KRUPA REALTORSS LTD., MUMBAI V. DCIT ,CC-39, MUMBAI

ITA 2950/MUM/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2534 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-07-2016
• Appeal Filed By: Assessee
• Bench Allotted: J
• Assessment Year: 2008-2009
• Appeal Filed On: 15-05-2015
• Court: TRIBUNAL
• Department Lawyers: K RAVI KIRAN SR
• Section: 143(3); 142(1); 153A; 132; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER I.T.A. NO.2950/M/2015 (ASSESSMENT YEAR: 2008 - 2009 ) I.T.A. NO.2951/M/2015 (ASSESSMENT YEAR: 2009 - 2010 ) KRUP A REALTORS LTD., 110B, MITTAL TOWERS, B - WING, NARIMAN POINT, MUMBAI 400 021. / VS. THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 39, MUMBAI. ./ PAN : AADCK1497K ( / APPELLANT) .. ( / RESPONDENT ) I.T.A. NO.2948/M/2015 (ASSESSMENT YEAR: 2008 - 2009 ) I.T.A. NO.2949/M/2015 (ASSESSMENT YEAR: 2009 - 2010 ) JAILAXMI REALTY & DEVELOPERS LTD., 82, MAKER CHAMBER - III, NARIMAN POINT, MUMBAI 400 021. / VS. DCIT - CC - 39, R.NO.32(1), GROUND FLOOR, AAYAKAR BHAVAN, MK ROAD, MUMBAI 400 020. ./ PAN : AABCJ9315M ( / APPELLANT) .. ( / RESPONDENT ) I.T.A. NO.2947/M/2015 (ASSESSMENT YEAR: 2009 - 2010 ) WELLDONE REAL ESTATE LTD., 82, MAKER CHAMBER - III, NARIMAN POINT, MUMBAI - 21. / VS. DCIT, CENTRAL CIRCLE - 39, MUMBAI. ./ PAN : AAACW6277G ( / APPELLANT) .. ( / RESPONDENT ) I.T.A. NO.2945/M/2015 (ASSESSMENT YEAR: 2009 - 2010 ) NOVELTY REALTY & DEVELOPERS LTD., 11 - B, MITTAL TOWER, B - WING, NARIMAN POINT, MUMBAI - 21. / VS. DCIT, CENTRAL CIRCLE - 39, MUMBAI. ./ PAN : AACCN5799G ( / APPELLANT) .. ( / RESPONDENT ) 2 I.T.A. NO.29 43 /M/2015 (ASSESSMENT YEAR: 2008 - 20 09 ) JAI REALTY VENTURES LTD, 11 - B, MITTAL TOWERS, B - WING, NARIMAN POINT, MUMBAI - 21. / VS. DCIT, CENTRAL CIRCLE - 39, MUMBAI. ./ PAN : AACCN5799G ( / APPELLANT) .. ( / RESPONDENT ) / ASSESSEE BY : SHRI VIJAY MEHTA / REVENUE BY : SHRI K. RAVI KIRAN, SR. AR / DATE OF HEARING : 20 .07.2016 / DATE OF PRONOUNCEMENT : 20 .07.2016 / O R D E R PER BENCH : THERE ARE SEVEN APPEALS UNDER CONSIDERATION AND THEY ARE FILED BY THE ASSESSEES INVOLVING THE ASSESSMENT YEARS 2008 - 2009. SINCE, THE ISSUES INVOLVED IN THESE APPEALS ARE IDENTICAL, THEREFORE, FOR THE SAKE OF CONVENIENCE, THEY ARE CLUBBED, HEARD TOGETHER AND DISPOSED OF I N THIS CONSOLIDATED ORDER. THE ADJUDICATION OF THE APPEALS IS GIVEN IN THE FOLLOWING PARAGRAPHS OF THIS ORDER. 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 THESE PENALTIES ARE THAT THE PRESENT ASSESSEES BELONG TO JAI CROP GROUP, WHICH COMPRISES OF MORE THAN 120 COMPANIES. IN EACH CASE OF THE ASSESSEE, ASSESSMENTS OF SEVEN ASSESSMENT YEARS ARE IN PROGRESS AT THE SAME TIME. THERE WAS A PRESSURE OF WORK FOR THE ASSESSEE AS WELL AS THE REPRESENTATIVES ATTENDING TO THE ASSESSMENT PROCEEDINGS OF THE SAID JAI CRO P G ROUP CASES . THERE WAS A SEARCH ACTION U/S 132 OF THE ACT ON THE SAID GROUP. IN ADDITION, THERE IS A MOUNTING PRESSURE OF AUDIT WORK AND SUPPLY OF INFORMATION TO THE AUDITORS. THE ASSESSEE HAD TO SUBMIT EXPLANATIONS AND THE VOLUMINOUS PAPER BOOKS CONT AIN 1800 PAPERS PRIOR TO NOVEMBER, 2010. THE ASSESSMENT PROCEEDINGS STARTED IN AUGUST, 2010 AND THEY ARE GETTING TIME BAR RED BY DECEMBER, 2010. IN THIS BACK GROUND OF THE FACTS, AO ISSUED NOTICED U/S 143(2) AND 142(1) OF THE ACT. ALTHOUGH THE ASSESSEE CO ULD NOT ATTEND TO THE SAID NOTICES ON THE 3 SCHEDULED DATES, ASSESSEE COMPLIED WITH THE REQUIREMENT S OF THE SAID NOTICES IMMEDIATELY THEREAFTER. THERE WAS COMPLIANCE ON 26.8.2010 BEFORE THE ASSESSING OFFICER AND SUPPLIED NECESSARY INFORMATION / STATEMENTS AN D THE ASSESSMENTS WERE DULY COMPLETED U/S 143(3) READ WITH SECTION 153A OF THE ACT. NO ASSESSMENTS WERE COMPLETED EX - PARTE IN CASES OF THE APPEALS UNDER CONSIDERATION. 3. IN THE ABOVE BACK GROUND FACTS OF THE CASE , LD COUNSEL FOR THE AS SESSEE SUBMITTED THAT CERTAINLY, IN THE MINDS OF THE ASSESSEES, 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 T O 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 COOPERATE D 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 T HE ITAT, MUMBAI BENCH IN THE CASE OF SHRI RAMESH 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 THE PRESENT APPEALS IN THE LINES OF THE SAID DECISIONS OF THE TRIBUNAL. 4. AFTER HEARING BOTH THE PARTIES AND ON CONSIDERING THE ABOVE DETAILED FACTUAL MATRIX OF EACH OF THE SEVEN APPEALS, WE A RE OF THE OPINION, THE ASSESSEE S UNDER CONSIDERATION ARE ELIGIBLE FOR RELIEF . FURTHER, WE 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 ASSESSM ENT 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 WELL AS RESPECTFULLY FOLLOWING THE DECISIONS OF THE TRIBUNAL AND ALSO FOLLOWING THE PRINCIPLE OF 4 CONSISTENCY, WE ARE OF THE OPINION THAT THESE ARE NOT THE FIT CASES FOR INVOKING THE PR OVISIONS OF SECT ION 271(1)(B) OF THE ACT. ACCORDINGLY, GROUNDS RAISED BY THE ASSESSEES IN ALL THE SEVEN APPEALS ARE ALLOWED. 5. IN THE RESULT, ALL THE SEVEN APPEALS FILED BY THE ASSESSEES ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH JULY, 2016. S D / - S D / - ( SANJAY GARG ) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 20 .07.2016 . . ./ 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