RAKESH KUMAR M. GUPTA, MUMBAI V. ITO WD 14(3)(2), MUMBAI

ITA 372/MUM/2013

• Counselvise Citation: 37219914 RSA 2013
• Duration Of Justice: 1 year(s) 8 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 29-09-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 11-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LOVE KUMAR
• Assessee Lawyers: RUSHABH MEHTA
• Keywords: Reasonable cause
• Section: 273B; 142(1)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE HONBLE S/SHRI D. MANMOHAN , VICE-PRESIDENT AND B.R.BASKARAN (AM) , . , . . , ./I.T.A. NOS.371 TO 374./MUM/2013 ( ! ' / ASSESSMENT YEARS : 2003-04 TO 2005-06 AND 2008-09) MR.RAKESHKUMAR M GUPTA, PROP.M/S MANOJ MILLS, SHOP NO.4, RAM GALLY, PANKAJ MARKET, CHAMPA GALLY, CROSS LANE, MUMBAI-400002 / VS. INCOME TAX OFFICER WARD 14(3)(2), EARNEST HOUSE, , NARIMAN POINT, MUMBAI-400021 ( #$ / APPELLANT) .. ( %&#$ / RESPONDENT) # ./ '( ./ PAN/GIRNO.:AAJPG9761F #$ ) / APPELLANT BY : SHRI RUSHABH MEHTA %&#$ * ) /RESPONDENT BY: SHRI LOVE KUMAR + , * -. / DATE OF HEARING : 29.9.2014 /'! * -. /DATE OF PRONOUNCEMENT : 29.9.2014 / O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: ALL THE APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE COMMON ORDER DATED 5.10.2012 PASSED BY LD CIT(A)-25, MUMBA I AND THEY RELATE TO ASSESSMENT YEARS 2003-04 TO 2005-06 AND 2008-09. 2. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LD. CIT(A) IN PARTIALLY CONFIRMING THE PENALTY LEVIED U/S 271(1) (B) OF THE INCOME TAX ACT, 1961 (THE ACT) TO THE EXTENT OF RS.20,000/ - IN EACH OF THE ABOVE SAID YEARS. SINCE THE ABOVE SAID PENALTY WAS LEVIED UNDER IDENTICAL SET OF FACTS, THESE APPEALS WERE HEARD TO GETHER AND THEY ARE BEING DISPOSED OF BY THIS COMMON ORDER, FOR THE SAKE OF CONVENIENCE. I.T.A. NOS.371 TO 374/MUM/2013 2 3. THE FACTS RELATING TO THE ABOVE SAID ISSUE ARE S TATED IN BRIEF. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO INITIATED PENALTY PROCEEDINGS U/S 271(1)(B) OF THE ACT ON THE GROUND THAT THE ASSESSE E DID NOT RESPOND TO VARIOUS NOTICES ISSUED BY THE AO. THE AO ISSUED PENALTY N OTICE U/S 271 (1)( B ) OF THE ACT TWO TIMES FOR ALL THE YEARS UNDER CONSIDERATIO N, I.E., THE FIST NOTICE WAS ISSUED ON 7.12.2010 AND THE SECOND NOTICE WAS ISSUED ON 2 7.12.2010. SUBSEQUENTLY, THE AO LEVIED A PENALTY OF RS.50,000/- FOR EACH OF THE YEARS UNDER CONSIDERATION. BEFORE LD CIT(A), THE ASSESSEE CONTENDED THAT THE P ENALTY PROCEEDINGS U/S 271(1)(B) OF THE ACT WAS INITIATED BY THE AO FOR N ON-COMPLIANCE OF THE NOTICES DATED 6.10.2010 AND 11.11.2010 ISSUED TO THE ASSESS EE. ATTENTION OF THE LD CIT(A) WAS INVITED TO THE LAST PAGE OF THE ASSESSME NT ORDER, WHEREIN THE ABOVE MENTIONED FACT WAS STATED BY THE ASSESSING OFFICER . THE LD CIT(A) NOTICED THAT THE MAXIMUM AMOUNT OF PENALTY PRESCRIBED U/S 271(1) (B) FOR NON-COMPLIANCE OF NOTICE ISSUED BY THE AO WAS RS.10,000/-. SINCE THE AO HAS LEVIED THE IMPUGNED PENALTY IN RESPECT OF TWO NOTICES ONLY, THE LD. CIT (A) REDUCED THE AMOUNT OF PENALTY TO RS.20,000/- PER YEAR. STILL AGGRIEVED , THE ASSESSEE HAS FILED THESE APPEALS BEFORE US. 4. DURING THE COURSE OF HEARING, THE LD. COUNSEL AP PEARING FOR THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER HAS LEVIED IDE NTICAL PENALTY OF RS.50,000/- IN THE CASE OF ASSESSEES WIFE SMT. HEMA RAKESHKUMAR M GUPTA ALSO. THE LD CIT(A) REDUCED THE PENALTY AMOUNT TO RS.20,000/- PE R YEAR AND IN FURTHER APPEAL FILED BEFORE THE ITAT, THE TRIBUNAL HAS DELETED THE PENALTY IN ALL THE YEARS. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE FAC TS AND CIRCUMSTANCES PREVAILING IN THE INSTANT CASE, I.E., THE DATE OF NOTICES, THE DETAILS OF COMPLIANCE WITH THE SAID NOTICES ARE IDENTICAL WITH THE FACTS THAT PREVAILED IN THE CASE SMT.HEMA RAKESHKUMAR M GUPTA. THE LD. COUNSEL FOR THE ASSESSEE ALSO FURNISHED A COPY OF THE ORDER DATED 27.8.2014 PASSE D BY THE TRIBUNAL IN ITA NO.381 TO 385/MUM/2013 IN HEMA RAMESHKUMAR M GUPTA V/S ITO (AYS 2003- 04 TO 2006-07 AND 2008-09). THE LD. DR ALSO CONFI RMED THAT THE FACTS AND THE DETAILS OF NOTICES ETC ARE IDENTICAL IN BOTH THE CA SES. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND CAREFUL LY PERUSED THE RECORD. WE NOTICE THAT THE LD CIT(A) HAS CONFIRMED THE PENA LTY TO THE EXTENT OF RS.20,000/- FOR FAILURE TO COMPLY WITH THE NOTICES ISSUED BY THE ASSESSING OFFICER ON 06.10.2010 AND 11.11.2010. THE NOTICE DATED 6. 10.2010 IS THE NOTICE ISSUED I.T.A. NOS.371 TO 374/MUM/2013 3 U/S 143(2) OF THE ACT AND THE NOTICE DATED 11.11.20 10 IS THE NOTICE ISSUED SEEKING CERTAIN DETAILS FROM THE ASSESSEE. THE AS SESSEE DID NOT RESPOND TO THE NOTICE ISSUED ON 06.10.2010. HOWEVER, IN RESPONSE TO THE NOTICE ISSUED ON 11.11.2010, THE ASSESSEE HAD FILED CERTAIN DETAILS. 6. IT IS PERTINENT TO NOTE THAT THE AO HAD ALRE ADY ISSUED A NOTICE EARLIER U/S 143(2) OF THE ACT, I.E., THE SAID NOTICE WAS DATED 24.9.2010. IN THE CAE OF MRS. HEMA RAKESH KUMAR M GUPTA (SUPRA) ALSO, THE ASSESSI NG OFFICER HAD ISSUED TWO NOTICES U/S 143(2) OF THE ACT AND LEVIED PENALTY U/ S 271(1)(B) OF THE ACT IN RESPECT OF THE SECOND NOTICE, TO WHICH THE ASSESSEE THEREIN DID NOT RESPOND. THE CO- ORDINATE BENCH OF THE TRIBUNAL, IN THE CASE OF MR S. HEMA RAKESHKUMAR M GUPTA (SUPRA), HAS APPRECIATED THE FACTUAL POSITION DISCUSSED ABOVE AND EXPRESSED THE VIEW THAT THERE WAS NO NECESSITY FOR ISSUING A FRESH NOTICE DATED 6.10.2010 U/S 143(2) OF THE ACT SECOND TIME, WHEN T HE EFFECT OF FIRST NOTICE WAS STILL LIVE REQUIRING COMPLIANCE BY THE ASSESSEE. A CCORDINGLY, THE TRIBUNAL HAS EXPRESSED THE VIEW THAT THERE IS NO CASE FOR LEVYIN G PENALTY FOR NON-COMPLIANCE OF NOTICE DATED 6.10.2010 ISSUED U/S 143(2) OF THE ACT, APPARENTLY FOR THE REASON THAT THE SAID NOTICE IS SUPERFLUOUS IN NATURE. SIN CE THE FACTS PREVAILING IN THE INSTANT CASE ARE IDENTICAL IN NATURE, WE ARE INCLIN ED TO ADOPT THE SAME THAT WAS EXPRESSED BY THE CO-ORDINATE BENCH IN THE CASE OF S MT. HEMA RAKESHKUMAR M GUPTA (SUPRA). 7. IN THE CASE OF SMT. HEMA RAKESHKUMAR M GUPTA (SU PRA) ALSO, THE ASSESSING OFFICER HAD ISSUED THE NOTICE U/S 142(1) ON 11.11.2010. WITH REGARD TO THE SAID NOTICE, THE TRIBUNAL HAS NOTED THAT THE AS SESSEE HAD PARTIALLY COMPLIED WITH THE SAME BY FILING A LETTER DATED 19.11.2010 THROUGH TAPAL, THOUGH IT WAS FILED BELATEDLY ON 25.11.2010. THE TRIBUNAL FURTHE R NOTICED THAT THE ASSESSEE HAD SOUGHT TIME IN THE ABOVE SAID LETTER AND THE ASSESS ING OFFICER ALSO HAD GRANTED TIME IN RESPONSE TO THE SAME. ACCORDINGLY, THE TRI BUNAL EXPRESSED THE VIEW THAT THERE WAS SUBSTANTIAL COMPLIANCE BY THE ASSESSEE TO THE NOTICE DATED 11.11.2010 ISSUED BY THE AO. ACCORDINGLY, THE TRI BUNAL EXPRESSED THE VIEW THAT THE ASSESSEE IS SAVED OF PENALTY BY A REASONABLE CA USE IN TERMS OF SECTION 273B OF THE ACT. IN THE INSTANT CASE ALSO, THE AS SESSEE HEREIN HAS FILED A LETTER DATED 19.11.2010 THROUGH TAPAL, THOUGH IT WAS FIL ED BELATEDLY ON 25.11.2010. IN THE SAID LETTER, THE ASSESSEE HAD SOUGHT FURTHER TI ME AND THE ASSESSING OFFICER HAS GRANTED TIME IN RESPONSE THERETO. HENCE, AS PE R THE VIEW TAKEN BY THE CO- I.T.A. NOS.371 TO 374/MUM/2013 4 ORDINATE BENCH, THERE IS SUBSTANTIAL COMPLIANCE TO THE NOTICE ISSUED BY THE AO ON 11.11.2010. HENCE, CONSISTENT WITH THE VIEW TAKEN BY THE CO-ORDINATE BENCH IN THE CASE OF SMT. HEMA RAKESHKUMAR M GUPTA (SUPRA), WE ALSO HOLD THAT THERE WAS NO NECESSITY TO LEVY PENALTY U/S 271(1)(B) OF T HE ACT, SINCE THERE WAS A REASONABLE CAUSE IN TERMS OF SEC. 273B OF THE ACT. 8. THE FACTS PREVAILING IN ALL THE YEARS ARE ID ENTICAL IN NATURE AND HENCE, FOR THE FOREGOING REASONS, WE SET ASIDE THE ORDER OF LD . CIT(A) IN ALL THE YEARS UNDER CONSIDERATION AND DIRECT THE AO TO DELETE THE PENAL TY LEVIED U/S 271(1)(B) OF THE ACT IN ALL THE YEARS. 9. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE A RE ALLOWED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPE N COURT ON 29 TH SEPT, 2014. /'! + 0 1 2 3 29 TH SEPT, 2014 * 4, 5 SD SD ( . / D. MANMOHAN ) ( . . ,/ B.R. BASKARAN) / VICE- PRESIDENT / ACCOUNTANT MEMBER + , MUMBAI: 29 TH SEPT,2014. . . ./ SRL , SR. PS ! ' / COPY OF THE ORDER FORWARDED TO : 1. #$ / THE APPELLANT 2. %&#$ / THE RESPONDENT. 3. + 6- ( ) / THE CIT(A)- CONCERNED 4. + 6- / CIT CONCERNED 5. 6. 784 %- 9 , . 9 ! , + , / DR, ITAT, MUMBAI CONCERNED 4 :, / GUARD FILE. ; + / BY ORDER, TRUE COPY ' (ASSTT. REGISTRAR) . 9 ! , + , /ITAT, MUMBAI