Smt. Vasantaben J. Shah, Surat V. The ACIT., Central Circle-3, Surat

ITA 3609/AHD/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9384 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 26-02-2016
• Assessment Year: 2013-2014
• Appeal Filed On: 23-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANTOSHI KARNAMI
• Assessee Lawyers: M K PATEL
• Keywords: Reasonable cause
• Section: 143(3); 142(1)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI B.P. JAIN, ACCOUNTANT MEMBER SR. NO. ITA.NO. AND ASSTT.YEAR APPELLANT RESPONDENT 1. 3609 /AHD/2015 A.Y.2013-14 VASANTABEN J. SHAH CHAITANYA VILAS OPP: NARMAD LIBRARY, MODI ROAD GHOD DOD ROAD SURAT 395 007. PAN : AAIFR 7533 F ACIT, CENT.CIR.3 SURAT. 2. 3610/AHD/2015 A.Y.2013-14 MANISHA SUNIL SHAH CHAITANYA VILAS OPP: NARMAD LIBRARY, MODI ROAD GHOD DOD ROAD SURAT 395 007. PAN : ADRPS 0939 G ACIT, CENT.CIR.3 SURAT. 3. 3611 /AHD/2015 A.Y.2013-14 SUNIL JAYANTILAL SHAH CHAITANYA VILAS OPP: NARMAD LIBRARY, MODI ROAD GHOD DOD ROAD SURAT 395 007. PAN : ACIPS 4765 Q ACIT, CENT.CIR.3 SURAT. / (APPELLANT) / (RESPONDENT) ASSESSEE S BY : SHRI M.K. PATEL, AR REVENUE BY : SHRI SANTOSHI KARNAMI, SR.DR / DATE OF HEARING : 26/02/2016 / DATE OF PRONOUNCEMENT: 26/02/2016 / O R D E R ITA NO.3609/AHD/2015 & 2 OTHER APPEALS 2 THESE THREE APPEALS OF ASSESSEEES AROSE FROM DIFFER ENT ORDERS OF LD.COMMISSIONER OF INCOME TAX (APPEALS), SURAT EACH DATED 13.10.2015 IN THE CASES OF ASSESEES, VIZ. VASANTABEN J SHAH, MANI SHA SUNIL SHAH AND SUNIL JAYANTILAL SHAH FOR THE ASSESSMENT YEAR 2013-14. 2. ISSUE IN ALL THE APPEALS IS IDENTICAL, AND THERE FORE, ALL THREE APPEALS ARE BEING TAKEN UP BY THIS CONSOLIDATED ORDER. THE GRO UNDS OF APPEAL ARE ALSO IDENTICAL AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF THE INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN L EVYING PENALTY OF RS. 10,000/- U/S.271(L)(B) OF THE INCOME TAX ACT, 1961. 2. IT IS THEREFORE PRAYED THAT THE ABOVE ADDITION M AY PLEASE BE DELETED AS LEARNED MEMBERS OF THE TRIBUNAL MAY DEEM IT PROPER. 3. APPELLANT CRAVES LEAVE TO ADD, ALTER OR DELETE A NY GROUND(S) EITHER BEFORE OR IN THE COURSE OF THE HEARING OF THE APPEAL. 3. I TAKE UP THE MATTER IN ITA.NO.3609/AHD/2015 IN THE CASE OF VASANTABEN J. SHAH FOR THE ASSTT.YEAR 20131408. MY ORDER HEREINBELOW SHALL BE IDENTICALLY APPLICABLE IN ALL OTHER APPEALS, IN THE CASE OF ALL OTHER ASSESSEES MENTIONED HEREINABOVE. 4. BRIEF FACTS OF THE CASE ARE, AS NARRATED IN THE ORDER OF THE AUTHORITIES BELOW IN THE CASE OF VASANTABEN J. SHAH IN ITA.NO.3 609/AHD/2015 ARE THAT NOTICE UNDER SECTION 142(1) WAS ISSUED ON 3.9.2014 WHEREIN THE ASSESSEE WAS DIRECTED TO FURNISH DETAILS ON THE DATE OF HEARING ON 25.9.2014. THE ASSESSEE FILED ADJOURNMENT LETTER ON 26.9.2014, AND AFTER TH AT, DATE OF HEARING WAS FIXED ON 8.10.2014. HOWEVER ON 8.10.2014 NEITHER THE ASS ESSEE APPLIED FOR ANY ADJOURNMENT NOR APPEARED FOR THE HEARING. ON FAILU RE OF NON-COMPLIANCE, ITA NO.3609/AHD/2015 & 2 OTHER APPEALS 3 NOTICE UNDER SECTION 271(1)(B) WAS ISSUED SHOWING C AUSE FOR PENALTY UNDER SECTION 271(1)(B) SHOULD NOT BE IMPOSED. REPLY OF THE ASSESSEE VIDE LETTER DATED 16.12.2014 WAS UNDER: THEN AR OF THE ASSESSEE SUBMITTED A LETTER ON 16.1 2.2014 STATING THAT DUE TO AUDIT WORK AND ASSESSEE WAS OUT OF STATION THE COMPLIANCE TO THE NOTICE WAS NOT MADE THE AO WAS NOT SATISFIED WITH THE EXPLANATION OF T HE ASSESSEE AND OBSERVED THAT THE ASSESSEE HAS, WITHOUT REASONABLE CAUSE, FAILED TO COMPLY WITH THE NOTICE UNDER SECTION 142(1), AND ACCORDING LY, LEVIED PENALTY OF RS.10,000/- EACH UNDER SECTION 271(1)(B) OF THE ACT , WHICH WAS CONFIRMED BY THE LD.CIT(A). 5. THE LD.COUNSEL FOR THE ASSESSEE, SHRI M.K. PATEL ARGUED AT THE OUTSET THAT THE ASSESSMENT HAS BEEN MADE UNDER SECTION 143 (3) OF THE ACT AND ALL THE DETAILS REQUIRED HAVE BEEN SUBMITTED. THERE IS NO DIFFERENCE IN THE RETURNED INCOME AND THE ASSESSED INCOME. THE ASSESSEE HAS ALSO SUBMITTED EXPLANATION FOR NOT APPEARING ON THE DATE I.E. 8.10 .2014, BECAUSE, THE ASSESSEE WAS OUT OF STATION DUE TO AUDIT WORK. THE LD.COUNS EL FOR THE ASSESSEE RELIED UPON THE DECISION, ON THE IDENTICAL ISSUE, OF THE I TAT, AHMEDABAD BENCH IN THE CASE OF RAJ ENTERPRISES VS. ITO, IN ITA NO.958/ AHD/2011 FOR THE ASSTT.YEAR 2007-08 DATED 4.3.2015 IN THIS REGARD. ACCORDINGLY, HE PRAYED THAT THE IMPUGNED PENALTY MAY BE CANCELLED AND THE ORDER OF THE LD.CIT(A) CONFIRMING THE ACTION OF THE AO BE REVERSED. 6. THE LD.DR, ON THE OTHER HAND, RELIED UPON THE OR DERS OF THE AUTHORITIES BELOW AND ARGUED THAT THE ASSESSEE HAS NOT INTENTIO NALLY CO-OPERATED IN THE ASSESSMENT PROCEEDINGS. ITA NO.3609/AHD/2015 & 2 OTHER APPEALS 4 7. I HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE F ACTS ON RECORD. THE UNDISPUTED FACTS IN THE PRESENT CASE ARE THAT THE A SSESSMENT IN THE PRESENT CASE HAS BEEN MADE AT THE RETURNED INCOME AND NO ADDITIO NS HAVE BEEN MADE. THE ASSESSMENT HAS BEEN MADE UNDER SECTION 143(3) OF TH E ACT AND ALL THE DETAILS REQUIRED UNDER SECTIONS 142(1)/143(2) HAVE BEEN COM PLIED, IS NOT IN DISPUTE. AS REGARDS NON-ATTENDANCE, THE ASSESSEE HAS SUBMITT ED EXPLANATION, WHICH IS FOUND TO BE COGENT EXPLANATION, AND WE FIND A SUFFI CIENT CAUSE IN NOT ATTENDING ON THE DATE OF HEARING I.E. 8.10.2014. THEREFORE, THE AO IS NOT JUSTIFIED IN LEVYING THE PENALTY UNDER SECTION 271(1)(B) OF THE ACT. THE RELIANCE HAS BEEN PLACED ON THE DECISION OF ITAT, AHMEDABAD IN THE CA SE OF RAJ ENTERPRISE (SUPRA), IN WHICH CASE, THE AHMEDABAD BENCH OF THE ITAT HAS RELIED UPON THE DECISIONS OF DELHI BENCH OF THE ITAT IN THE CASE OF AKHIL BHARTIYA PRATHMIK SHIKSHAK SANGH BHAVAN TRUST VS. ACIT, 115 TTJ 419 ( DELHI) AND THE DECISION OF THE AHMEDABAD BENCH OF THE TRIBUNAL IN THE CASE OF SWARNABEN M. KHANNA & OTHERS VS. DCIT, 132 TTJ 1 AND HELD AS UNDER: 6. . WE HAVE GONE THROUGH THE DECISIONS RELIED ON BY THE COUNSEL FOR THE ASSESSEE. IN BOTH THESE DECISIONS, THE TRIB UNAL HELD THAT WHEN AN ASSESSMENT HAS BEEN MADE UNDER SEC.143(3) AND NO T UNDER SEC.144 OF THE I.T. ACT, IT MEANS THAT SUBSEQUENT COMPLIANC E IN THE ASSESSMENT PROCEEDINGS WAS CONSIDERED AS GOOD COMPLIANCE AND T HE DEFAULTS COMMITTED EARLIER WERE IGNORED BY THE ASSESSING OFF ICER AND, THEREFORE, THERE IS NO CASE FOR LEVY OF PENALTY UNDER SEC.271( 1)(B) OF THE ACT. IN THE PRESENT CASE, THE ASSESSEE SEEMS TO HAVE CO- OP ERATED WITH THE ASSESSMENT PROCEEDINGS BY RESPONDING TO THE NOTICES AND FILING INFORMATION CALLED FOR AND THE ASSESSMENT WAS COMPL ETED UNDER SEC.143(3) AND NOT SEC.144 OF THE ACT. THEREFORE, W E HOLD THAT THERE IS NO CASE FOR LEVY OF PENALTY UNDER SEC.271(1)(B) OF THE I.T. ACT THE ASSESSEE'S CASE.' 8. THEREFORE, IN THE CIRCUMSTANCES AND THE FACTS OF THE PRESENT CASE, AND THE FINDING HEREINABOVE AND THE DECISIONS RELIED UP ON, I DIRECT TO CANCEL THE ITA NO.3609/AHD/2015 & 2 OTHER APPEALS 5 PENALTY SO LEVIED BY THE AO AND REVERSE THE ORDER O F THE LD.CIT(A). THUS, ALL THE GROUNDS OF APPEAL IN ITA.NO.3609/AHD/2015 ARE A LLOWED. 9. IN THE RESULT, THE APPEAL BEING ITA.NO.3609/AHD/ 2015 IS ALLOWED 10. NOW I TAKE UP THE OTHER APPEALS, IN THE CASE OF MANISHA S. SHAH BEING IN ITA.NO.3610/AHD/2015 WHERE THE ISSUE IS IDENTICA L, AND MY ORDER HEREINABOVE, IN THE CASE OF VASANTABEN J. SHAH IN I TA.NO.3609/AHD/2015 SHALL BE IDENTICALLY APPLICABLE, AND ACCORDINGLY, A LL THE GROUNDS OF APPEAL IN ITA NO.3609/AHD/2015 ARE ALLOWED. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. 12. NOW, I TAKE UP THE APPEAL IN ITA NO.3611/AHD/20 15 IN THE CASE OF SUNIL J. SHAH. IN THIS APPEAL, THE ISSUE IS IDENTI CAL AS IN THE CASE OF VASANTABEN J. SHAH IN ITA.NO.3609/AHD/2015, AND MY ORDER HEREINABOVE SHALL BE APPLICABLE IN THIS APPEAL, AND ACCORDINGLY , ALL THE GROUNDS OF THE APPEAL ARE ALLOWED. 13. IN THE RESULT, ITA NO.3611/AHD/2015 IS ALLOWED. 14. IN COMBINED RESULT, ALL THE APPEALS OF THE ASSE SEES ARE ALLOWED. ORDER PRONOUNCED IN THE COURT ON 26 TH FEBRUARY, 2016 AT AHMEDABAD. SD/- ( B.P. JAIN ) ACCOUNTANT MEMBER AHMEDABAD; DATED 26/02/2016