M/s Care Concern Hospital Pvt. Ltd., Hooghly V. ACIT, CIR-1, HOOGHLY, Hooghly

ITA 331/KOL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1787 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 10 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 02-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARINDAM BHATTACHARJEE
• Assessee Lawyers: G BANERJEE FCA LD
• Keywords: Reasonable cause; Difference of opinion; Non compliance
• Section: 273B; 143(3); 142(1); 133A; 148; 144; 139

Judgement Text

1 ITA NOS 331 TO 336/KOL/2016 M/S. CARE CONCERN HOSPITAL P.LTD. & ORS. IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: KOL KATA BEFORE: SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER, AND SHRI DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER I.T.A NOS. 331, 334, 335 & 336/KOL/2016 A.YS: 2009-10 & 2010-11 M/S. CARE CONCERN HOSPITAL PVT. LTD PAN: AADCC 3323Q APPELLANT ASSESSEE VS ACIT, CIRCLE-1, HOOGHLY RESPONDENT REVENUE I.T.A NO. 332/KOL/2016 A.Y: 2010-11 TITAS BANDYOPADHYAY PAN: AHQPB9796D APPELLANT ASSESSEE VS ACIT, CIRCLE-1, HOOGHLY RESPONDENT REVENUE I.T.A NO. 333/KOL/2016 A.Y: 2010-11 ARUP BANDYOPADHYAY PAN: AEAPB5997B APPELLANT ASSESSEE VS ACIT, CIRCLE-1, HOOGHLY RESPONDENT REVENUE FOR THE APPELLANT ASSESSEE : SHRI G. BANERJEE, F CA, LD.AR FOR THE RESPONDENT REVENUE : SHRI ARINDAM BHATTAC HARJEE, ADDL. CIT, LD.DR DATE OF HEARING : 16-10-2017 DATE OF PRONOUNCEMENT: 12-01-2018 2 ITA NOS 331 TO 336/KOL/2016 M/S. CARE CONCERN HOSPITAL P.LTD. & ORS. ORDER SHRI S.S.VISWANETHRA RAVI, JM: ALL THE ABOVE APPEALS FILED BY THE RESPECTIVE ASSES SEE ARE AGAINST THE SEPARATE ORDERS DT. 04-01-2016 AND 05-01-2016 OF TH E CIT-A, 21, KOLKATA FOR THE A.YS: 2009-10 & 2010-11 RESPECTIVELY, WHER EIN HE CONFIRMED THE PENALTIES OF RS.42,887/-,RS. 10,000/- RS.10,000/-,R S.64,338/-,RS.5,000/- & RS.5,000/- LEVIED BY THE AO U/S. 271B/271(1)(B) & 2 71F OF THE ACT. 2. SINCE THE FACTS IN THE ISSUE(S) INVOLVED IN ALL THE APPEALS ARE COMMON, EXCEPT VARIANCE IN AMOUNT IMPOSED IN PENALTY AND PR OVISIONS OF LAW. BOTH THE PARTIES AGREED TO TAKE UP THE APPEALS TOGETHER, THEREFORE, WE PROCEED TO HEAR THE SAME AND DISPOSED OF THE SAME BY THIS CONS OLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 3. FIRST, WE SHALL TAKE UP THE APPEAL-ITA NO. 331/ KOL/2016 A.Y 2009-10 BY M/S. CARE CONCERN HOSPITAL P.LTD RELATING TO CON FIRMATION OF PENALTY OF RS.42,887/- BY THE CIT-A IMPOSED BY THE AO U/S. 271 B OF THE ACT. ITA NO. 331/KOL/2016 A.Y 2009-10 BY M/S. CARE CONCER N HOSPITAL P.LTD 4. BRIEF FACTS OF THE CASE ARE THAT A SPECIAL SURVE Y U/S. 133A OF THE ACT WAS CONDUCTED AT THE BUSINESS PREMISES OF THE ASSES SEE ON 27-01-2011 & 28-01-2011. DURING THE SURVEY PROCEEDINGS RECEIPT O F RS.79,63,087/- WAS FOUND FOR THE A.Y UNDER CONSIDERATION. THEREFORE, NOTICE U/S. 148 OF THE ACT WAS ISSUED ON 15-02-2011. IN RESPONSE TO WHICH, THE ASSESSEE HAD FILED ITS RETURN ON 22-03-2011 DISCLOSING TOTAL INCOME OF RS. NIL. NOTICES U/S. 143(2) AND 142(1) OF THE ACT WERE ISSUED. IN RESPONSE TO W HICH, THE AR OF THE ASSESSEE APPEARED AND PRODUCED BOOKS OF ACCOUNT AND OTHER RELEVANT DOCUMENTS IN SUPPORT OF THE RETURN AS FILED. THE A O ASSESSED THE TOTAL LOSS 3 ITA NOS 331 TO 336/KOL/2016 M/S. CARE CONCERN HOSPITAL P.LTD. & ORS. RS. 5,05,850/- AND ALLOWED CARRIED FORWARD VIDE HIS ORDER DT. 27-12-2011 PASSED U/S. 143(3) OF THE ACT. 5. THEREAFTER, THE AO INITIATED PENALTY PROCEEDING U/S. 271B OF THE ACT FOR NOT GETTING ITS ACCOUNTS AUDITED, FOR NOT FURNI SHING THE SAME IN PRESCRIBED PRO-FORMA AND FOR NOT FILING THE SAME ALONG WITH RE TURN OF INCOME UNDER THE ACT. DURING THE SAID PROCEEDINGS U/S. 271B OF T HE ACT THE ASSESSEE SUBMITTED THAT THE TAX AUDIT REPORT WAS NOT FILED A S PER CBDT, CIRCULAR NO. 9/2006 DT. 10-10-2006 AND REQUESTED THE AO TO DROP THE SAID PENALTY PROCEEDINGS. THE AO WAS OF THE OPINION THAT THE SAI D CIRCULAR IS NOT APPLICABLE TO THE PRESENT FACTS OF THE CASE AND IT IS ONLY APPLICABLE TO THOSE CASES WHICH FILED THE RETURN OF INCOME WITHIN STIPU LATED TIME TO THE CONCERNED INCOME-TAX OFFICE. THE AO REJECTING THE A BOVE SUBMISSIONS OF THE ASSESSEE IMPOSED PENALTY OF RS.42,887/- I.E. % OF THE GROSS SALES OF RS.85,77,353/-. 6. AGGRIEVED BY SUCH ORDER OF THE AO, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT-A. BEFORE HIM THE ASSESSEE CONTENDED THAT DUE TO DISPUTES WITH ITS AUDITOR, FINANCIAL HARDSHIP, ADMINISTRATIV E DIFFICULTIES RELATING TO BANK LOAN AND FURTHER DUE TO RESIGNATION OF SAID AUDITOR ON 09-12-2010 THE ASSESSEE FAILED TO GET THE ACCOUNTS AUDITED, THE AS SESSEE APPOINTED NEW AUDITOR ON 20-12-2010 AND THE SAID AUDITOR STARTED ITS AUDIT THEREAFTER. THE AUDIT OF PRECEDING FINANCIAL YEAR ENDING ON 31-03-0 9 WAS DELAYED DUE TO ABOVE SAID REASONS AND FINALLY COMPLETED ON 15-03-2 011. THE TAX AUDIT AS REQUIRED U/S. 44AB OF THE ACT COULD NOT BE COMPLETE D BEFORE 15-03-2011. THE DELAY IN OBTAINING THE AUDIT REPORT U/S. 44AB OF THE I.T ACT ARE ATTRIBUTABLE TO THESE REASONS WHICH BEYOND THE CONT ROL OF ASSESSEE, UNINTENTIONAL AND REASONS STATED ABOVE ARE BONAFIDE . BEFORE THE CIT-A THE ASSESSEE FURTHER SUBMITTED THAT THE TAR WAS FILED B EFORE THE AO AND THE AO MADE HIS ASSESSMENT U/S. 143(3) OF THE ACT ON 27-12 -2011. THE ASSESSEE 4 ITA NOS 331 TO 336/KOL/2016 M/S. CARE CONCERN HOSPITAL P.LTD. & ORS. ALSO SUBMITTED THAT THE PURPOSE AND INTENT OF FURN ISHING OF TAX AUDIT REPORT HAS BEEN ACHIEVED AND COMPLIED WITH, THE LEVY OF PE NALTY FOR TECHNICAL AND VENIAL BREACH OF LAW IS NOT JUSTIFIED EITHER ON LEG AL OR FACTUAL GROUNDS AND PRAYED TO CANCEL THE SAID PENALTY IMPOSED BY THE AO U/S. 271B OF THE ACT. 7. THE CIT-A CONSIDERING THE ABOVE SUBMISSIONS OF A SSESSEE AND CBDT CIRCULAR NO. 9 OF 2006 DT. 10-010-06 AS RELIED ON B Y THE ASSESSEE FOR NON IMPOSITION OF PENALTY, CONFIRMED THE ACTION OF THE AO IN IMPOSING THE SAME BY STATING AS UNDER:- 5. DECISION : THE ISSUE, RELATED TO THE IMPOSITION OF PENALTY U/S .271B OF THE I.T. ACT, HAS BEEN DISCUSSED WITH THE LD. A/R OF THE APPELLANT AND THE SUBMISSION, IN THIS REGARD, VIDE LETTER NO.JNB/115/15-16 DT.15.12.15 IS REFERRED. THE PROVISION OF SECTION 271B OF THE I.T. ACT IS RE PRODUCED BELOW: 'IF ANY PERSON FAILS TO GET HIS ACCOUNTS AUDITED IN RESPECT OF ANY PREVIOUS YEAR OR YEARS RELEVANT TO AN ASSESSMENT YEAR OR {FURNISH A REPORT OF SUCH AUDIT AS REQUIRED UNDER SECTION 44AB}, THE [ASSESSING} OFFICER MAY DIRECT THAT SUCH PERSON SHA LL PAY, BY WAY OF PENALTY, A SUM EQUAL TO ONE-HALF PER CENT OF THE TOTAL SALES, TURNOVER OR G ROSS RECEIPTS, AS THE CASE MAY BE, IN BUSINESS, OR OF THE GROSS RECEIPTS IN PROFESSION, IN SUCH PRE VIOUS YEAR OR YEARS OR 0 SUM OF [ONE HUNDRED FIFTY THOUSAND RUPEES}, WHICHEVER IS LESS. N 5.2. IT MAY BE SEEN THAT THERE IS 'NO AMBIGUITY AND THE ONUS TO GET THE ACCOUNTS AUDITED AND FURNISH THE REPORT OF THE AUDIT, AS REQUIRED VIDE S ECTION 44AB OF THE IT. ACT, TO THE A.O. HOWEVER, IF ANY PERSON FAILS TO COMPLY THEN THE A.O . MAY DIRECT THAT SUCH PERSON SHALL PAY BY WAY OF PENALTY, A SUM AS PROVIDED IN THE ACT.' IN THE INSTANT CASE, THE ASSESSEE WAS TO GET ITS AC COUNTS, FOR F.Y.2009-10 BEFORE THE SPECIFIED DATE AND FURNISH BY THAT DATE THE REPORT OF SUCH AU DIT IN THE PRESCRIBED FORM DULY SIGNED AND VERIFIED BY SUCH ACCOUNTANT AND SETTING FORTH FOR S UCH PARTICULARS AS MAY BE PRESCRIBED. FOR THE RELEVANT A.Y. 2010-11, THE 'SPECIFIED DATE' WAS 15. 10.2010. IN SUCH SITUATION THE A.O. INITIATED PENALTY PROCEEDING. 5.3. THE ATTENTION OF THE LD. A/R, DURING THE COURS E OF INSTANT APPEAL PROCEEDING, WAS DRAWN TO THE OBSERVATION OF THE A.O. WHICH IS DULY MENTIONED IN THE RELEVANT PENALTY ORDER U/S.271B DT.29.06.2012. THE A.O. OBSERVES THAT, LITHE REQUES T OF THE DIRECTOR CANNOT BE ACCEPTED BECAUSE, THOSE ASSESSEES IN WHOSE CASE THE RETURN H AS BEEN FILED WITHIN DUE DATE, ARE NOT REQUIRED TO SUBMIT ANY AUDIT REPORT TO THE OFFICE, ONLY THE RELEVANT COLUMNS OF SUCH E-FILED RETURN ARE TO BE FILLED UP ON THE BASIS OF SUCH REP ORT. BUT IF THE RETURN IS NOT FILED WITHIN DUE DATE, PROVISION OF SECTION 44AB COMES INTO PLAY. IN THAT SITUATION, TAX AUDIT REPORT SHOULD BE FURNISHED TO THE OFFICE ON OR BEFORE THE DUE DATE.' THE ATTENTION OF THE LD. A/R HAS ALSO BEEN DRAWN TO PARA 6(II) OF THE CIRCULAR NO.9/2006 DT.L0.10.2006, WHEREIN RELEVANT CLARIFICATIONS ARE GIVEN. THE SAID PARA IS REPRODUCED BELOW: 6(I) 'THE REPORT OF AUDIT UNDER SECTION 44AB IS NOT 10 BE ATTACHED WITH THE RETURN. IT SHOULD NOT BE FURNISHED SEPARATELY ALSO BEFORE O R AFTER THE DUE DATE, HOWEVER, ON ASSESSEE SHOULD GET THE REPORT OF AUDIT FROM AN ACC OUNTANT UNDER SAID SECTION BEFORE THE DUE DATE OF THE FURNISHING OF THE RETURN AND SH OULD FILL OUT THE RELEVANT COLUMNS OF THESE FORMS ON THE BASIS OF SUCH REPORT. THE ASSESS EE SHOULD RETAIN THE REPORT WITH HIMSELF. IT MAY BE FURNISHED IN ORIGINAL DURING THE ASSESSMENT PROCEEDINGS. NO PENALTY UNDER SECTION 2 71B SHALL BE INITIATED OR LEVIED FO R NOT FURNISHING THE TAX AUDIT REPORT ON OR BEFORE THE DUE DATE. HOWEVER, IF THE AUDIT RE PORT HAS NOT BEEN OBTAINED BEFORE THE DUE DATE, PROVISIONS OF SECTION 271 B SHALL BE ATTRACTED. 5 ITA NOS 331 TO 336/KOL/2016 M/S. CARE CONCERN HOSPITAL P.LTD. & ORS. 5.4. IT IS SEEN THAT THE A/R OF THE ASSESSEE SHRI A RUP BANDYOPADHYAY HAD SUBMITTED, DURING THE COURSE OF ASSESSMENT PROCEEDING, ON 02.05.2012 THAT , 'THE AUDIT REPORT WAS NOT SUBMITTED IN THE OFFICE AS PER CBD, CIRCULAR NO. 9/2006 AND THE DIRECTOR OF THE COMPANY HAS REQUESTED TO DROP THE PENALTY PROCEEDINGS U/S.271B.' THE A/R OF THE APPELLANT FILED A SUBMISSION DT.1S.12.2015 WHEREIN REFERENCE HAS BEEN MADE TO TH E DISPUTE WITH AUDITOR, FINANCIAL AND ADMINISTRATIVE DIFFICULTIES BUT ASSESSING OFFICER W AS NEVER INFORMED ABOUT ANY REASON OTHER THAN CIRCULAR NO.9 OF 2010. BUT THE SAID CIRCULAR IS NOT APPLICABLE IN THE INSTANT CASE. IN VIEW OF THIS, THE PENALTY U S.271B OF THE ACT IS CONFIRMED.' 8. BEFORE US THE LD.AR OF THE ASSESSEE HAS REITERAT ED HIS SAME SUBMISSIONS MADE BEFORE THE CIT-A AND ARGUED THERE WAS A DELAY OF 18 MONTHS IN GETTING THE ACCOUNTS AUDITED DUE TO DISPU TE WITH THE PREVIOUS AUDITOR. HE ALSO SUBMITS THAT THE AO FASTENED THE R ESPONSIBILITY OF GETTING THE ACCOUNTS AUDITED BY THE ASSESSEE IN PURSUANCE O F (A), (B) & (C) OF SECTION 44AB OF THE ACT, BUT THE ASSESSEE DOES NOT FALL UNDER (A), (B) & (C) OF SECTION 44AB OF THE ACT AS THE ACCOUNTS OF THE A SSESSEE HAVE BEEN AUDITED AS PER PROVISIONS OF COMPANIES ACT, 1956 AN D THEREFORE, THE (A), (B) & ( C) OF SECTION 44AB OF THE I.T ACT, 1961 DOES NO T ATTRACT IN IMPOSING THE PENALTY, AS IT WAS PROTECTED BY 2 ND PROVISO OF SECTION 44AB OF THE ACT. BEFORE US THE ASSESSEE FILED A DETAILED STATEMENT O F FILING THE AUDIT & TAX AUDIT AND ARGUED THAT FOR THE A.Y 2009-10 , THE SPE CIFIED DATE TO FURNISH TAX AUDIT WAS ON 30-09-09, WHICH WAS COMPLETED ON 15-03 -2011 AND THERE WAS A DELAY OF 18 MONTHS. THE AO DETERMINED THE LOSS AN D ALLOWED CARRY FORWARD THE SAME IN SCRUTINY PROCEEDINGS. IN SUPPORT OF THE CONTENTION, HE RELIED ON THE FOLLOWING CASE LAWS/DECISIONS ON IMPOSITION OF PENALTY U/S. 271B OF THE ACT: IN THE CASE OF KAMLESH R.AGARWAL (HUF) (2006) 99 IT D 27(AHD) HELD: IN THIS CASE THE ASSESSEE TOOK 4-5 MONTHS IN GETTING ACCOUNTS AUDITED, WHICH WAS REASONABLE AND THE AO WAS NOT JUSTIFIED IN LEVYING THE PENALTY U/S. 271B OF THE ACT. IN THE CASE OF E.C.C PROJECT PVT. LTD (2015) 374 IT R 44(ALL) HELD: IN THIS CASE THE AO FOUND THAT THE AUDIT REPO RT U/S. 44AB OF THE ACT WAS NOT OBTAINED IN TIME AND LEVIED PENALTY, WHICH WAS UPHELD BY THE CI T-A. THE TRIBUNAL CANCELLED THE PENALTY. 9. IN VIEW OF ABOVE, HE ARGUED THAT THE PENALTY IMP OSED BY THE AO U/S. 271B AND CONFIRMED BY THE CIT-A IS LIABLE TO BE CAN CELLED AND URGED TO ALLOW THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN THI S REGARD. 6 ITA NOS 331 TO 336/KOL/2016 M/S. CARE CONCERN HOSPITAL P.LTD. & ORS. 10. ON THE OTHER HAND, THE LD.DR SUBMITS THAT THE A SSESSEE FAILED TO GIVE EXPLANATION BEFORE THE AO AND THE CONTENTION OF HAV ING DISPUTES WITH PREVIOUS AUDITOR CAME UP BEFORE THE CIT-A FOR THE F IRST TIME AND IT WAS NOT BEFORE THE AO. HE ALSO ARGUED THAT THE SAID STATEME NT AS FILED BY THE ASSESSEE WAS NOT BEFORE THE AO. IN SUPPORT OF HIS C ONTENTION, HE REFERRED TO PAGE 4 AT PARA NO- 5.4 OF THE ORDER OF THE CIT-A, S UPPORTED THE FINDING OF THE AO. HE URGED TO CONFIRM THE IMPUGNED PENALTY IM POSED BY THE AO AND CONFIRMED BY THE CIT-A. 11. HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIA L ON RECORD. WE FIND THAT THE AO IMPOSED THE PENALTY U/S. 271B OF THE AC T FOR NOT SUBMITTING THE AUDITED ACCOUNTS OF THE ASSESSEE BY AN ACCOUNTANT B EFORE THE SPECIFIED DATE REQUIRED AS PER SUB-SECTION (A), (B) & ( C) OF SECT ION 44AB OF THE ACT BY 30- 09-2009. WE FIND THAT THE AO IMPOSED PENALTY OF RS. 42,887/- I.E. % OF GROSS RECEIPTS OF RS.85,77,353/- FOUND DURING THE S URVEY FOR THE A.Y UNDER CONSIDERATION. THE AO OPINED IN HIS ORDER THAT THE SUB-SECTION (A),(B) & (C) OF SECTION 44AB OF THE ACT IS THAT EVERY PERSON CAR RYING ON BUSINESS WITH TOTAL SALES, TURNOVER OR GROSS RECEIPTS EXCEEDING R S. 40 LAKHS, NEEDS TO BE ACCOUNTS AUDITED AND FURNISHED THE SAME BEFORE THE SPECIFIED DATE. ON PERUSAL OF THE PAPER BOOK PAGES 1-13, WE FIND THAT EARLIER THE AUDITOR, M/S. P. GHOSH & ASSOCIATES RESIGNED FROM THE OFFICE OF S TATUTORY AUDITOR OF ASSESSEE ON 09-12-2010. THEREAFTER, THE ASSESSEE AP POINTED A NEW AUDITOR, M/S. B.S. MURTHY & ASSOCIATES ON 22-12-2010. FROM P AGES 5,7, 10,11 & 12, CLEARLY SHOWS THAT THE ASSESSEE HAD DISPUTES WITH EARLIER AUDITOR, M/S. P.GHOSH & ASSOCIATES AND LODGED A COMPLAINT TO INST ITUTE OF CHARTERED ACCOUNTANTS OF INDIA. THEREAFTER, THE ASSESSEE WITH DREW THE SAME. IT ESTABLISHES THAT DUE TO SUCH DISPUTES WITH EARLIER AUDITOR, THERE WAS DELAY IN AUDITING THE BOOKS OF ACCOUNT REQUIRED U/S. 44AB OF THE ACT FOR THE A.Y UNDER CONSIDERATION. ON PERUSAL OF STATEMENT OF DATE OF A UDIT/TAX AUDIT AS FILED BY 7 ITA NOS 331 TO 336/KOL/2016 M/S. CARE CONCERN HOSPITAL P.LTD. & ORS. THE ASSESSEE BEFORE US, WE FIND THAT THE ASSESSEE S TARTED ITS BUSINESS FROM THE F.Y 2007-08 RELEVANT TO A.Y 2008-09 AND THE AUD IT WAS COMPLETED ON 02-09-2008 I.E WITHIN TIME. WE NOTE THAT FOR THE A. Y UNDER CONSIDERATION THE ASSESSEE REQUIRED TO FILE THE TAX AUDIT REPORT BY 3 0-09-2009. HOWEVER, DUE TO SUCH DISPUTES AND DELAY, THE SAME WAS FILED BY T HE ASSESSEE ON 15-03- 2011 BY A NEW AUDITOR, M/S. B.S. MURTHY & ASSOCIATE S, WHO WAS APPOINTED ON 20-12-2010. THEREFORE, IT CLEARLY SHOWS THAT DUE TO DISPUTES BETWEEN THE ASSESSEE WITH ITS EARLIER AUDITOR AND RESIGNATION T HEREOF, THE SAME (AUDITED ACCOUNTS) WAS FILED BEFORE THE AO BELATEDLY. ON PE RUSAL OF THE SAID STATEMENT FILED BY THE ASSESSEE BEFORE US, WE FIND THAT THERE WAS DELAY IN GETTING THE ACCOUNTS AUDITED ONLY IN THE A.YS 2009- 10 & 10-11 AND THERE WAS NO DELAY IN IMMEDIATE EARLIER PREVIOUS YEAR AND SUBSEQUENT YEARS I.E. 2010-11 TO 2016-17. THUS, THE SAID DELAY IN FILING THE TAX AUDIT WAS NOT INTENTIONAL. THERE WAS REASONABLE CAUSE IN NOT GETT ING THE ACCOUNTS AUDITED AND FILING THE SAME BEFORE THE AO IN TIME. THEREFOR E, IN SUCH PECULIAR CIRCUMSTANCES, THE PENALTY IS LIABLE TO BE HELD AS INVALID AND THE SAME IS CANCELLED. THUS, THE PENALTY IMPOSED BY THE AO AND CONFIRMED BY THE CIT-A IS CANCELLED. THE GROUND RAISED BY THE ASSESSEE IN THIS REGARD IS ALLOWED. THEREFORE, THE APPEAL OF ASSESSEE ITA NO.331/KOL/20 16 FOR THE A.Y 2009-10 IS ALLOWED. ITA NO. 334/KOL/2016 A.Y 2010-11 BY M/S. CARE CONCE RN HOSPITAL P.LTD 12. WE FIND THAT THE AO IN THIS CASE ON SIMILAR SET OF FACTS AND CIRCUMSTANCES IMPOSED PENALTY OF RS.42,887/- U/ S. 271B OF THE ACT. THE ASSESSEE MADE SUBMISSIONS AS ADVANCED IN A.Y 2009-1 0 BEFORE THE CIT-A AND THE CIT-A CONFIRMED THE PENALTY ON THE SAME SET OF FACTS. A VIEW WAS TAKEN ON SIMILAR ISSUE IN AFOREMENTIONED PARAS IN ITA NO. 331/KOL/2016 FOR THE A.Y 2009-10 BY DISMISSING THE ORDER OF THE CIT- A. THEREFORE, WE ADOPT THE SAME VIEW IN ITA NO.334/KOL/2016 FOR THE A.Y 20 10-11 BY THE SAME 8 ITA NOS 331 TO 336/KOL/2016 M/S. CARE CONCERN HOSPITAL P.LTD. & ORS. ASSESSEE. THEREFORE, THE PENALTY IMPOSED OF RS.42, 887/- BY THE AO AND CONFIRMED BY THE CIT-A IS CANCELLED. THE GROUND RAI SED BY THE ASSESSEE IN THIS REGARD IS ALLOWED. THUS, THE APPEAL OF ASSESSE E ITA NO.334/KOL/2016 FOR THE A.Y 2010-11 IS ALLOWED. ITA NO. 335/KOL/2016 A.Y 2009-10 BY M/S. CARE CONCER N HOSPITAL P.LTD 13. THE AO INITIATED THE PROCEEDINGS U/S. 271F OF T HE ACT FOR NOT FILING THE RETURN OF INCOME IN TIME REQUIRED U/S. 139(1) AS WE LL AS AT THE END OF RELEVANT A.Y AS PER PROVISO TO SUB-SECTION (1) OF S ECTION 139 OF THE ACT. FOR NON-COMPLIANCE OF NOTICE ISSUED AND FOR NOT FILING THE RETURN OF INCOME IN TIME, THE AO IMPOSED PENALTY OF RS.5,000/- U/S. 271 F OF THE ACT. 14. BEFORE THE CIT-A, THE ASSESSEE CONTENDED THAT H AVING DISPUTES WITH THE EARLIER AUDITOR AND TAKING DECISION IN THE EXTR A ORDINARY GENERAL MEETING THE ASSESSEE APPOINTED A NEW AUDITOR ON 20-12-2010. DUE TO NON- COOPERATION OF EARLIER AUDITOR, THE ASSESSEE COULD NOT FILE THE RETURN OF INCOME WITHIN TIME SPECIFIED U/S. 139(1) OF THE ACT . THE SAID DELAY AS ALLEGED BY THE AO WAS BEYOND THE CONTROL OF THE ASS ESSEE. THE ASSESSEE FURTHER CONTENDED THAT THE AO DID NOT ISSUE NOTICE EITHER IN SECTION 139 OR 142 OF THE ACT REQUIRING THE ASSESSEE TO FILE RETUR N OF INCOME WITHIN DUE DATE. THE AO BY ASSUMING HIS JURISDICTION U/S. 148 /147 OF THE ACT INITIATED THE PENALTY PROCEEDINGS U/S. 271F OF THE ACT. IN RE SPONSE TO WHICH, THE ASSESSEE FILED ITS RETURN WITHIN DUE DATE FIXED AS PER NOTICE ISSUED U/S. 148 AND CONTENDED THAT THERE WAS NO DELAY IN FILING TH E RETURN OF INCOME AND AS SUCH THE ASSESSEE DID NOT HAVE ANY LIABILITY TO FUR NISH THE RETURN OF INCOME U/S. 139(1) OF THE ACT. 15. THE CIT-A CONSIDERING THE SUBMISSIONS OF THE AS SESSEE CONFIRMED THE ACTION OF THE AO IN LEVYING THE SAID PENALTY BY OBS ERVING AS UNDER:- 9 ITA NOS 331 TO 336/KOL/2016 M/S. CARE CONCERN HOSPITAL P.LTD. & ORS. 5. DECISION: THE RELEVANT ISSUE, IN RESPECT OF THE PENALTY U/S.2 71F, HAS BEEN DISCUSSED WITH THE LD,A/R OF THE APPELLANT AND THE SUBMISSION, IN THIS REGARD, VIDE LETTER NO.JNB/68/1S-16 DT.26,08.15 IS ALSO REFERRED. 5.2 THE PROVISIONS OF THE I.T. ACT, IN RESPECT OF P ENALTY U/S,271F, IS VERY CLEAR AS THE DATES FOR THE FILING OF RETURN HAS BEEN DULY FIXED AND KNOW TO THE APPELLANT. HOWEVER, THE APPELLANT HAD NOT FILED RETURN OF INCOME IN TIME. S INCE, THE ASSESSEE HAD NOT FILED ITS RETURN OF INCOME BEFORE DUE DATE OR EVEN TILL THE E ND OF THE RELEVANT A.Y., THE A,O 'HAD NO ALTERNATIVE BUT TO INITIATE PENALTY PROCEEDING U /S.271F AND EXAMINE THE FACTS. THE A,O. HAD DULY ISSUED NOTICE ON 27.12.2011 OF HEARIN G BUT THERE WAS NO COMPLIANCE. IT IS ALSO SEEN THAN THERE WAS NEITHER ANY INTIMATION/APP LICATION FOR ADJOURNMENT FROM THE ASSESSEE NOR ANY CLARIFICATION IN RESPECT OF LATE F ILING OF RETURN, THE RECORDS SHOW THAT ANOTHER NOTICE OF HEARING, IN RESPECT OF PENALTY PR OCEEDING U/S 271F, ON 20.04,2012 BUT AGAIN THERE WAS NEITHER ANY REQUEST FOR ADJOURNMENT NOR ANY EXPLANATION WAS SUBMITTED. IN SUCH SITUATION THE A.O. HAD NO ALTERN ATIVE BUT TO IMPOSE PENALTY FOR THE LATE FILING OF RETURN. 5.3. THE LD. A/R OF THE APPELLANT ARGUED THAT 'THE ASSESSEE HAD SOME DIFFERENCE OF OPINION WITH THE AUDITORS AND DUE TO THAT REASON, T HE AUDITORS DID NOT CARRY OUT THE AUDIT NOR SUBMITTING ANY REPORT FOR QUITE SOME TIME. HE A LSO ARGUED THAT THE DELAY IN THE FILING OF RETURN WAS DUE TO REASONABLE CAUSE WHICH IS BEYO ND THE CONTROL OF MANAGEMENT. THE A/R ALSO ARGUED THAT THE ASSESSEE HAD LOSS IN ITS BUSINESS FOR SEVERAL YEARS AND AS SUCH DID NOT HAVE ANY LIABILITY TO FURNISH RETURN OF INC OME U/S,139(1), BASED ON WHICH THE A.O. IMPOSED PENALTY'. 5.4. BOTH THE ARGUMENTS ARE VAGUE AND MISLEADING AS 'DURING THE YEAR OF LOSS IN BUSINESS FOR SEVERAL YEARS' CANNOT BE MADE A GROUND FOR NOT FILING THE RETURN OF INCOME. SIMILARLY DIFFERENCE OF OPINION WITH AUDITOR IS NOT AN ACCEPT ABLE GROUND, BESIDES, THE ASSESSEE NEVER ACCEPTED WITH THE NOTICE U/S,271F WHICH WAS D ULY ISSUED BY THE A.O. AND SERVE ON THE ASSESSEE. 5.6. IN VIEW OF THE ABOVE THE PENALTY IMPOSED U/S,2 71F, BY THE A.O, IS CONFIRMED. 16. THE LD.AR OF THE ASSESSEE REITERATED HIS SUBMIS SIONS AS MADE BEFORE THE CIT-A. HE FURTHER SUBMITS THAT THE ASSESSEE WAS FINANCIALLY DISTRESSED BECAUSE OF HUGE LOSS, RECALLING OF BANK LOAN AND IN ABILITY TO ARRANGE WORKING CAPITAL. THESE HARDSHIPS AND EVENTS WERE UNINTENTI ONAL, BONAFIDE AND BEYOND THE CONTROL OF MANAGEMENT. FOR NON FURNISHIN G THE TAX RETURN WITHIN TIME IS A DEFECT OF TECHNICAL AND VENIAL BREACH OF LAW AND DOES NOT CALL FOR LEVY OF PENALTY. THE AO DID NOT AFFORD OPPORTUNITY TO SUBSTANTIATE THE CLAIM OF THE ASSESSEE AND THE CIT-A DID NOT APPRECIATE TH E DEFECTS AND HARDSHIPS AND DIFFICULTIES OF THE ASSESSEE IN RIGHT PERSPECTI VE AND MECHANICALLY CONFIRMED THE PENALTY IMPOSED BY THE AO. 10 ITA NOS 331 TO 336/KOL/2016 M/S. CARE CONCERN HOSPITAL P.LTD. & ORS. 17. THE LD.DR SUBMITS THAT THE ASSESSEE DID NOT APP EAR BEFORE THE AO TO PUT FORTH HIS ARGUMENTS AND OBJECTIONS IN LEVYING T HE PENALTY. THE ASSESSEE ALTOGETHER HAS TAKEN A NEW PLEA BEFORE THE CIT-A, W HICH IS NOT TENABLE. IN SUPPORT OF HIS CONTENTIONS, RELIED ON THE ORDER OF THE AO AND THE CIT-A. 18. HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIA L AVAILABLE ON RECORD. IT IS OBSERVED FROM THE ASSESSMENT ORDER DT. 27-12- 11, THE ASSESSEE FILED ITS RETURN OF INCOME BY DECLARING TOTAL INCOME OF RS. N IL. THE AO DETERMINED THE LOSS AT RS.5,05,853/- AGAINST THE CLAIM OF LOSS OF RS.8,53,487/- VIDE HIS SAID ORDER U/S. 143(3) OF THE ACT. THE ARGUMENT OF THE L D.AR WAS THAT THE ASSESSEE RUNNING ITS BUSINESS IN LOSSES AND THERE W AS NO LIABILITY TO PAY TAX AND AS SUCH THERE WAS NO LOSS TO THE REVENUE. IT IS ALSO OBSERVED FROM THE RECORD, THAT THE ASSESSEE FILED ABOVE SAID RETURN O F INCOME ONLY IN RESPONSE TO THE NOTICE ISSUED U/S. 148 OF THE ACT. THE LD.AR ALSO SUBMITTED BEFORE US AS DISCUSSED IN THE AFOREMENTIONED PARAS THAT THE D ELAY IN COMPLYING THE STATUTORY REQUIREMENTS WAS CAUSED TO DUE TO DISPUTE S WITH THE EARLIER AUDITOR AND PLEADED BEFORE US THAT IT WAS REASONABL E CAUSE FOR THE SAID FAILURE. WE ALSO NOTE THAT THE SAID DELAY CAUSED ON LY IN THE A.YS 2009-10 & 10-11. NO DOUBT THE SUB-SECTION (1) OF SECTION 139 OF THE ACT PROVIDES A TIME LIMIT TO FILE THE RETURN OF INCOME FOR EVERY P ERSON AND THE PROVISO ALSO TO SAID SUB-SECTION PROVIDES TIME LIMIT TO FILE RET URN OF INCOME AT THE END OF RELEVANT A.Y I.E.31-03-2010 FOR THE YEAR UNDER CONS IDERATION. THEREFORE, THE QUESTION REMAINS BEFORE US FOR OUR CONSIDERATION WH ETHER THE DELAY CAUSED IN FILING THE RETURN OF INCOME IS REASONABLE OR NOT . WE NOTE THAT THE DELAY IN FILING THE RETURN OF INCOME WAS EXPLAINED BY THE AS SESSEE BEFORE THE AUTHORITIES, WHICH HAVE NOT BEEN CONSIDERED BY THEM IN THEIR RIGHT PERSPECTIVE IN TERMS OF SECTION 273B OF THE ACT. TH E SAID SECTION EXPLAINS NO PENALTY SHALL BE IMPOSABLE ON THE PERSON OR THE ASS ESSEE PROVES THAT THERE WAS REASONABLE CAUSE FOR ANY FAILURE IN TERMS OF SE CTION 271F OF THE ACT. WE 11 ITA NOS 331 TO 336/KOL/2016 M/S. CARE CONCERN HOSPITAL P.LTD. & ORS. NOTE THAT THE SAID BURDEN IN TERMS OF SECTION 273B WAS DISCHARGED BY THE ASSESSEE BY ADDUCING REASONABLE CAUSE FOR THE SAID FAILURE. THEREFORE, IN OUR OPINION BY READING THE SECTION 271F AND 273B OF THE ACT CONJOINTLY NO PENALTY IS INVITED IN THE PRESENT CASE. THEREBY, IN SUCH PECULIAR CIRCUMSTANCES, WE CANCEL THE PENALTY OF RS.5,000/- AS IMPOSED BY THE AO AND CONFIRMED BY THE CIT-A. THE GROUND RAISED BY TH E ASSESSEE IN THIS REGARD IS ALLOWED. THUS, THE APPEAL OF ASSESSEE IN ITA NO. 335/KOL/2016 FOR THE A.Y 2009-10 IS ALLOWED. ITA NO. 336/KOL/2016 A.Y 2010-11 BY M/S. CARE CONC ERN HOSPITAL P.LTD. 19. WE FIND THAT THE AO IN THIS CASE ON SIMILAR SET OF FACTS AND CIRCUMSTANCES IMPOSED PENALTY OF RS.5,000/- U/S. 27 1F OF THE ACT. THE ASSESSEE MADE SAME SUBMISSIONS AS ADVANCED IN A.Y 2 009-10 BEFORE THE CIT-A AND THE CIT-A CONFIRMED THE PENALTY ON THE SA ME SET OF FACTS. A VIEW WAS TAKEN ON SIMILAR ISSUE IN AFOREMENTIONED PARAS IN ITA NO. 335/KOL/2016 FOR THE A.Y 2009-10 BY DISMISSING THE ORDER OF THE CIT-A. THEREFORE, WE ADOPT THE SAME VIEW IN ITA NO.336/KOL/2016 FOR THE A.Y 2010-11 BY THE SAME ASSESSEE. THEREFORE, THE PENALTY IMPOSED RS.5 ,000/- BY THE AO AND CONFIRMED BY THE CIT-A IS CANCELLED. THE GROUND RAI SED BY THE ASSESSEE IN THIS REGARD IS ALLOWED. THUS, THE APPEAL OF ASSESSE E ITA NO.336/KOL/2016 FOR THE A.Y 2010-11 IS ALLOWED. ITA NO. 332/KOL/2016 FOR THE A.Y: 2010-11 BY TITAS B ANDOPADHYAY 20. THE AO INITIATED THE PROCEEDINGS U/S. 271(1)(B) OF THE ACT FOR NON SUBMISSIONS OF SPECIFIC DOCUMENTS AND EVIDENCES SOU GHT U/S. 142(1) OF THE ACT. THE AO IMPOSED PENALTY OF RS.10,000/- FOR NON- COMPLIANCE OF NOTICE ISSUED U/S. 142(1) OF THE ACT. 12 ITA NOS 331 TO 336/KOL/2016 M/S. CARE CONCERN HOSPITAL P.LTD. & ORS. 21. BEFORE THE CIT-A THE ASSESSEE CONTENDED THAT TH E AO FAILED TO MAKE OUT SPECIFIC CHARGE SHOWING DEFAULT IN THE NOTICE I SSUED U/S. 271(1)(B) OF THE ACT. THE CIT-A OBSERVED THAT THE ASSESSEE COULD NOT SUBMIT ANY REASON FOR NON COMPLIANCE OF THE SAID NOTICE BEFORE THE AO AND ACCORDINGLY, THE CIT-A CONFIRMED THE ACTION OF THE AO IN IMPOSING THE SAME AS UNDER:- THE A.R. HAS SUBMITTED THAT, 'THE ASSESSEE ENTRUSTE D APPEARANCE/ATTENDANCE IN HEARING BEFORE THE AO TO HIS AUTHORIZED REPRESENTATIVE BY POWER OF ATTORNEY. THE ASSESSEE WAS UNDER THE IMPRESSION THAT THE HEARINGS WERE BEING APPROPRIATE LY ATTENDED.' IT IS PERTINENT TO MENTION THAT THE ONUS TO ENSURE COMPLIANCE IS ON THE ASSESSEE AN D ASSESSEE'S CLAIM THAT AR IS RESPONSIBLE IS NOT CORRECT. THE AR ALSO ARGUED THAT 'THE NOTICE CO NVEYING OF HEARING PENALTY DID NOT CONTAIN EXACTLY FOR WHICH DEFAULT U/S.271(1)(B), THE PENALT Y IS BEING PROPOSED TO BE LEVIED.' BUT THE LD. AR, HAS NOT SUBMITTED AS TO WHY THERE WAS NO COMPLI ANCE. THE RELEVANT RECORDS SHOW THAT 'PENALTY PROCEEDINGS U/S.271(1)(B) WAS DULY INITIAT ED ON 29.12.2011 FOR NON-COMPLIANCE OF NOTICES U/S.142(1) OF THE IT, ACT, 1961. THE CASE W AS AGAIN FIXED FOR HEARING ON 11.04.2012 BUT THERE WAS NO COMPLIANCE ON THE PART OF THE ASSESSEE . IT IS PERTINENT TO MENTION THAT ASSESSEE NEVER INTIMATED THE ASSESSING OFFICER ABOUT THE REA SON FOR NON- COMPLIANCE. THE ASSESSEE NEVER SOUGHT ADJOURNMENT OF THE HEARING SO THAT THE AO WOULD HAVE KNOWN AND FIXED THE HEARING AS PER THE CONVENIENCE OF THE ASSESSEE. IN VIEW OF ASSESSEE'S NON-COMPLIANCE, THE AO HAD NO OTHER ALTERNATIVE BUT TO IMPOSE PENALTY U/S. 271(1)(B) OF THE 1. T. ACT AND THE SAME IS CONSIDERED TO BE CORRECTLY IMPOSED. 22. THE LD.AR SUBMITS THAT THE ASSESSEE COMPLIED WI TH THE NOTICE ISSUED U/S. 142(1) OF THE ACT AND THERE WAS NO ALLEGATION OF NON COMPLIANCE IN THE ASSESSMENT ORDER. HE REFERRED TO ASSESSMENT ORDER A ND ARGUED THAT THE ASSESSEE PRODUCED BOOKS OF ACCOUNT AND OTHER RELEVA NT DOCUMENTS IN SUPPORT OF THE RETURN. THE AO EXAMINED THE SAME THO ROUGHLY AND PASSED HIS ORDER U/S. 143(3)/147 OF THE ACT. THE LD.AR ALSO SU BMITS THAT HAVING COMPLETED THE ASSESSMENT U/S. 143(3) OF THE ACT, WH ICH CLEARLY SHOWS THAT THERE WAS FULL COMPLIANCE ON BEHALF OF THE ASSESSEE REGARDING REQUIREMENTS AS SOUGHT BY THE AO IN THE SAID PROCEEDINGS. THE AR PLACED HIS RELIANCE ON THE DECISION OF ITAT, NEW DELHI IN THE CASE OF GLOB US INFOCOM LTD AND REFERRED TO PARA 3 OF THE SAID ORDER AND ARGUED THA T THE DELHI TRIBUNAL BY PLACING RELIANCE IN THE CASE OF AKHIL BHARTIYA PRAT HMIK SHIKSHAK SANGH BHAWAN TRUST VS. ACIT REPORTED IN (2008) 5 DTR (DE L) 429, HELD THAT IMPOSITION OF PENALTY U/S. 271(1)(B) OF THE ACT WAS PATENTLY WRONG IN VIEW OF THE FACT THAT THE IMPUGNED ASSESSMENT ORDER WAS PAS SED U/S. 143(3) OF THE 13 ITA NOS 331 TO 336/KOL/2016 M/S. CARE CONCERN HOSPITAL P.LTD. & ORS. ACT. THE LD. AR PRAYED TO ALLOW THE GROUND OF APPEA L IN THIS REGARD AND CANCEL THE PENALTY IMPOSED BY THE AO U/S. 271(1)(B) OF THE ACT. 23. THE LD.DR SUBMITS THAT THERE WERE TWO INSTANCES WHERE THE ASSESSEE DID NOT COMPLY THE NOTICE ISSUED U/S. 142(1) OF THE ACT AND REFERRED TO PARA 1 OF THE PENALTY ORDER. THE LD.DR ALSO SUBMITS THAT THE ASSESSEE FAILED TO GIVE VALID REASONS FOR NON COMPLIANCE OF THE NOTICE ISSUED U/S. 142(1) OF THE ACT. THE LD. DR ARGUED THAT IT IS A FIT CASE FOR I MPOSING THE PENALTY AND THE AO RIGHTLY IMPOSED THE SAME, WHICH WAS CONFIRMED BY THE CIT-A AND IT IS JUSTIFIED. 24. HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIA L ON RECORD. WE FIND THAT THE ASSESSMENT ORDER DT. 29-12-2011 PASSED U/S . 147/143(3), WHEREIN WE NOTICED THAT THERE WAS NO ALLEGATION OF NON COMP LIANCE WAS MADE BY THE AO. IT IS OBSERVED THAT THE ASSESSEE THROUGH HIS AR COMPLIED WITH THE NOTICE AND BOOKS AND OTHER RELEVANT DOCUMENTS WERE FILED, WHICH WERE EXAMINED BY THE AO. WE FIND THAT THE LD.AR HAS RIGHTLY POINT ED OUT THAT THERE WAS NO ALLEGATION BY THE AO IN NOT COMPLYING WITH THE NOTI CE. WE FIND THAT THE FACTS AND CIRCUMSTANCES IN THE CASE OF DELHI TRIBUNAL ARE SIMILAR WITH THAT OF PRESENT CASE AND THE SAME IS REPRODUCED HEREIN BELO W: 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT THE INSTANT APPEAL IS SQUARELY COVERED BY THE DECISION OF THE CO-ORDINATE BENCH OF ITAT DELHI IN THE CASE OF AKHIL BHARTIYA P RATHMIK SHIKSHAK SANGH BHAWAN TRUST VS ACIT 5 DTR 429 (DELHI TRIBUNAL) WHEREIN TH E COORDINATE BENCH IN PARAS 2.4 AND 2.5 HAS HELD AS UNDER:- I.T.A. NO. 738/DEL/2014 ASSESSMENT YEAR 2010-11 '2. 4 COMING TO THE ISSUE OF RECORDING OF SATISFACTION, IT MAY BE MENTIONED THAT MERE INITIATION OF PENALTY DOES NOT AMOUNT TO SATISFACTION AS HELD BY HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. RAM COMMERCIAL ENTERPRISES LTD . (2001) 167 CTR (DEL) 321 : (2000) 246 ITR 568 (DEL). IN ABSENCE OF RECORDING OF THE SATISFACT ION IN THE ASSESSMENT ORDER, MERE INITIATION OF PENALTY WILL NOT CONFER JURISDIC TION ON THE AO TO LEVY THE PENALTY. 2.5 WE ALSO FIND THAT FINALLY THE ORDER WAS PASSED UNDER S. 143(3) AND NOT UNDER S. 144 OF THE ACT. THIS MEANS THAT SUBSEQUENT COMPLIANCE IN THE ASSESSMENT PROCEEDINGS WAS CONSIDERED AS GOOD COMPLIANCE AND T HE DEFAULTS COMMITTED EARLIER WERE IGNORED BY THE AO. THEREFORE, IN SUCH CIRCUMST ANCES, THERE COULD HAVE BEEN NO REASON TO COME TO THE CONCLUSION THAT THE DEFAUL T WAS WILLFUL.' 14 ITA NOS 331 TO 336/KOL/2016 M/S. CARE CONCERN HOSPITAL P.LTD. & ORS. 6. AS THE FACTS OF THIS CASE ARE IDENTICAL, WE HOLD THAT THE IMPOSITION OF PENALTY U/S 271(1)(B) OF THE ACT WAS PATENTLY WRONG, SPECIALLY IN VIEW OF THE FACT THAT THE IMPUGNED ASSESSMENT ORDER HAS BEEN PASSED U/S 143(3 ). WHILE SETTING ASIDE THE IMPUGNED ORDER, WE DIRECT THE ASSESSING OFFICER TO DELETE THE PENALTY. 25. IN VIEW OF ABOVE, WE CANCEL THE IMPUGNED PENALT Y IMPOSED BY THE AO AND CONFIRMED BY THE CIT-A. THUS, THE GROUND OF APPEAL OF THE ASSESSEE ARE ALLOWED. THE APPEAL ITA NO.332/KOL/2016 FOR THE A.Y 2010-11 IS ALLOWED. ITA NO.333/KOL/2016 A.Y 2010-11 BY ARUP BANDYOPADHY AY 26. WE FIND THAT THE AO IN THIS CASE ON SIMILAR SET OF FACTS AND CIRCUMSTANCES IMPOSED PENALTY OF RS.10,000/- U/ S. 271(1)(B) OF THE ACT AND THE CIT-A CONFIRMED THE PENALTY ON THE SAME SET OF FACTS. A VIEW WAS TAKEN IN FAVOUR OF THE ASSESSEE ON SIMILAR ISSUE B Y US IN AFOREMENTIONED PARAS IN ITA NO. 332/KOL/2016 FOR THE A.Y 20010-11 BY DISMISSING THE ORDER OF THE CIT-A. THEREFORE, WE ADOPT THE SAME VIEW IN ITA NO.333/KOL/2016 FOR THE A.Y 2010-11 BY THE ASSESSEE, SRI ARUP BANDYOPAD HYAY. THEREFORE, THE PENALTY IMPOSED RS.10,000/- BY THE AO AND CONFIRMED BY THE CIT-A IS CANCELLED. THE GROUND RAISED BY THE ASSESSEE IN THI S REGARD IS ALLOWED. THEREFORE, THE APPEAL OF ASSESSEE ITA NO.333/KOL/20 16 FOR THE A.Y 2010-11 IS ALLOWED. 27. IN THE RESULT, THE APPEALS IN ITA NO. 331/KOL/2016 FOR A.Y 2009-10, 334/KOL/2016 FOR A.Y 2010-11, ITA NO. 335/KOL/2016 FOR A.Y 2009-10, ITA NO. 336/KOL/2016 FOR A.Y 2010-11 BY M/S. CARE CONCERN H OSPITAL P.LTD, AND, ITA NOS. 332 & 333/KOL/2016 FOR A.Y 2010-11 BY S/SHRI TITAS BANDOPADHYAY & ARUP BANDYOPADHYAY RESPECTIVELY ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT O N 12-01-2018 SD/- SD/- ARJUN LAL SAINI S.S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 12 -01- 2018 15 ITA NOS 331 TO 336/KOL/2016 M/S. CARE CONCERN HOSPITAL P.LTD. & ORS. **PP/SPS COPIES OF THE ORDER FORWARDED TO: (1) THE APPELLANT/ASSESSEE:M/S. CARE CONCERN HOSPIT AL PVT. LTD/SHRI TITAS BAODOPADHYAY/SHRI ARUP BANDOPADHYAY 91/92 RAJA RAMM OHAN ROY SARANI, SERAMPORE, HOOGHLY 712201. (2)THE RESPONDENT/REVENUE: THE ACIT, CIR-1, HOOGHLY , KHADINAMORE, P.O CHINSURAH, DIST HOOGHLY, 712101. (3) COMMISSIONER OF INCOME-TAX (APPEALS)-, KOLK ATA (4) COMMISSIONER OF INCOME TAX, KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE TRUE COPY BY ORDER SR.PS/H.O.O ITAT, KOLKATA