDENT 1-4 2577 TO 2580/AHD/2016 2010-11 TO 2013-14 INDIA GREEN REALITY PVT. LTD., 308, ISCON MALL, ABOVE STAR BAZAR, SATELLITE, AHMEDABAD PAN : AACCI 1495 A ACIT, CENTRAL CIRCLE-2(4), AHMEDABAD 5-8 2581 TO 2584/AHD/2016 2010-11 TO 2013-14 INDIA GREEN REALITY PVT. LTD., SATELLITE, AHMEDABAD PAN : AACCI 1495 A ACIT, CENTRAL CIRCLE-2(4), AHMEDABAD ASSESSEE BY : SHRI ANKIT TALSANIA, AR REVENUE BY : SHRI MUDIT NAGPAL, SR. DR / DATE OF HEARING : 14/07/2017 # % / DATE OF PRONOUNCEMENT: 28/07/2017 / O R D E R PER BENCH : THE PRESENT EIGHT APPEALS ARE DIRECTED AT THE INSTA NCE OF THE ASSESSEE AGAINST TWO ORDERS OF THE LD. CIT(A)-13, AHMEDABAD DATED 12.07.2016 PASSED FOR ASSESSMENT YEARS 2010-11 TO 2013-14. THE SOLIT ARY ISSUE INVOLVED IN ALL THESE APPEALS IS WHETHER THE ASSESSEE DESERVES TO B E VISITED WITH PENALTY UNDER SECTION 271(1)(B) OF THE INCOME-TAX ACT, 1961 (HERE INAFTER REFERRED TO AS THE ACT) FOR NON-COMPLIANCE OF NOTICES ISSUED UNDER SE CTION 142(1) OF THE ACT DATED 14.10.2014 AND 16.01.2015. 2. THE BRIEF FACTS RELATING TO THE CASE ARE THAT A SEARCH UNDER SECTION 132(4) OF THE ACT WAS CARRIED OUT IN THE GROUP CASES OF IN DIA GREEN REALITY PVT. LTD. ON 15.03.2013. THE ASSESSEE WAS ALSO COVERED UNDER TH E SEARCH OPERATION ALONG WITH OTHER CASES OF THE GROUP AND NOTICES UNDER SEC TION 153A OF THE ACT WERE ALSO SERVED UPON THE ASSESSEE IN ALL THESE ASSESSME NT YEARS. THE LD. ASSESSING OFFICER THEREAFTER ISSUED NOTICE UNDER SECTION 142( 1) OF THE ACT ON 14.10.2014. THIS NOTICE WAS NOT REPLIED BY THE ASSESSEE. SIMIL ARLY, THE ASSESSING OFFICER ITA NOS. 2577 TO 2584/AHD/2016 INDIA GREEN REALITY PVT LTD VS. ACIT AYS : 2010-11 TO 2013-14 - 2 ALSO ISSUED A NOTICE UNDER SECTION 142(1) OF THE AC T ON 16.01.2015 AND THIS NOTICE ALSO REMAINED UNCOMPLIED WITH. THEREFORE, HE INITIA TED PENALTY PROCEEDINGS UNDER SECTION 271(1)(B) OF THE ACT AND PASSED TWO O RDERS, I.E., DATED 22.04.2015 VIDE WHICH HE IMPOSED PENALTY OF RS.10,000/- FOR VI OLATION OF NOTICE DATED 14.10.2014 IN EACH ASSESSMENT YEAR (AYS 2010-11 TO 2013-14) AND IN THE SECOND ORDER DATED 28.08.2015 THE ASSESSING OFFICER IMPOSE D PENALTY OF RS.10,000/- IN EACH ASSESSMENT YEAR (AYS 2010-11 TO 2013-14) FOR V IOLATION OF NOTICE DATED 16.01.2015. 3. LEARNED FIRST APPELLATE AUTHORITY HAS DISPOSED O F THE APPEALS OF THE ASSESSEE IN TWO GROUPS. IN ONE GROUP VIDE ORDER DA TED 12.07.2016, HE DEALT WITH THE VIOLATION OF NOTICE DATED 14.10.2014 AND IN THE NEXT GROUP VIDE ANOTHER ORDER DATED 12.07.2016 HE DEALT WITH THE VIOLATION OF NOTICE DATED 16.01.2015. IN BOTH ORDERS, THE LD. CIT(A) CONFIRMED THE PENALTY L EVIED BY THE ASSESSING OFFICER U/S. 271(1)(B) OF THE ACT IN EACH ASSESSMEN T YEAR. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN NOW APP EAL BEFORE THE TRIBUNAL. 4. WITH THE ASSISTANCE OF LEARNED REPRESENTATIVES, WE HAVE GONE THROUGH THE RECORD CAREFULLY. WE FIND THAT AS FAR AS NOTICE DA TED 14.10.2014 IS CONCERNED, THERE IS NO EXPLANATION AT THE END OF THE ASSESSEE AS TO WHY IT HAS IGNORED THE STATUTORY NOTICE. IT IS PERTINENT TO OBSERVE THAT ONCE THE ASSESSEE CHOSE NOT TO APPEAR BEFORE THE LD. ASSESSING OFFICER, THEN THE L D. ASSESSING OFFICER OUGHT TO HAVE TAKEN EX-PARTE PROCEEDINGS AGAINST THE ASSESSEE. THEREFORE, WE ARE OF THE VIEW THAT PENALTY IMPOSED QUA NOTICE DATED 14.10.2014 IS CONCERNED, IT IS SUSTAINABLE. IN VIEW OF THE ABOVE DISCUSSION, WE D ISMISS THE APPEALS OF THE ASSESSEE BEARING ITA NOS. 2577 TO 2580/AHD/2016 AND CONFIRM THE PENALTY IMPOSED UNDER SECTION 271(1)(B) OF THE ACT IN AYS 2 010-11 TO 2013-14 FOR NON- COMPLIANCE OF NOTICE DATED 14.10.2014. 5. SINCE WE HAVE ALREADY UPHELD THE IMPOSITION OF P ENALTY LEVIED BY THE ASSESSING OFFICER U/S 271(1)(B) OF THE ACT (SUPRA) FOR THE NON-COMPLIANCE OF NOTICE ISSUED UNDER SECTION 143(2) OF THE ACT DATED 14.10.2014, THE SUBSEQUENT ITA NOS. 2577 TO 2584/AHD/2016 INDIA GREEN REALITY PVT LTD VS. ACIT AYS : 2010-11 TO 2013-14 - 3 PENALTY LEVIED BY THE ASSESSING OFFICER U/S. 271(1) (B) OF THE ACT FOR THE SAME DEFAULT DOES NOT SURVIVE AS HELD BY THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN ITA NO.6131/DEL/2013 IN THE CASE OF SMT. REKHA RANI VS. DCIT, VIDE ORDER DATED 06.05.2015, REPORTED IN [2015] 60 TAXMANN.COM 131 (DELHI-TRIB), WHEREIN IT WAS HELD THAT PENALTY UNDER SECTION 271(1)(B) CA NNOT BE IMPOSED FOR EACH AND EVERY NOTICE ISSUED UNDER SECTION 143(2), WHICH REM AINED NOT COMPLIED WITH ON PART OF ASSESSEE, BUT IT SHOULD BE RESTRICTED TO FI RST DEFAULT ONLY. WE, THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF CO-ORDINATE BENCH (SUPRA), DELETE THE PENALTY IMPOSED UNDER SECTION 271(1)(B) OF THE ACT IN AY 2010-11 TO 2013-14 FOR NON-COMPLIANCE OF NOTICE DATED 16.01.2015 AND ALLOW THE APPEALS OF THE ASSESSEE FOR ALL THESE ASSESSMENT YEARS. 7. IN THE RESULT, THE APPEALS OF THE ASSESSEE BEARI NG ITA NOS. 25775 TO 2580/AHD/2016 ARE DISMISSED AND APPEALS OF THE ASSE SSEE BEARING ITA NOS. 2581 TO 2584/AHD/2016 ARE ALLOWED. ORDER PRONOUNCED IN THE COURT ON 28 TH JULY, 2017 AT AHMEDABAD. SD/- SD/- N.K. BILLAIYA (ACCOUNTANT MEMBER) (RAJPAL YA DAV) JUDICIAL MEMBER AHMEDABAD; DATED, 28/07/2017 **BT / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #' / THE RESPONDENT. 3. % ' / CONCERNED CIT 4. ' ) ( / THE CIT(A)- 5. % , % , /DR,ITAT, AHMEDABAD, 6. 1 / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) % ITAT, AHMEDABAD