Shri Nimesh Hashmukhlal Shah, Ahmedabad V. The Asstt. Commissioner of Income Tax, Central Circle-2(4), Ahmedabad

ITA 3533/AHD/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5720 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 28-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ANKIT TALSANIA
• Keywords: Reasonable cause
• Section: 142(1); 153A; 27

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER , .., SN ITA NO. AY APPELLANT RESPONDENT 1-7 2535 TO 2541 /AHD/2016 2007-08 TO 2013-14 SHRI NIMESH H. SHAH, M/18, SANSKRUT APARTMENT, NR. ALKAPURI SOCIETY, GHATLODIYA, AHMEDABAD PAN : AHZPS 0504 M ACIT, CENTRAL CIRCLE-2(4), AHMEDABAD 8-14 3530 TO 3536 /AHD/2016 2007-08 TO 2013-14 SHRI NIMESH H. SHAH, GHATLODIYA, AHMEDABAD PAN : AHZPS 0504 M ACIT, CENTRAL CIRCLE-2(4), AHMEDABAD ASSESSEE BY : SHRI ANKIT TALSANIA, AR REVENUE BY : SHRI MUDIT NAGPAL, SR. DR / DATE OF HEARING : 13/07/2017 # % / DATE OF PRONOUNCEMENT: 26/07/2017 / O R D E R PER BENCH : THE PRESENT FOURTEEN APPEALS ARE DIRECTED AT THE IN STANCE OF THE ASSESSEE AGAINST TWO ORDERS OF THE LD. CIT(A)-13, AHMEDABAD DATED 28.06.2016 PASSED FOR ASSESSMENT YEARS 2007-08 TO 2013-14. THE SOLIT ARY ISSUE INVOLVED IN ALL THESE APPEALS IS WHETHER THE ASSESSEE DESERVES TO B E VISITED WITH PENALTY UNDER SECTION 271(1)(B) OF THE INCOME-TAX ACT, 1961 (HERE INAFTER REFERRED TO AS THE ACT) FOR NON-COMPLIANCE OF NOTICE ISSUED UNDER SEC TION 142(1) OF THE ACT DATED 14.10.2014 AND 22.01.2015. 2. THE REGISTRY HAS POINTED OUT THAT THE APPEALS FI LED BY THE ASSESSEE BEARING ITA NOS. 3530 TO 3536/AHD/2016 ARE TIME BAR RED BY 110 DAYS. IT IS PERTINENT TO OBSERVE THAT WE HAVE HEARD ROUGHLY 160 APPEALS OF THE FAMILY MEMBERS INCLUDING A FEW BUSINESS CONCERNS AND, OUT OF THESE, SOME OF THE APPEALS ARE TIME BARRED INCLUDING THE ABOVE REFERRE D APPEALS FILED BY SHRI NIMESH HASHMUKHLAL SHAH. THE LD. COUNSEL FOR THE ASSESSEE HAS FILED ITA NOS. 2535 TO 2541& 3530 TO 3536/AHD/2016 NIMESH H. SHAH VS. ACIT AYS : 2007-08 TO 2013-14 - 2 AFFIDAVITS EXPLAINING THE DELAY IN FILING THE APPEA LS. IT HAS BEEN PLEADED BY HIM THAT SINCE THE ASSESSING OFFICER HAS IMPOSED PENALT Y UNDER SECTION 271(1)(B) OF THE ACT FOR NON-COMPLIANCE OF EACH NOTICE AND HE HA S ISSUED MULTIPLE NOTICES ON THE FAMILY MEMBERS, IT WAS CUMBERSOME EXERCISE TO C OMPILE THE DETAILS OF ALL DOCUMENTS AND PREPARE THE APPEAL IN TIME. AFTER GO ING THROUGH THE EXPLANATION OF THE ASSESSEE, WE ARE CONVINCED THAT HE WAS PROHIBITED BY REASONABLE CAUSE FROM FILING THE APPEALS WITHIN THE SPECIFIED TIME; THEREFORE, WE CONDONE THE DELAY IN FILING THE APPEAL AND PROCEED TO DECIDE THE APPEALS ON MERITS. 3. THE BRIEF FACTS RELATING TO THE CASE ARE THAT A SEARCH UNDER SECTION 132(4) OF THE ACT WAS CARRIED OUT IN THE GROUP CASES OF IN DIA GREEN REALITY PVT. LTD. ON 15.03.2013. THE ASSESSEE WAS ALSO COVERED UNDER TH E SEARCH OPERATION AND A NOTICE UNDER SECTION 153A OF THE ACT WAS ALSO SERVE D UPON THE ASSESSEE IN ALL THESE ASSESSMENT YEARS. THE LD. ASSESSING OFFICER THEREAFTER ISSUED NOTICE UNDER SECTION 142(1) OF THE ACT ON 14.10.2014. THIS NOTI CE WAS NOT REPLIED BY THE ASSESSEE. SIMILARLY, THE ASSESSING OFFICER ISSUED A NOTICE UNDER SECTION 142(1) OF THE ACT ON 22.01.2015 AND THIS NOTICE ALSO REMAI NED UNCOMPLIED WITH. THEREFORE, HE INITIATED PENALTY PROCEEDINGS UNDER S ECTION 271(1)(B) OF THE ACT AND PASSED TWO ORDERS, I.E., DATED 22.04.2015 VIDE WHICH HE IMPOSED PENALTY OF RS.10,000/- FOR VIOLATION OF NOTICE DATED 14.10.201 4 IN EACH ASSESSMENT YEAR (AYS 2007-08 TO 2013-14) AND IN THE SECOND ORDER DA TED 28.08.2015 THE ASSESSING OFFICER IMPOSED PENALTY OF RS.10,000/- IN EACH ASSE SSMENT YEAR (AYS 2007-08 TO 2013-14) FOR VIOLATION OF NOTICE DATED 22.01.2015. 4. LEARNED FIRST APPELLATE AUTHORITY HAS DISPOSED O F THE APPEALS OF THE ASSESSEE IN TWO GROUPS VIDE ORDER DATED 25.07.2016 AND 28.06.2016. IN ONE GROUP VIDE ORDER DATED 25.07.2016, HE DEALT WITH TH E VIOLATION OF NOTICE DATED 14.10.2014 AND IN THE NEXT GROUP VIDE ORDER DATED 2 8.06.2016 HE DEALT WITH THE VIOLATION OF NOTICE DATED 22.01.2015. IN BOTH ORDE RS, THE LD. CIT(A) CONFIRMED THE PENALTY LEVIED BY THE ASSESSING OFFICER U/S. 27 1(1)(B) OF THE ACT IN EACH ITA NOS. 2535 TO 2541& 3530 TO 3536/AHD/2016 NIMESH H. SHAH VS. ACIT AYS : 2007-08 TO 2013-14 - 3 ASSESSMENT YEAR. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN NOW APPEAL BEFORE THE TRIBUNAL. 5. WITH THE ASSISTANCE OF LEARNED REPRESENTATIVES, WE HAVE GONE THROUGH THE RECORD CAREFULLY. WE FIND THAT AS FAR AS NOTICE DA TED 14.10.2014 IS CONCERNED, THERE IS NO EXPLANATION AT THE END OF THE ASSESSEE AS TO WHY HE HAS IGNORED THE STATUTORY NOTICE. IT IS PERTINENT TO OBSERVE THAT ONCE THE ASSESSEE CHOSE NOT TO APPEAR BEFORE THE LD. ASSESSING OFFICER, THEN THE L D. ASSESSING OFFICER OUGHT TO HAVE TAKEN EX-PARTE PROCEEDINGS AGAINST THE ASSESSEE. THEREFORE, WE ARE OF THE VIEW THAT PENALTY IMPOSED QUA NOTICE DATED 14.10.2014 IS CONCERNED, IT IS SUSTAINABLE. IN VIEW OF THE ABOVE DISCUSSION, WE D ISMISS THE APPEALS OF THE ASSESSEE BEARING ITA NOS. 2535 TO 2541/AHD/2016 AND CONFIRM THE PENALTY IMPOSED UNDER SECTION 271(1)(B) OF THE ACT IN AYS 2 007-08 TO 2013-14 FOR NON- COMPLIANCE OF NOTICE DATED 14.10.2014. 6. SINCE WE HAVE ALREADY UPHELD THE IMPOSITION OF P ENALTY LEVIED BY THE ASSESSING OFFICER U/S 271(1)(B) OF THE ACT (SUPRA) FOR THE NON-COMPLIANCE OF NOTICE ISSUED UNDER SECTION 143(2) OF THE ACT DATED 14.10.2014, THE SUBSEQUENT PENALTY LEVIED BY THE ASSESSING OFFICER U/S. 271(1) (B) OF THE ACT FOR THE SAME DEFAULT DOES NOT SURVIVE AS HELD BY THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN ITA NO.6131/DEL/2013 IN THE CASE OF SMT. REKHA RANI VS. DCIT, VIDE ORDER DATED 06.05.2015, REPORTED IN [2015] 60 TAXMANN.COM 131 (DELHI-TRIB), WHEREIN IT WAS HELD THAT PENALTY UNDER SECTION 271(1)(B) CA NNOT BE IMPOSED FOR EACH AND EVERY NOTICE ISSUED UNDER SECTION 143(2), WHICH REM AINED NOT COMPLIED WITH ON PART OF ASSESSEE, BUT IT SHOULD BE RESTRICTED TO FI RST DEFAULT ONLY. WE, THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF CO-ORDINATE BENCH (SUPRA), DELETE THE PENALTY IMPOSED UNDER SECTION 271(1)(B) OF THE ACT IN AY 2007-08 TO 2013-14 FOR NON-COMPLIANCE OF NOTICE DATED 22.01.2015 AND ALLOW THE APPEALS OF THE ASSESSEE FOR ALL THESE ASSESSMENT YEARS. ITA NOS. 2535 TO 2541& 3530 TO 3536/AHD/2016 NIMESH H. SHAH VS. ACIT AYS : 2007-08 TO 2013-14 - 4 7. IN THE RESULT, THE APPEALS OF THE ASSESSEE BEARI NG ITA NOS. 2535 TO 2541/AHD/2016 ARE DISMISSED AND APPEALS OF THE ASSE SSEE BEARING ITA NOS. 3530 TO 3536/AHD/2016 ARE ALLOWED. ORDER PRONOUNCED IN THE COURT ON 26 TH JULY, 2017 AT AHMEDABAD. SD/- SD/- N.K. BILLAIYA (ACCOUNTANT MEMBER) (RAJPAL YA DAV) JUDICIAL MEMBER AHMEDABAD; DATED, 26/07/2017 **BT / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #' / THE RESPONDENT. 3. % ' / CONCERNED CIT 4. ' ) ( / THE CIT(A)- 5. % , % , /DR,ITAT, AHMEDABAD, 6. 1 / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) % ITAT, AHMEDABAD