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

ITA 2914/PUN/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 6892 (ITAT-PUNE)
• Duration Of Justice: 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 21-12-2017
• Assessment Year: 2013-2014
• Appeal Filed On: 07-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MUKESH JHA
• Keywords: Search and seizure
• Section: 142(1); 153A; 132; 2; 139; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO S . 2792 TO 2797 /P U N/20 17 / ASSESSMENT YEAR S : 2008 - 09 TO 2013 - 14 SHRI GANESH SUBHASHAPPA MUKTA, PROP. OF SHRI SAIRAM PETROLEUM, BORPHAL, AUSA, LATUR 413520 PAN : BHUPM1096E . / APPELLANT VS. THE ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2, AURANGABAD . / RESPONDENT . / ITA NO S . 2907 & 2908 /P U N/20 1 7 / ASSESSMENT YEAR S : 20 0 8 - 09 & 2009 - 10 SHRI SOMNATH NAGNATHAPPA MUKTA, SHOP NO. 5, MUKTESHWAR COMPLEX, NEAR BUS STAND, AUSA, LATUR 413520 PAN : AOXPM4690M . / APPELLANT VS. THE ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2, AURANGABAD . / RESPONDENT 2 ITA NO S . 2792 TO 2797 & 2907 TO 2915/PUN/2017 . / ITA NO S . 2909 TO 2915 /P U N/20 17 / ASSESSMENT YEAR S : 2008 - 09 TO 2014 - 15 SHRI SANTOSH SUBHASHAPPA MUKTA, 01, MAHADEV GALLI, AUSA, LATUR 413520 PAN : AJRPM7166R . / APPELLANT VS. THE ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2, AURANGABAD . / RESPONDENT / APPELLANT BY : SHRI M.K. KULKARNI / RESPONDENT BY : S HRI MUKESH JHA / DATE OF HEARING : 2 1 . 12 .2017 / DATE OF PRONOUNCEMENT: 28 . 1 2 .2017 / ORDER PER SUSHMA CHOWLA, JM: THIS BUNCH OF APPEALS FILED BY THE DIFFERENT ASSESSEE ARE AGAINST RESPECTIVE CONSOLIDATED ORDER/S OF CIT(A) - 12, PUNE, DATED 18.10.2017 & 13.10.2017, RESPECTIVELY , RELATING TO ASSESSMENT YEARS 2008 - 09 TO 2014 - 15 AGAINST PENALTY LEVIED BY ASSESSING OFFICER UNDER SECTION 271(1)(B) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) AT RS.10,000/ - EACH FOR ALL THE ASSESSMENT YEARS. 2. ALL THE CAPTIONED APPEALS RELATING TO DIFFERENT ASSESSEE ON IDENTICAL ISSUE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. HOWEVER, IN ORDER TO ADJUDICATE THE ISSUE, REFERENCE IS BEING MADE TO THE FACTS AND ISSUE IN ITA NO. 2792/PUN/2017. 3 ITA NO S . 2792 TO 2797 & 2907 TO 2915/PUN/2017 3. THE ISSUE RAISED IN ALL THESE APPEALS IS AGAINST LEVY OF PENALTY UNDER SECTION 271(1)(B) OF THE ACT AT RS.10,000/ - EACH. 4. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE, AT THE OUTSET, POINTED OUT THAT THE ISSUE RAISED IN THIS BUNCH OF APPEALS IS COVERED BY THE RATIO LAID DOWN BY THE TRIBUNAL IN BUNCH OF APPEALS WITH LEAD ORDER IN THE CASE OF SHRI MAHESH B. CHAUDHARI VS. ITO, IN ITA NOS.1444/PN/2016 TO 1450/PN/2016, RELATING TO ASSESSMENT YEARS 2006 - 07 TO 2012 - 13, VIDE CONSOLIDATED ORDER DATED 07.10.2016, WHERE IN THE TRIBUNAL HA D RELIED ON THE DECISION IN THE CASE OF SHRI YASHODHAN NAMDEO CHAUDHARI VS. ITO IN ITA NOS.86 TO 92/PN/2015 RELATING TO ASSESSMENT YEARS 2006 - 07 TO 2012 - 13, ORDER DATED 08.07.2016 5 . THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE STRESSED THAT THOUGH THE ISSUE BEFORE THE TRIBUNAL IN THE CASE OF ANOTHER ASSESSEE IS IDENTICAL , H OWEVER, BECAUSE OF DEFAULT OF THE ASSESSEE, PENALTY SHOULD BE LEVIED FOR EACH OF THE YEARS AT RS.10,0 00/ - EACH. 6 . BRIEFLY, IN THE FACTS OF THE CASE, THE ASSESSEE WAS AN INDIVIDUAL BELONGING TO MUKTA GROUP. SEARCH AND SEIZURE OPERATION S UNDER SECTION 132 OF THE ACT ON THE SAID GROUP W ERE CARRIED ON 27.09.2013. NOTICE UNDER SECTION 153A OF THE ACT WAS ISSUED TO THE ASSESSEE. THEREAFTER, NOTICE UNDER SECTION 142(1) OF THE ACT WAS ALSO ISSUED ON THE ASSESSEE ALONG WITH QUESTIONNAIRE CALLING FOR CERTAIN DETAILS. THE ASSESSEE SOUGHT SOME TIME FOR FILING THE SUBMISSION OF QUESTIONNAIRE. HOWEVER, SINC E THE ASSESSEE COULD NOT COMPLY TO THE SAID NOTICE, SHOW CAUSE NOTICE UNDER SECTION 274 R.W.S. 271(1)(B) OF THE ACT WAS SERVED ON THE ASSESSEE. THE ASSESSEE DID NOT RESPOND TO SUCH NOTICE NOR FILED ANY REPLY. THEREFORE, THE ASSESSING OFFICER LEVIED PENAL TY OF RS.10,000/ - UNDER SECTION 4 ITA NO S . 2792 TO 2797 & 2907 TO 2915/PUN/2017 271(1)(B) OF THE ACT FOR NOT COMPLYING WITH NOTICE DATED 24.08.2015 ISSUED UNDER SECTION 142(1) OF THE ACT. 7 . THE ASSESSING OFFICER SIMILARLY LEVIED PENALTY UNDER SECTION 271(1)(B) OF THE ACT IN RESPECT OF IDENTICAL DEFAUL TS IN ALL OTHER ASSESSMENT YEARS I.E. ASSESSMENT YEARS 200 9 - 1 0 TO 2013 - 14/ 201 4 - 1 5 , AS THE CASE MAY BE . 8 . THE PENALTY LEVIED BY THE ASSESSING OFFICER, IN TURN, WAS CONFIRMED BY THE CIT(A), AGAINST WHICH THE ASSESSEE IS IN APPEAL BEFORE US. THE CIT(A) ALS O DISMISSED THE APPEAL OF ASSESSEE BEING TIME BARRED BY ABOUT NINE MONTHS. 9 . WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE FIRST ISSUE RAISED IN THE PRESENT APPEAL IS THE MAINTAINABILITY OF APPEAL BEFORE THE CIT(A). THE ASSESSEE HAS FILED STATEMENT OF FACTS EXPLAINING THE REASONS FOR NOT FILING THE APPEAL IN TIME BEFORE THE CIT(A), WHICH READ AS UNDER: - THE ASSESSEE IS BASICALLY FROM AGRICULTURIST FAMILY OF LATUR. THE SEARCH ACTION TOOK PLACE AGAINST ALL THE MEMBERS OF THE FAMILY UNDER SECTION 132(1) OF THE ACT. THE ASSESSMENTS IN THE POST SEARCH PERIOD WERE TAKEN UP AND THE EVERY MEMBER BEING ASSESSEE FOR 7 ASSESSM ENT YEARS REMAINED BUSY WITH COMPLYING THE REQUIREMENTS AS DEMANDED BY THE A.O. IN THE ASSESSMENTS OF EACH OF THE FAMILY MEMBERS. THE KIND PERUSAL OF THE ASSESSMENT ORDERS WOULD REVEAL THAT THE AGRICULTURAL FAMILY MEMBERS WERE ASSESSED UNDER SECTION 15 3A AND FORCED WITH UNPRECEDENTED TAX DEMANDS OF ABOUT 50 CRORES OF RUPEES TO - GETHER AND THEN EACH OF THE ASSESSES HAD TO STRUGGLE FOR FILING OF THE FIRST APPEALS AGAINST ASSESSMENT BEFORE CIT(A) - PUNE AND HAD TO UNDERGO TREMENDOUS PRESSURE FOR RECOVERY OF THIS UNPRECEDENTED DEMAND. THE POSITION OF THE FAMILY BECAME MORE PRECARIOUS AND WITH A VIEW TO COME OUT OF THIS UNBEARABLE PRESSURE COMPLAINED IN WRITING BEFORE HIGHER AUTHORITIES THAT THEY WILL COMMIT SUICIDE OF JUSTICE IS NOT DONE TO THEM. THE AUT HORITIES THEN REQUESTED TO LD. CIT(A) - 12 PUNE INFORMING HIM TO TAKE UP THE QUANTUM APPEALS FOR HEARING AS THE ASSESSEES BEING AGRICULTURISTS MAY TAKE EXTREME STEPS OF COMMITTING SUICIDE AS THE TAX DEMANDS RAISED AGAINST THEM ARE CAUSING INJUSTICE TO TH EM. THE LD. CIT(A) - FINALISED THE APPEALS FILED AGAINST S.271(1)(B) ORDER WHERE ASSESSES WERE SADDLED WITH PENALTIES OF RS.10,000/ - EACH KEEPING THE OTHER QUANTUM APPEALS KEEPING HUGE TAX DEMANDS PENDING. IN THE CIRCUMSTANCES THE LD. CIT(A) DISMISSED T HE APPEALS OF THE ASSESSEE. THE LD. CIT(A) DID NOT CONDONE THE DELAY OCCURRED IN THE FILING OF EACH OF THE APPEALS AND DISMISSED THEM. THE LD. CIT(A) ALSO DISMISSED THE 5 ITA NO S . 2792 TO 2797 & 2907 TO 2915/PUN/2017 EACH OF THE APPEALS ON MERITS HOLDING THAT THE ASSESSEE DID NOT FILE AND REPLY TO VAR IOUS NOTICES ISSUED TO HIM/HER AND FAILED TO RESPOND TO THESE NOTICES. 10 . IN THE ABOVE SAID FACTS AND CIRCUMSTANCES WHERE THE ASSESSEE BELONGS TO AGRICULTURIST FAMILY AND BECAUSE OF HIGH TAX DEMAND RAISED IN THE QUANTUM ASSESSMENT, THE ASSESSEE WAS UN ABLE TO FURNISH THE APPEALS IN TIME BEFORE THE CIT(A) AND HENCE, THE DELAY OF ABOUT NINE MONTHS. WE FIND MERIT IN THE PLEA OF ASSESSEE IN THIS REGARD AND CONDONE THE DELAY IN FILING THE APPEAL LATE BY NINE MONTHS. 1 1 . THE CIT(A) HAS ALSO DECIDED THE ISSUE ON MERITS. THE ISSUE ON MERITS ARISING IN THE PRESENT APPEAL IS AGAINST THE DEFAULT IN NON - APPEARANCE BEFORE THE ASSESSING OFFICER IN RESPONSE TO NOTICES ISSUED UNDER SECTION 142(1) OF THE ACT DATED 24.08.2015 HAVE BE EN CONSIDERED AS BASIS FOR LEVY OF PENALTY UNDER SECTION 271(1)(B) OF THE ACT. THE SAID PENALTY HAS BEEN LEVIED FOR ALL THE CAPTIONED ASSESSMENT YEARS I.E. ASSESSMENT YEARS 200 8 - 09 TO 2013 - 14/ 201 4 - 15 . SIMILAR ISSUE OF LEVY OF PENALTY UNDER SECTION 271(1) (B) OF THE ACT ON SIMILAR DEFAULT IN NON - APPEARANCE BEFORE THE ASSESSING OFFICER IN RESPONSE TO NOTICES ISSUED UNDER SECTION 142(1) OF THE ACT, AROSE BEFORE THE TRIBUNAL IN THE CASE OF SHRI MAHESH B. CHAUDHARI VS. VS . ITO (SUPRA). THE TRIBUNAL CONFIRMED THE PENALTY IN ASSESSMENT YEAR 2006 - 07 AND SINCE THE DEFAULT WAS RECURRING IN THE OTHER YEARS ON SAME DATE, THE PENALTY LEVIED UNDER SECTION 271(1)(B) OF THE ACT FOR BALANCE YEARS WERE DELETED. THE TRIBUNAL HELD AS U NDER: - 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 SIMULT ANEOUSLY SEARCHED. THEREAFTER, NOTICE UNDER SECTION 153A WAS ISSUED TO THE ASSESSEE AND THE ASSESSEE IN RETURN SUBMITTED THAT THE ORIGINAL RETURN OF INCOME FILED UNDER SECTION 139 BE TREATED AS FILED IN RESPONSE TO THE SAID NOTICE. THEREAFTER, NOTICE UND ER SECTION 142(1) WAS ISSUED ON 09.05.2013, 19.09.2013 AND ANOTHER NOTICE WAS ISSUED ON 13.12.2013. SINCE THE ASSESSEE FAILED TO COMPLY WITH THE SAID NOTICE, SHOW - CAUSE WAS ISSUED TO THE 6 ITA NO S . 2792 TO 2797 & 2907 TO 2915/PUN/2017 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 INFORMATION/DOCUMENTS SOUGHT FOR, THEN THE ASSESSING OFFICER MAY DIRECT THAT SUCH A PE RSON TO PAY BY WAY OF PENALTY, A SUM OF RS.10,000/ - EACH FOR SUCH FAILURE. THE SAID PENALTY IS PAYABLE IN ADDITION TO TAX, IF ANY, PAYABLE BY THE SAID PERSON. IN THE FACTS OF THE PRESENT CASE, THE ASSESSEE INITIALLY HAD DEFAULTED AND HAD NOT COMPLIED WIT H THE NOTICES UNDER SECTION 142(1) OF THE ACT. HOWEVER, NO DOUBT COMPLETE INFORMATION WAS FILED BY THE ASSESSEE BUT THE SAME DOES NOT ABSOLVE THE ASSESSEE IN DEFAULT BY NOT COMPLYING WITH THE NOTICE ISSUED UNDER SECTION 142(1) OF THE ACT. THE ASSESSING O FFICER HAS BEEN LENIENT IN IMPOSING PENALTY TO THE EXTENT OF RS.10,000/ - , WHICH 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 SECTI ON 271(1)(B) OF THE ACT IN ASSESSMENT YEAR 2006 - 07. 10. FURTHER, THE ASSESSING OFFICER HAS LEVIED PENALTY OF RS.10,000/ - UNDER SECTION 271(1)(B) EACH FOR THE SAME DEFAULT IN ASSESSMENT YEARS 2007 - 08 TO 2012 - 13. WHERE THE ASSESSEE HAS BEEN HELD LIABLE TO PAY THE PENALTY IN ASSESSMENT YEAR 2006 - 07 FOR A DEFAULT WHICH 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 EACH 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 200 7 - 08 TO 2012 - 13 ARE DELETED. 1 2 . THE ISSUE ARISING IN THE PRESENT APPEAL FILED BY THE ASSESSEE IS IDENTICAL TO THE ISSUE BEFORE THE TRIBUNAL IN THE CASE OF SHRI MAHESH B. CHAUDHARI VS. ITO (SUPRA) AND FOLLOWING THE SAME PARITY OF REASONING, WE HOLD THAT THE ASSESSEE IS LIABLE TO LEVY OF PENALTY UNDER SECTION 271(1)(B) OF THE ACT RELATING TO ASSESSMENT YEAR 200 8 - 0 9 . HOWEVER, THE SAID PENALTY LEVIED UNDER SECTION 271(1)(B) OF THE ACT RELATING TO ASSESSMENT YEARS 200 9 - 1 0 TO 201 3 - 1 4 ARE DELETED. 1 3 . THE ISS UE ARISING IN OTHER APPEALS IS IDENTICAL TO THE FACTS AND ISSUE S IN THE CASE OF SHRI GANESH SUBHASHAPPA MUKTA AND OUR DECISION IN THE SAID CASE SHALL APPLY MUTATIS MUTANDIS TO THEM. 7 ITA NO S . 2792 TO 2797 & 2907 TO 2915/PUN/2017 1 4 . IN THE RESULT, APPEAL S OF RESPECTIVE ASSESSEE IN ASSESSMENT YEAR 2008 - 09 ARE DISMISSED AND OTHER APPEALS ARE ALLOWED . ORDER PRONOUNCED ON THIS 28 TH DAY OF DECEM BER , 201 7 . SD/ - SD/ - (ANIL CHATURVEDI) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 28 TH DECEM BER , 201 7 . R R K K / / G G C C V V S S R R / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A) - 12, PUNE ; 4. THE PR. C IT (CENTRAL), NAGPUR ; 5. , , / DR B , ITAT, PUNE; 6. / GUARD FILE. / BY ORDER // TRUE COPY // / PRIVATE SECRETARY , / ITAT, PUNE