M/s Swarn Overseas (P) Ltd., New Delhi V. DCIT, Ghaziabad

ITA 3580/DEL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3918 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 16-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B RAMANJANEYULU
• Assessee Lawyers: PRAVEEN AGGARWAL
• Keywords: Search and seizure; Opportunity of being heard; Non compliance
• Section: 142(1); 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A , NEW DELHI BEFORE SHRI N.K. SAINI , ACCOUNTANT MEMBER AND BEFORE MS. SUCHITRA KAMBLE , JUDICIAL MEMBER I.T.A. NO. 35 80 /DEL /201 6 A .Y. : 20 05 - 06 I.T.A. NO. 35 81 /DEL/2016 A.Y.:2006 - 07 I.T.A. NO.35 82 /DEL/2016 A.Y.:2007 - 08 I.T.A. NO. 35 83 /DEL/2016 A.Y.:2008 - 09 I.T.A. NO. 35 84 /DEL/2016 A.Y. 2009 - 10 I.T.A. NO. 35 85 /DEL/2016 A.Y.:2010 - 11 I.T.A. NO. 35 86 /DEL/2016 A.Y.:2011 - 12 SWARN OVERSEAS (P) LTD., 1378/21, HARI SINGH NAWLA, NAIWALA, KAROL BAGH, NEW DELHI PAN : AABCS0744H VS. DCIT CENTRAL CIRCLE GHAZIABAD [APPELLANT] [RESPONDENT] APPELLANT BY: SH. PRAVEEN AGGARWAL, C.A. RESPONDENT BY: SH. B. RAMAN JANEYULU, SR. D.R. DATE OF HEARING: 2 4 10 2017 DATE OF PRONOUNCEMENT: 24 10 2017 ITA NOS. 35 80/DEL/2016 TO 3586 /DEL/2016 2 O R D E R PER N.K. SAINI , A.M: THESE APPEAL S BY THE ASSESSEE ARE DIRECTED AGAINST THE CONSOLIDATED ORDER DATED 10.2.2016 OF CIT(A) - IV, KANPUR . THE ONLY GRIEVANCE OF THE ASSESSEE IN THESE APPEALS RELATES TO THE SUSTENANCE OF PENALTY LEVIED BY THE AO UNDER SECTION 271(1)(B) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED AS THE ACT ). DURING THE COURSE OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE MOVED AN APPLICATION FOR ADJ OURNMENT STATING THEREIN AS UNDER: INCOME TAX APPELLATE TRIBUNAL, A BENCH, 10 TH FLOOR, LOK NAYAK BHAWAN KHAN MARKET NEW DELHI - 110003 DEAR SIR, RE: IN THE MATTER OF M/S SWARN OVERSEAS PVT. LTD. PAN NO. AABCS0744H ASSESSMENT YEAR 2005 - 06 TO 2011 - 12 APPEAL NO. 3581 & 3580/DEL/2016 AND 3582 TO 3586/DEL/2016 YOUR HONOUR YOU ARE REQUESTED TO ADJOURN ABOVE CASES FOR ANY DATE AFTER THE FIRST WEEK OF NOVEMBER, 2017 AS THE UNDERSIGNED WHO IS TO APPEAR BEFORE YOUR COURT IS BUSY IN FILING ITR/TAR OF WHICH LAST DATE 31.10.2017 IS FAST APPROACHING. OUR POA IS ALREADY ON YOUR FILE. THANKING YOU, YOURS TRULY SD/ - (P.K. AGGARWAL/ - FCA) PARTNER ON PERUSAL OF THE AFORESAID APPLICATION IT WOULD BE CLEAR THAT THE REASON GIVEN BY THE LEARNED COUNSEL FOR THE ASSESSEE FOR SEEKING THE ITA NOS. 35 80/DEL/2016 TO 3586 /DEL/2016 3 ADJOURNMENT IS NOT A PLAUSIBLE REASON. WE, THEREFORE, REJECT THIS APPLICATION AND THE APPEALS ARE DECIDED EX PARTE AFTER HEARING LEARNED SR. DR ON MERIT. 2 . FACTS OF THE CASE, IN BRIEF, ARE THAT A SEARCH AND SEIZURE OPERATION UNDER SECTION 132 OF THE ACT WAS CARRIED OUT ON 9.9.2010 AT THE OFFICE AND RESIDENTIAL PREMISES OF THE ASSESSEE. THE AO ISSUED NOTICES UNDER SECTION 142(1) READ WITH SECTION 153A OF THE A CT DATED 21.01.2013 FIXING THE COMPLIANCE ON 12.02.2013 BUT NO COMPL IANCE WAS MADE ON THE SAID DATE . THE AO ISSUED THE PENALTY NOTICE DATED 18 .04.2013 UNDER SECTION 271 (1)(B) OF THE ACT AND ASKED THE ASSESSEE TO SHOW CAUSE AS TO WHY THE PENALTY SHOULD NOT BE IMPOSED FOR NON COMPLIANCE. THE SAID NOTICE ALSO REMAINED UNCOMPLIED . THE AO AGAIN GAVE AN OPPORTUNITY OF HEARING THROUGH NOTICE DATED 23.08.2013 FIXING THE DATE 4.9.2013. 3 . BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LEARNED CIT(A) AND S UBMITTED THAT IN COMPLIANCE TO NOTICE UNDER SECTION 271 (1)(B) OF THE ACT, THE ASSESSEE SUBMITTED BEFORE THE AO THAT DUE TO BREAK DOWN OF CAR OF HIS AUTHORISED REPRESENTATIVE COMPLIANCE COULD NOT BE MADE. THE LEARNED CIT(A) OBSERVED THAT THE ASSESSEE HAD N OT GIVEN ANY REASON BEFORE THE AO AS TO WHY THE PENALTY SHOULD BE DROPPED. HE, THEREFORE, DID NOT FIND MERIT IN THE SUBMISSIONS OF THE ASSESSEE AND CONFIRMED THE PENALTY LEVIED BY THE AO. 4. NOW, THE ASSESSEE IS IN APPEAL. 5. THE LEARNED SR. DR STRONGLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE ASSESSEE DID NOT COMPL Y THE NOTICES ISSUED BY THE AO THEREFORE PENALTY WAS RIGHTLY LEVIED FOR NON COMPLIANCE OF THE NOTICE ISSUED BY THE AO. 6. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNED SR. DR AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS NOTICED ITA NOS. 35 80/DEL/2016 TO 3586 /DEL/2016 4 THAT THE SUBMISSIONS OF THE ASSESSEE ON THE MERIT FOR NON LEVY OF PENALTY UNDER SECTION 271 (1)(B) OF THE ACT HAS NOT BEEN DISCUSSED. IT IS ALSO NOT CLEAR AS TO WHETHER THE ASSESSEE FURNISHED ANY SUBMISSI ONS FOR EXPLAINING THE REASONS F OR NON APPEARANCE ON THE DATE S FIXED BY THE AO FOR HEARING. WE, THEREFORE, IN THE ABSENCE OF RELEVANT MATERIAL ON THE RECORD DEEM IT APPROPRIATE TO SET ASID E THIS ISSUE BACK TO THE FILE OF THE LEARNED CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7 . IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE S. P RONOUNCE D IN THE OP EN COURT AT THE TIME OF HEARING ITSELF I.E. ON 2 4 .10.2017 SD/ - SD/ - [ SUCHITRA KAMBLE ] [ N.K. SAINI ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 4 . 10 .2017 SH COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR