Shri Kanu Manilal Patel, Daman V. The ACIT.,Cent.Circle-3, Surat

ITA 2955/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 85776 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 29-11-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Reasonable cause; Non compliance
• Section: 273B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI ACCOUNTANT MEMBER ITA NO S .2 951, 2952, 2953, 2954, 2955 & 2956 /AHD/2011 A. Y . 200 3 - 0 4 TO 2008 - 09 KANU MANILAL PATEL, 17 AM BICA CO - OP. HOUSING SOCIETY, NEAR GUNJAN CINEMA, DAMAN. PAN: ACCPP 2218B VS A CIT , CENTRAL CIRCLE - 3, SURAT . (APPELLANT) (RESPONDENT) REVENUE BY : SHRI NIMESH YADAV , SR.D.R. . ASSESSEE(S) BY : NONE / DATE OF HEARING : 10 / 0 3 /201 5 / DATE OF PRONOUNCEMENT: 20 / 0 3 /201 5 / O R D E R PER: MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER THESE SIX APPEALS HAVE BEEN FILED BY THE ASSESSEE EMANATING FROM A C ONSOLIDATED ORDER OF LEARNED CIT(A) - II, AHMEDABAD DATED 22.09.2011 PERTAINING TO A.Y.2003 - 04 TO A.Y.2008 - 09. FOR ALL THE YEARS , A PENALTY OF RS.10,000/ - EACH WAS IMPOSED U/S.271(1)(B) OF IT ACT. ON THE DATE OF HEARING, NO ONE HAS APPEARED FROM THE SIDE OF THE APPELLANT BUT CONSIDERING THE TRIFLE NATURE OF DISPUTE WE HAVE DECIDED TO PROCEED EX - PARTE QUA THE ASSESSEE , A FTER HEARING LEARNED SR.D.R. WHO HAS PLACED RELIANCE ON THE PENALTY ORDER AS WELL AS THE ORDER OF THE FIRST APPELLATE AUTHORITY. ITA NO S . 2951, 2952, 2953, 2954, 2955, 2956 /AHD /201 1 KANU MANILAL PATEL VS. A CIT , CENTRAL CIR CLE - 3 , SURAT FOR A.Y. 200 3 - 0 4 TO 2008 - 09 - 2 - 2. AS PER TH E PENALTY ORDER PASSED U/S.271(1)(B) OF IT ACT A QUESTIONNAIRE WAS ISSUED TO THE ASSESSEE BY THE AO ON 25.09.2009 WHICH WAS NOT ATTENDED. THEREAFTER , A NOTICE U/S.271(1)(B) WAS ALSO ISSUED BUT NO ONE HAD ATTENDED. LATER ON, A REPLY WAS FURNISHED BY THE ASS ESSEE WHICH WAS REPRODUCED IN THE PENALTY ORDER, RELEVANT PORTION IS AS UNDER: 1. 'FIRSTLY, THE DETAILS REQUIRED TO BE SUBMITTED BEFORE YOUR HONOUR COMPRISES FOR SEVERAL YEARS AND ARE VOLUMINOUS IN NATURE AND HENCE THE SAME COULD NOT BE COMPILED ON THE DA TE OF HEARING. 2. SECONDLY, MY ACCOUNTANT IS ON LEAVE FOR A PERIOD OF ONE MONTH ON ACCOUNT OF MARRIAGE IN HIS FAMILY AND WILL RESUME THE OFFICE IN THE SECOND WEEK OF DECEMBER AND FOR THIS REASON ALSO, THE DETAILS COULD NOT BE COMPILED ON TIME. 3. FURTHER MORE, YOU R HONOUR MAY KINDLY NOTE THAT MY CHARTERED ACCOUNTANT & AUTHORIZED REPRESENTATIVE ARE PRE - OCCUPIED WITH THE TIME BARRING SCRUTINY ASSESSMENT PROCEEDINGS FOR A.Y. 2007 - 0 8 WHICH ARE TO BE COMPLETED ON OR BEFORE DECEMBER 31, 2009, WHEREAS THE DUE DAT E OF THE FINALIZING THE SUBJECT ASSESSMENT IS DECEMBER 31, '201.0 AND IN THAT SITUATION, THE NOTICE U/S. 142(1)/143(2) WERE NOT COMPLIED WITH.' 2.1 IN THE PENALTY ORDER , AN ANOTHER REPLY OF THE ASSESSEE HAS ALSO BEEN REPRODUCED AS UNDER: 1. YOUR HONO UR MAY KINDLY NOTE THAT MY CHARTERED ACCOUNTANT & AUTHORIZED REPRESENTATIVE ARE PRE - OCCUPIED WITH THE TIME BARRING SCRUTINY ASSESSMENT PROCEEDINGS FOR A.Y. 2007 - 08 WHICH ARE TO BE COMPLETED ON OR BEFORE DECEMBER 31, 2009 AND ACCORDINGLY, THEY ARE INFORMING ME THAT THE DETAILS IN OUR CASE WILL BE COMPILED BY THEM IN THE MIDE OF THE JANUARY, 2010. SINCE, OUR CASE IS NOT GETTING TIME BARRED ON 31.12.20009. 2. FURTHER, YOUR HONOUR MAY ALSO APPRECIATE THAT MY ACCOUNTANT HAS JUST RESUMED OFFICE AFTER HI S LEAVE AND IS IN PROCESS OF COMPILING DATA AND SINCE THE DETAILS REQUIRED TO BE SUBMITTED BEFORE YOUR HONOUR COMPRISES FOR SEVERAL YEARS AND ARE VOLUMINOUS IN NATURE, SOME TIME UP TO SECOND WEEK OF JANUARY, 2010 MAY KINDLY BE GRANTED. 3. HOWEVER, THE AO WAS NOT SATISFIED AND HELD THAT THE ASSESSEE WAS NOT ATTENDING THE PROCEEDINGS AND DID NOT INTEND TO COMPLY WITH THE NOTICES ; A LTHOUGH A REASONABLE TIME OF FIVE MONTHS WERE GIVEN . T HEREFORE HELD THAT THE ASSESSEE WAS DELIBERATELY DELAYING THE ASSESSMENT P ROCEEDINGS FOR ALL THE YEARS . A PENALTY OF RS.10,000/ - FOR EACH YEAR WAS LEVIED RESPECTIVELY FOR THE DEFAULT OF FAILURE TO ATTEND THE PROCEEDINGS. ITA NO S . 2951, 2952, 2953, 2954, 2955, 2956 /AHD /201 1 KANU MANILAL PATEL VS. A CIT , CENTRAL CIR CLE - 3 , SURAT FOR A.Y. 200 3 - 0 4 TO 2008 - 09 - 3 - 4. WE HAVE ALSO PERUSED THE ORDER OF LEARNED CIT(A) IN WHICH THE ASSESSEE HAS PLACE D ON RECORD THE SUMMARY OF EVENTS. IN THE SAID SUMMARY, THE ASSESSEE HAS TRIED TO EXPLAIN THE DATE - WISE COMPLIANCE MADE DURING THE COURSE OF ASSESSMENT PROCEEDINGS BEFORE THE FIRST APPELLATE AUTHORITY, IT WAS THUS PLEADED THAT THE ASSESSEE HAS REQUESTED TO GRANT AN ADJOURNMENT UPTI L THE FINALIZATION OF TIME BARRING ASSESSMENTS. S O THE ARGUMENT WAS THAT THE CHARTERED ACCOUNTANT, LEGAL REPRESENTATIVE OF THE ASSESSEE, WAS PREOCCUPIED WITH THE TIME BARRING ASSESSMENT UPTO DECEMBER, 2009; THEREFORE, TIME WAS SOUGHT; HENCE, IT WAS WRONG O N THE PART OF THE REVENUE DEPARTMENT TO ALLEGE THAT THERE WAS NO REASONABLE CAUSE FOR SEEKING ADJOURNMENT. RATHER, F ROM THE SIDE OF THE REVENUE - DEPARTMENT, LEARNED SR.D.R. HAS PLEADED THAT THE ASSESSEE WAS A HABITUAL DEFAULTER THEN THE AO HA D NO OPTION BUT TO LEVY PENALTY. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES AS DISCUSSED HEREINABOVE , WE ARE OF THE CONSCIENTIOUS VIEW THAT A TAX PAYER S HO ULD PAY RESPECT TO THE SHOW CAUSE NOTICE ISSUED BY THE REVENUE DEPARTMENT BY PROMPTLY COMPLYING THE SAM E . I F THERE IS A NEGLIGENCE OR NON COMPLIANCE THEN THE PROVISION OF PENAL ACTION HAS ALSO BEEN SUBSCRIBED IN THE A CT. S UCH TYPE OF PENALTY IS IN THE NATURE OF DETERRENCE TO CONVEY MESSAGE THAT THE NOTICES OF THE REVENUE DEPARTMENT SHOULD BE SERIOUSLY COMPL IED WITH. BUT SIDE BY SIDE THERE IS A PROVISION OF SECTION 273B OF IT ACT WHICH SAYS THAT NO SUCH PENALTY IS IMPOSABLE ON THE ASSESSEE ON FAILURE REFERRED TO IN THE SAID PROVISIONS IF PROVES THAT THERE WAS A REASONABLE CAUSE FOR THE SAID FAILURE. IN THE PR ESENT CASE, ALTHOUGH THE ASSESSEE HAS TRIED TO DEMONSTRATE THAT THERE WAS A REASONABLE CAUSE BUT WE ARE OF THE VIEW THAT THE LEGAL REPRESENTATIVE OF THE ASSESSEE SHOULD HAVE MANAGED HIS AFFAIRS IN SUCH MANNER THAT ALL THE LEGAL MATTERS HANDLED BY HIM SHOUL D BE ATTENDED EFFICIENTLY. THEREFORE, WE HEREBY HOLD THAT INSTEAD OF DELETING THE ENTIRE ITA NO S . 2951, 2952, 2953, 2954, 2955, 2956 /AHD /201 1 KANU MANILAL PATEL VS. A CIT , CENTRAL CIR CLE - 3 , SURAT FOR A.Y. 200 3 - 0 4 TO 2008 - 09 - 4 - PENALTY BY TAKING THE SHELTER OF THE PROVISIONS OF SECTION 273B OF IT ACT IT IS JUSTIFIABLE TO REDUCE THE FIN E IMPOSED OF RS.10,000/ - TO RS.5,000/ - EACH YEAR. RESULTAN TLY, PART RELIEF IS GRANTED FOR ALL THE YEARS INVOLVED. WE ORDER ACCORDINGLY. 5. IN THE RESULT, ALL THE APPEALS ARE PARTLY ALLOWED. SD/ - SD/ - ( ANIL CHATURVEDI ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT M EMBER JUDICIAL MEMBER AHMEDABAD; DATED 20 / 0 3 / 20 1 5 PRABHAT KR. KESARWANI , SR. P . S . S / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) - III, AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD