SHRI RAM LAL SHARMA, Jaipur V. INCOME TAX OFFICER, WARD-7-4, Jaipur

ITA 261/JPR/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1455 (ITAT-JAIPUR)
• Duration Of Justice: 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 26-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROSHANTA MEENA JCIT DHK
• Keywords: Non compliance
• Section: 142(1); 147; 148; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KN O] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM AND SHRI VIKRAM SIN GH YADAV, AM VK;DJ VIHY LA-@ ITA NO. 262/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2009-10 SH. PRABHU DAYAL SHARMA KOTOTYA KI DHANI, GRAM-NINDAR, TEHSIL-AMER, JAIPUR CUKE VS. ITO, WARD-7(4) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. BPFPP3975N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 263/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 SH. RAM GOPAL SHARMA KOTOTYA KI DHANI, GRAM-NINDAR, TEHSIL-AMER, JAIPUR CUKE VS. ITO, WARD-7(4), JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. BBGPR7449A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 264/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 SH. GULLA RAM SHARMA KOTOTYA KI DHANI, GRAM-NINDAR, TEHSIL-AMER, JAIPUR CUKE VS. ITO, WARD-7(4), JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. BBWPR0622K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 259/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 SH. GANGA SAHAI SHARMA, KOTOTYA KI DHANI, GRAM-NINDAR, TEHSIL-AMER, JAIPUR CUKE VS. ITO, WARD-7(4), JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAGHG1615R VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT 2 ITA NO. 262, 263, 264, 259, 260 & 261/JP/2018 SHRI PRABHU DAYAL SHARMA, JAIPUR VS. ITO, JAIPUR VK;DJ VIHY LA-@ ITA NO. 260/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 SH. RAM SWAROOP SHARMA KOTOTYA KI DHANI, GRAM-NINDAR, TEHSIL-AMER, JAIPUR CUKE VS. ITO, WARD-7(4), JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. EVTPS8248N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 261/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 SH. RAM LAL SHARMA KOTOTYA KI DHANI, GRAM-NINDAR, TEHSIL-AMER, JAIPUR CUKE VS. ITO, WARD-7(4), JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. BLLPS4485A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P. C PARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SMT. ROSHANTA MEENA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 23/08/2018 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 04/09/2018 VKNS'K@ ORDER PER BENCH: THESE APPEALS HAVE BEEN FILED BY THE INDIVIDUAL ASS ESSEES AGAINST THE RESPECTIVE ORDER PASSED BY THE LD. CIT (APPEALS)-3, JAIPUR DATED 18.01.2018, 17.01.2018 ARISING FROM PENALTY ORDER PASSED U/S 271(1)(B) OF THE ACT FOR AY 2009-10. 2. SINCE COMMON ISSUE IS INVOLVED, ALL THESE APPEAL S WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORD ER. FOR THE PURPOSE OF DISCUSSION, THE CASE OF SHRI PRABHU DAYAL SHARMA IN ITA NO. 262/JP/2018 WAS 3 ITA NO. 262, 263, 264, 259, 260 & 261/JP/2018 SHRI PRABHU DAYAL SHARMA, JAIPUR VS. ITO, JAIPUR TAKEN AS LEAD CASE WITH THE CONSENT OF BOTH THE PAR TIES. IN THIS CASE, THE ASSESSEE HAS CHALLENGED THE CONFIRMATION OF LEVY OF PENALTY OF RS. 20,000/- U/S 271(1)(B) OF THE ACT. 3. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSE SSEE IS AN AGRICULTURIST AND SOLD AGRICULTURAL LAND AT VILLAGE NINDAR, TEHSIL AM ER. THE AO ISSUED NOTICE UNDER SECTION 148 ON 31ST MAY, 2013 ON THE BASIS OF INFORMATION RECEIVED FROM SUB REGISTRAR ABOUT THE SALE OF AGRICULTURAL L AND. THE NOTICE ISSUED UNDER SECTION 148 WAS SERVED THROUGH AFFIXTURE. TH EREAFTER, NOTICE UNDER SECTION 142(1) WAS ISSUED ON 30TH APRIL, 2014. SIN CE THERE WAS NO RESPONSE AND COMPLIANCE ON BEHALF OF THE ASSESSEE TO THE NOT ICES ISSUED BY THE AO, ACCORDINGLY, THE AO FRAMED THE ASSESSMENT UNDER SEC TION 147 READ WITH SECTION 144 OF THE IT ACT ON 23RD JANUARY, 2015 AND INITIATED PENALTY PROCEEDINGS UNDER SECTION 271(1)(B) OF THE ACT. T HE AO LEVIED PENALTY OF RS. 10,000/- EACH FOR FAILURE TO COMPLY WITH THE NOTICE S ISSUED UNDER SECTION 148 AND 142(1) OF THE ACT TOTAL AMOUNTING TO RS. 20,000 /- VIDE ORDER DATED 31ST JULY, 2015. 4. BEING AGGRIEVED, THE ASSESSEE CHALLENGED THE ACT ION OF THE AO BEFORE THE LD. CIT (A) BUT COULD NOT SUCCEED AND THE RELEV ANT FINDINGS OF THE LD CIT(A) ARE CONTAINED AT PARA 4.3 WHICH IS REPRODUCE D AS UNDER:- 4.3 I HAVE CAREFULLY CONSIDERED THE MATERIAL BEFOR E ME. I FIND THAT THE AO IMPOSED THE PENALTY U/S 271(1)(B) OF THE I.T. ACT. OF RS. 20,000/- FOR NON FILING ANY EXPLANATION FOR NON COMPLIANCE OF NOTICE U/S 142(1) OF THE I.T. ACT. I FIND THAT APPELLANT REFUSED TO TAKE THE NOTICE FROM THE POSTAL AUTHORITIES. SIMILARLY THE NOTICE U/S 142(1) WAS ALSO NOT TAKEN BY THE APPELLANT, THE INSPECTOR REPORTED THAT APPELLANT REFUSED TO TAKE T HE NOTICE, WHICH ESTABLISHED THAT APPELLANT IS NOT FOLLOWING THE RULE OF LAW. TH E AIR OF THE APPELLANT 4 ITA NO. 262, 263, 264, 259, 260 & 261/JP/2018 SHRI PRABHU DAYAL SHARMA, JAIPUR VS. ITO, JAIPUR SUBMITTED THAT THE APPELLANT IS ILLITERATE AND AGRI CULTURIST AND THE HON'BLE ITAT SET-A-SIDE THE QUANTUM ORDER OF THE ASSESSING OFFICER, THEREFORE PENALTY U/S 271(1)(B) WILL NOT BE IMPOSED. THIS CON TENTION OF THE A/R OF THE APPELLANT IS NOT ACCEPTABLE BECAUSE THERE IS NO REL ATION BETWEEN THE PENALTY IMPOSED U/S 271(1)(B) WITH THE QUANTUM ORDE R AND THE ARGUMENT OF THE A/R OF APPELLANT IS ALSO NOT CORRECT THAT TH E APPELLANT IS ILLITERATE BECAUSE THE APPELLANT MADE SIGNATURE ON APPEAL MEMO WHICH PROVE THAT APPELLANT IS LITERATE. FURTHER THE APPELLANT IS NOT CO-OPERATING WITH DEPARTMENT AS MENTION ABOVE THAT HE REFUSED TO TAKE THIS NOTICE U/S 142(1) OF THE I.T. ACT. THEREFORE I AM THE VIEW THAT ASSES SING OFFICER RIGHTLY IMPOSED THE PENALTY U/S 271(1)(B) OF THE I.T. ACT O F RS.20,000/-. HENCE I CONFIRM THE PENALTY IMPOSED U/S 271(1)(B) OF THE I. T. ACT OF RS.20,000/-. THIS GROUND IS NOT ALLOWED. 5. DURING THE COURSE OF HEARING, THE LD. A/R SUBMIT TED THAT PENALTY UNDER SECTION 271(1)(B) CAN BE IMPOSED BY THE AO IF HE IS SATISFIED THAT ANY PERSON FAILED TO COMPLY WITH THE NOTICE UNDER SECTION 142( 1) OR UNDER SECTION 143(2) OR DIRECTIONS ISSUED UNDER SECTION 142(2A) OF THE A CT. THEREFORE, NO PENALTY CAN BE LEVIED UNDER SECTION 271(1)(B) FOR NON COMPL IANCE OF NOTICE ISSUED UNDER SECTION 148. HENCE, THE LD. A/R HAS SUBMITTE D THAT THE PENALTY LEVIED BY THE AO OF RS. 10,000/- FOR NON COMPLIANCE OF NOT ICE UNDER SECTION 148 IS NOT VALID AS THE PROVISIONS OF SECTION 271(1)(B) CA NNOT BE INVOKED. HE HAS REFERRED TO THE PROVISIONS OF SECTION 271(1)(B) AND SUBMITTED THAT IT STIPULATES THE LEVY OF PENALTY ON ACCOUNT OF FAILURE OR NON CO MPLIANCE OF ASSESSEE TO THE NOTICE UNDER SECTION 142(1) OR SECTION 143(2) OR SE CTION 142(2A) OF THE ACT. AS REGARDS THE NON COMPLIANCE OF NOTICE ISSUED UNDE R SECTION 142(1), THE LD. A/R OF THE ASSESSEE HAS SUBMITTED THAT SINCE THE AS SESSEE SHIFTED HIS RESIDENCE FROM THE PLACE AS GIVEN IN THE SALE DEED, THEREFORE, THE NOTICES 5 ITA NO. 262, 263, 264, 259, 260 & 261/JP/2018 SHRI PRABHU DAYAL SHARMA, JAIPUR VS. ITO, JAIPUR ISSUED BY THE AO COULD NOT BE SERVED ON THE ASSESSE E. THEREFORE, IN THE ABSENCE OF SERVICE OF NOTICE ISSUED BY THE AO, THE ASSESSEE COULD NOT COMPLY WITH THE NOTICE UNDER SECTION 142(1) OF THE ACT. HE HAS ALSO REFERRED TO THE DECISION OF THIS TRIBUNAL IN ASSESSEES OWN CASE DA TED 20.11.2017 IN QUANTUM PROCEEDINGS AGAINST THE EX PARTE ASSESSMENT PASSED BY THE AO AND SUBMITTED THAT THE TRIBUNAL HAS SET ASIDE THE MATTER TO THE R ECORD OF THE AO FOR DECIDING THE SAME DENOVO AS PER LAW. THE LD AR HAS FURTHER RELIED ON THE DECISION OF THIS BENCH IN CASE OF CHOUTH MAL SHARMA IN ITA NO. 311/JP/2018 DATED 05/07/2018 WHEREIN PENALTY LEVIED IN SIMILAR CIRCUM STANCES WAS DELETED. HENCE, THE LD. A/R HAS PLEADED THAT THE PENALTY LEV IED BY THE AO UNDER SECTION 271(1)(B) MAY BE DELETED/CANCELLED. 6. ON THE OTHER HAND, THE LD. D/R HAS SUBMITTED THA T DESPITE REPEATED NOTICES, THE ASSESSEE DID NOT RESPOND AND APPEAR IN THE ASSESSMENT PROCEEDINGS. EVEN IN THE PENALTY PROCEEDINGS, NOBOD Y HAS APPEARED ON BEHALF OF THE ASSESSEE AND THERE IS A REPORT OF THE INSPEC TOR THAT THE ASSESSSEE REFUSED TO RECEIVE THE NOTICE. SHE HAS FURTHER POI NTED OUT THAT THE AO HAS LEVIED THE PENALTY FOR NON COMPLIANCE OF STATUTORY NOTICE UNDER SECTION 142(1) AS WELL AS OTHER SHOW CAUSE NOTICE ISSUED BY THE AO , THEREFORE, IT IS NOT THE CASE FOR LEVY OF PENALTY FOR NON COMPLIANCE OF NOTI CE UNDER SECTION 148 ONLY BUT SINCE THE ASSESSEE HAS NOT COMPLIED WITH THE NO TICE ISSUED UNDER SECTION 142(1) AND OTHER SHOW CAUSE NOTICES, THEREFORE, THE AO HAS IMPOSED THE PENALTY OF RS. 20,000/-. SHE HAS RELIED UPON THE O RDERS OF THE AUTHORITIES BELOW. 7. RECENTLY, WE HAVE DEALT WITH THE LEVY OF PENALT Y U/S 271(1)(B) IN SIMILAR SET OF FACTS IN CASE OF CHOUTH MAL SHARMA IN ITA NO . 311/JP/2018 DATED 6 ITA NO. 262, 263, 264, 259, 260 & 261/JP/2018 SHRI PRABHU DAYAL SHARMA, JAIPUR VS. ITO, JAIPUR 05/07/2018 WHEREIN PENALTY LEVIED IN SIMILAR CIRCUM STANCES WAS DELETED. THE RELEVANT FINDINGS ARE REPRODUCED AS UNDER: 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS THE RELEVANT MATERIAL ON RECORD. THE ASSESSEE IS NOT REGULARLY ASSESSED TO TAX. SINCE THE ASSESSEE HAS SOLD THE ANCESTRAL AGRICULTURAL LAND D URING THE YEAR RELEVANT TO THE YEAR UNDER CONSIDERATION, THEREFORE, AS PER THE INFORMATION RECEIVED FROM THE SUB REGISTRAR, THE AO ISSUED NOTICE UNDER SECTI ON 148 OF THE ACT. THE AO HAS RECORDED IN THE ORDER THAT THE NOTICE ISSUED UN DER SECTION 148 WAS SERVED THROUGH AFFIXTURE AS THE ASSESSEE WAS NOT AVAILABLE AT THE PLACE OF ADDRESS. FURTHER, THE NOTICE ISSUED UNDER SECTION 142(1) WAS ALSO NOT SERVED ON THE ASSESSEE AND, THEREFORE, THERE WAS NO COMPLIANCE BY THE ASSESSEE TO THE NOTICE ISSUED UNDER SECTION 142(1). THE ASSESSMENT WAS FRAMED UNDER SECTION 147 READ WITH SECTION 144. EVEN DURING THE PENALTY PROCEEDINGS, NONE HAS APPEARED ON BEHALF OF THE ASSESSEE AND THE AO HAS STATED IN THE ORDER THAT THE NOTICE WAS REFUSED TO BE RECEIVED. EVEN THE INSPECTOR ALSO REPORTED THAT ASSESSEE HAS REFUSED TO TAKE NOTICE T HOUGH NONE OF THE REPORTS OF THE POSTAL AUTHORITIES OR THE INSPECTOR HAS STAT ED THAT THE ASSESSEE WAS AVAILABLE AT THE PLACE AND ASSESSEE REFUSED TO RECE IVE THE NOTICE. THEREFORE, THE ASSESSEE HAS EXPLAINED THE FACT THAT HE HAS SHI FTED HIS PLACE OF RESIDENCE AND, THEREFORE, HE COULD NOT RECEIVE THE NOTICE ISS UED BY THE AO. THE ASSESSEE HAS GIVEN THE CURRENT ADDRESS AT 88, RAM N AGAR B, JHOTWARA, JAIPUR. WE FIND THAT THE CURRENT ADDRESS OF THE AS SESSEE IS MENTIONED IN THE ORDER OF THE TRIBUNAL IN QUANTUM APPEAL NO. 530/JP/ 2017. AS REGARDS THE PENALTY LEVIED BY THE AO OF RS. 10,000/- FOR NON CO MPLIANCE OF NOTICE UNDER SECTION 148, WE FIND THAT THE PROVISIONS OF SECTION 271(1)(B) CANNOT BE INVOKED FOR NON COMPLIANCE OF NOTICE UNDER SECTION 148. THE AO WHILE PASSING THE ORDER UNDER SECTION 271(1)(B) HAS OBSER VED AS UNDER :- 7 ITA NO. 262, 263, 264, 259, 260 & 261/JP/2018 SHRI PRABHU DAYAL SHARMA, JAIPUR VS. ITO, JAIPUR IN SUCH FACTS AND CIRCUMSTANCES I AM SATISFIED TH AT THE ASSESSEE IS LIABLE TO BE PENALIZED U/S 271(1)(B) OF THE I.T. AC T, 1961 FOR NON COMPLIANCE OF STATUTORY NOTICE ISSUED U/S 148/142(1) AND SHOW CAUSE NOTICE ISSUED OF THE I.T. ACT, 1961 ISSUED BY THIS OFFICE ON 31.05.2013, 30.04.2014. THUS IT IS CLEAR THAT THE AO HAS LEVIED THE PENALTY @ RS. 10,000/- EACH FOR NON COMPLIANCE OF NOTICES UNDER SECTION 148/142 (1) OF THE ACT. AS IT IS CLEAR FROM THE PROVISIONS OF SECTION 271(1)(B) THAT THIS PROVISION CAN BE INVOKED ONLY FOR NON COMPLIANCE OF NOTICE UNDER SEC TION 115WD(2) OR SECTION 115WE(2) OR SECTION 142(1) OR 143(2) OR DIRECTIONS ISSUED UNDER SECTION 142(2A) OF THE ACT, THEREFORE, OTHER THAN THE DEFAU LT COMMITTED BY THE ASSESSEE SPECIFIED IN THE CLAUSE (B) OF SECTION 271 (1) THE NON COMPLIANCE TO THE OTHER NOTICES OR DIRECTIONS WOULD NOT ATTRACT T HE PENALTY UNDER SECTION 271(1)(B) OF THE ACT. ACCORDINGLY, THE PENALTY LEV IED UNDER SECTION 271(1)(B) FOR NON COMPLIANCE OF NOTICE UNDER SECTION 148 IS N OT VALID AND THE SAME IS DELETED. 5. AS REGARDS THE PENALTY LEVIED FOR NON COMPLIANCE OF NOTICE UNDER SECTION 142(1), WE FIND THAT THE ASSESSEE WAS NOT S ERVED WITH ANY OF THE NOTICES ISSUED BY THE AO DUE TO THE CHANGE OF ADDRE SS AND SINCE THE ASSESSEE HAS NOT FILED ANY RETURN OF INCOME, THEREFORE, THE AO WAS NOT HAVING THE PRESENT ADDRESS OF THE ASSESSEE. HENCE WHEN THE NOT ICE ISSUED UNDER SECTION 142(1) WAS NOT SERVED UPON THE ASSESSEE, AND THE AO HAS NOT CONDUCTED FURTHER ENQUIRY REGARDING THE CURRENT ADDRESS OF TH E ASSESSEE THEN IN THE FACTS AND CIRCUMSTANCES OF THE CASE THAT THE ASSESSEE HAD ALREADY FURNISHED THE CURRENT ADDRESS IN THE QUANTUM PROCEEDINGS, WE FIND THAT THE REASONS EXPLAINED BY THE ASSESSEE ARE BONAFIDE AND REASONAB LE. ACCORDINGLY, IN THE 8 ITA NO. 262, 263, 264, 259, 260 & 261/JP/2018 SHRI PRABHU DAYAL SHARMA, JAIPUR VS. ITO, JAIPUR FACTS AND CIRCUMSTANCES OF THE CASE, WE DELETE THE PENALTY IMPOSED UNDER SECTION 271(1)(B) OF THE ACT FOR NON COMPLIANCE OF SECTION 142(1). 8. FOLLOWING THE ABOVE DECISION, THE PENALTY LEVIED IN THE INSTANT CASE UNDER SECTION 271(1)(B) IS HEREBY DELETED. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. 9. UNDER SIMILAR FACTS AND CIRCUMSTANCES OF THE CAS E, PENALTY HAS BEEN LEVIED IN OTHER CASES IN ITA NO. 263/JP/2018, 264/J P/2018, 259/JP/2018, 260/JP/2018 & 261/JP/2018. OUR FINDINGS AND DIRECTI ONS CONTAINED IN ITA NO. 511/JP/17 SHALL THEREFORE APPLY MUTATIS MUTANDIS TO THESE CASES AS WELL AND THE PENALTY LEVIED IS HEREBY DELETED IN ALL THESE C ASES. IN THE RESULT, THE APPEALS FILED BY THE RESPECTIVE ASSESSEES ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 04/09/2018 SD/- SD/- ( FOT; IKY JKO ) ( FOE FLAG ;KNO ( VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL; / JUDICIAL MEMBER YS[KK LNL; /ACCOUNTANT MEMBER JAIPUR DATED:- 04/09/2018 GANESH KR./ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT-A. SH. PRABHU DAYAL SHARMA, JAIPUR. B. SH. RAM GOPAL SHARM, JAIPUR. C. SH. GULLA RAM SHARMA, JAIPUR. D. SH. GANGA SAHAI SHARMA, JAIPUR. E. SH. RAM SWAROOP SHARMA, JAIPUR. F. SH. RAM LAL SHARMA, JAIPUR. 2. THE RESPONDENT ITO, WARD 7(4), JAIPUR. 9 ITA NO. 262, 263, 264, 259, 260 & 261/JP/2018 SHRI PRABHU DAYAL SHARMA, JAIPUR VS. ITO, JAIPUR 3. THE CIT. 4. THE CIT (4). 5. THE DR, ITAT, JAIPUR. 6. GUARD FILE (ITA NO. 262, 263, 264, 259, 260 & 26 1/JP/2018). VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR