Manish Jain, Ghaziabad V. DCIT, Ghaziabad

ITA 3598/DEL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3804 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 4 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-10-2017
• 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
• 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. 3598 /DEL /201 6 A .Y. : 20 05 - 06 I.T.A. NO. 3599 /DEL/2016 A.Y.:2006 - 07 I.T.A. NO. 3600/DEL/2016 A.Y. NO. 2007 - 08 I.T.A. NO.3601 /DEL/2016 A.Y.:20 08 - 09 I.T.A. NO. 3602 /DEL/2016 A.Y.:2009 - 10 I.T.A. NO. 3603 /DEL/2016 A.Y. 20 10 - 1 1 I.T.A. NO. 3603 /DEL/2016 A.Y.:2010 - 11 I.T.A. NO. 3604 /DEL/2016 A.Y.:2011 - 12 MANISH JAIN 12/40, RAJ NAGAR GHAZIABAD PAN : ALOPK3379F VS. DCIT CENTRAL CIRCLE GHAZIABAD [APPELLANT] [RESPONDENT] APPELLANT BY: NONE RESPONDENT BY: SH. B. RAMAN JANEYULU, SR. DR DATE OF HEARING: 26 10 2017 DATE OF PRONOUNCEMENT: 26 10 2017 ITA NOS. 35 98 /DEL/2016 TO 3 604 /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 ). 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 10.09.2012 AND 02.11.2012 FIXING THE COMPLIANCE ON 21.09.2012 AND 20.11.2012 RESPECTIVELY BUT NO COMPLIANCE WAS MADE ON THE SAID DATES. 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. THE ASSESS EE SUBMITTED THAT ON THE SAID DATE HIS REPRESENTATIVE SHRI. P.K. AGARWAL COULD NOT REACH OFFICE AS HIS CAR BROKE DOWN ON WAY TO THE AO S OFFICE. HOWEVER, THE AO WAS NOT SATISFIED WITH THE REPLY OF THE ASSESSEE AND IMPOSED THE PENALTIES UNDE R SECTION 271 (1 )(B) OF THE ACT AMOUNTING TO RS. 10,000/ - FOR EACH OF THE YEARS UNDER CONSIDERATION. 3 . BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LEARNED CIT(A) AND SUBMITTED THAT IN COMPLIANCE TO NOTICE UNDER SECTION 271 (1)(B) OF THE ACT, THE ASSESSEE SUBMI TTED BEFORE THE AO THAT DUE TO BREAK DOWN OF CAR OF HIS ITA NOS. 35 98 /DEL/2016 TO 3 604 /DEL/2016 3 AUTHORISED REPRESENTATIVE COMPLIANCE COULD NOT BE MADE. THE LEARNED CIT(A) OBSERVED THAT THE ASSESSEE HAD NOT 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 CIT 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 CIT DR AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS NOTICED 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 ASIDE THIS ISSUE BACK TO THE FILE OF THE LEARNED CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AF TER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7 . IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ( P RONOUNCE D IN THE OP EN COURT ON 26. 10.2017.) SD/ - SD/ - [ SUCHITRA KAMBLE ] [ N.K. SAINI ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 26 . 10 .2017 SH ITA NOS. 35 98 /DEL/2016 TO 3 604 /DEL/2016 4 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR