HILL ROCK CONSTRUCTION LTD., MUMBAI V. DCIT, CC- 39, MUMBAI

ITA 2944/MUM/2015

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3571 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-07-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 15-05-2015
• Court: TRIBUNAL
• Department Lawyers: AJAY
• Assessee Lawyers: KAPIL SHETH
• Keywords: Rule of consistency
• Section: 143(3); 142(1); 132; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER I.T.A. NO.2944/M/2015 (ASSESSMENT YEAR: 2009 - 2010 ) HILL ROCK CONSTRUCTION LTD., 11 - B, MITTAL TOWERS, B - WING, NARIMAN POINT, MUMBAI - 21. / VS. DCIT, CC - 39, R.NO.32(1), GR. FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020. ./ PAN : AABCH7169M ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI KAPIL SHETH / RESPONDENT BY : SHRI AJAY, DR / DATE OF HEARING : 01.07.2016 / DATE OF PRONOUNCEMENT : 01 .07.2016 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 15.5.2016 IS AGAINST THE ORDER OF THE CIT (A) - 52, MUMBAI DATED 19.2.2015 FOR THE ASSESSMENT YEAR 2009 - 2010. IN THIS APPEAL, ASSESSEE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: - 1. THE ORDER PASSED BY THE LD CIT (A) IS ILLEGAL, BAD IN LAW, ULTRA VIRES AND CONTRARY TO THE PROVISIONS OF LAW AND FACTS OF THE CASE AND WITHOUT APPRECIATING THE FACTS OF THE CASE IN THEIR PROPER PERSPECTIVE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD CIT (A) ERRED IN CONFIRMING THE LEVYING OF PENALTY U/S 271(1)(B) AMOUNTING TO RS. 20,000/ - . 2. THE ONLY COMMON ISSUE INVOLVED IN THESE APPEALS RELATES TO THE LEVY OF PENALTY U/S 271(1)(B) OF THE ACT. THE CIRCUMSTANCES AND FACTUAL MATRIX RELATING TO THE PENALTY ARE THAT THE PRESENT ASSESSEE BELONGS TO JAI C ROP GROUP, WHICH COMPRISES OF MORE THAN 120 COMPANIES. THERE WAS A SEARCH ACTION U/S 132 OF THE ACT ON THE SAID GROUP. IT IS THE ALLEGATION OF THE AO THAT THE ASSESSEE DID COMPLY WITH THE STATUTORY NOTICES ISSUED U/S 143(2) AND 142(1) OF THE ACT DURING T HE COURSE OF THE ASSESSMENT PROCEEDINGS. ACCORDINGLY, AO INITIATED THE PENALTY PROCEEDINGS U/S 271(1)(B) OF THE ACT AND LEVIED PENALTY OF RS. 20,000/ - FOR ASSESSEES DEFAULT IN COMPLYING WITH THE ABOVE SAID NOTICES. AGGRIEVED, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. 2 3. DURING THE PROCEEDINGS BEFORE THE FIRST APPELLATE AUTHORITY, AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, CIT (A) DISMISSED THE APPEAL. AGAIN AGGRIEVED WITH THE SAID DECISION OF THE CIT (A), ASSESS EE IS IN FURTHER APPEAL BEFORE THE TRIBUNAL. 4. DURING THE PROCEEDINGS BEFORE THE TRIBUNAL, LD COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE LOWER AUTHORITIES. FURTHER, LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT CERTAINLY, IN THE MIN D OF THE ASSESSEE, THERE IS NO SPIRIT OF NON - COMPLIANCE TO THE NOTICES ISSUED BY THE AO. IT IS BASICALLY THE PRESSURE OF WORK AND THE DEFECTS RELATING TO THE MANAGEMENT OF TIME THAT FORCED THE ASSESSEE TO NOT TO COMPLY WITH THE SAID NOTICED IMMEDIATELY. FURTHER, LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS IS NOT THE CASE OF NON - COMPLIANCE TO THE ASSESSMENT PROCEEDINGS; BUT, MERELY A CASE OF BELATED COMPLIANCE. IN ANY CASE, ASSESSEE COMPLIED AND COOPERATED WITH THE AO IN COMPUTING THE ASSESSMENT U/S 143(3) OF THE ACT. IN THESE CIRCUMSTANCES, AS PER THE LD COUNSEL, THE PENALTIES LEVIED U/S 271(1)(B) OF THE ACT SHOULD NOT BE SUSTAINED. FOR THIS PROPOSITION, LD COUNSEL FOR THE ASSESSEE FILED A DECISION OF THE ITAT, MUMBAI BENCH IN THE CASE OF SHRI RAM ESH KUMAR JAIN VS. ACIT IN ITA NOS.458 TO 464/MUM/2013 (AYS 2004 - 05 TO 2010 - 11), DATED 23.9.2015 AND ITAT, DELHI BENCH DECISION IN THE CASE OF AKHIL BHARATIYA PRATHMIK SHMSHAK SANGH BHAVAN TRUST VS. ADIT [2008] 115 TTJ 419 (DELHI) AND PRAYED FOR DECIDING T HE PRESENT APPEALS IN THE LINES OF THE SAID DECISIONS OF THE TRIBUNAL. 5. AFTER HEARING BOTH THE PARTIES AND ON CONSIDERING THE ABOVE DETAILED FACTUAL MATRIX OF EACH OF THE CASE, I AM OF THE OPINION, THE ASSESSEE UNDER CONSIDERATION IS ELIGIBLE FOR RELIEF. FURTHER, I HAVE ALSO PERUSED THE CITED DECISIONS OF THE TRIBUNAL (SUPRA) WHICH ARE RELEVANT FOR THE PROPOSITION THAT WHERE THE ASSESSEE HAD NOT COMPLIED WITH THE NOTICE U/S 142(1) BUT THE ASSESSMENT ORDER WAS PASSED U/S 143(3) AND NOT U/S 144 OF THE ACT, THAT MEANT THE SUBSEQUENT COMPLIANCE IN THE ASSESSMENT PROCEEDINGS WAS CONSIDERED AS GOOD COMPLIANCE AND THE DEFAULTS COMMITTED EARLIER WERE IGNORED BY THE AO AND THEREFORE, THE LEVY OF PENALTY U/S 271(1)(B) WAS NOT JUSTIFIED. CONSIDERING THE SAME AS WEL L AS RESPECTFULLY FOLLOWING THE DECISIONS OF THE TRIBUNAL AND ALSO FOLLOWING THE PRINCIPLE OF CONSISTENCY, WE ARE 3 OF THE OPINION THAT THIS IS NOT A FIT CASE FOR INVOKING THE PROVISIONS OF SECTION 271(1)(B) OF THE ACT. ACCORDINGLY, GROUNDS RAISED BY THE AS SESSEE ARE ALLOWED. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOU NCED IN THE OPEN COURT ON 01 ST JULY, 2016. SD/ - (D. KARUNAKARA RAO) ACCOUNTANT MEMBER MUMBA I ; 1 .7 .2016 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI