NILESH RAKESHKUMAR GUPTA, MUMBAI V. ITO WD 14(3)(2), MUMBAI

ITA 380/MUM/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2020 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 9 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 25-02-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 11-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIPH
• Keywords: Reasonable cause
• Section: 273B; 142(1); 27

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B , MUMBAI , , , BEFORE SHRI JOGINDER SINGH, J UDICIAL M EMBER , A ND SHRI RAM IT KOCHAR , A CCOUNTANT M EMBER ITA NO . 375 TO 379 /MUM/20 13 ASSESSMENT YEAR: 200 3 - 04 TO 2006 - 07 & 2008 - 09 MR. MOHIT RAKESHKUMAR GUPTA, PROP. M/S. ASTHA SILK INDUSTRIES, SHOP NO. 4, RAM GALLY, PANKAJ MARKET, CHAMPA GALLY, CROSS LANE, MUMBAI - 02 / VS. IT O, WARD - 14(3)(2), MUMBAI. ( /ASSESSEE) ( / REVENUE) P.A. NO. AFUPG 9014 P AND ITA NO .380/MUM/2013 ASSESSMENT YEAR: 2008 - 09 MR. NILESH RAKESHKUMAR GUPTA , PROP. M/S. DEV VANI INDUSTRIES , SHOP NO. 4, RAM GALLY, PANKAJ MARKET, CHAMPA GA LLY, CROSS LANE, MUMBAI - 02 / VS. ITO, WARD - 14(3)(2), MUMBAI. ( /ASSESSEE) ( / REVENUE) P.A. NO. AFUPG 9 510 N MOHIT RAKESHKUMAR GUPTA & NILESH RAKESHKUMAR GUPTA ITA NO S . 375 TO 380/MUM/2013 2 / REVENUE BY SHRI NEIL PHILIPH - DR / ASSESSEE BY SHRI VIMAL PUN A MIYA / DATE OF HEARING : 02 /1 1 /201 6 / DATE OF ORDER : 02/ 1 1 /2016 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THIS BENCH OF SIX APPEALS IS BY DIFFERENT ASSESSEES , ARE AGGRIEVED BY THE IMPUGNED ORDER DATED 05 / 1 0 /201 2 OF THE LD.FIRST APPELLATE AUTHORITY, MUMBAI - 25 . 2. THE ONLY COMMON GROUND RAISED IN THE PRESENT APPEALS IS WITH RESPECT TO CONFIRMING THE PENALTY LEVIED UNDER SECTION 271(1)(B) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT). DURING HEARING, THE LEA RNED COUNSEL FOR THE ASSESSEE SHRI VIMAL PUN A MIYA CLAIMED THAT THE IMPUGNED ISSUE IS COVERED IN THE CASE OF ASSESSEE ITSELF VIDE ORDER DATED 29/09/2014 (ITA NOS. 371 TO 374/MUM/2013) AND IN THE CASE OF HEMA RAKESHKUMAR GUPTA (ITA NOS. 381 TO 385/MUM/2013 ORDER DATED 27/08/2014, FROM THE TRIBUNAL . THIS FACTUAL MATRIX WAS NOT CONTROVERTE D BY LD . DR SHRI NEIL PHILIPH. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW OF THE MOHIT RAKESHKUMAR GUPTA & NILESH RAKESHKUMAR GUPTA ITA NO S . 375 TO 380/MUM/2013 3 ABOVE, WE ARE REPRODUCING HEREUNDE R THE RELEVANT PORTION FROM THE ORDER OF THE TRIBUNAL DATED 29/09/2014 FOR READY REFERENCE AND ANALYSIS . 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND CAREFULLY PERUSED THE RECORD. WE NOTICE THAT THE LD CIT(A) HAS CONFIRMED THE PENALTY 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 U/S 143 (2) O F THE ACT AND THE NOTICE DA TED 1 1 . 11 . 2010 IS THE NOTICE ISSUED S EEKING CE RT A I N DE T AI L S F R OM THE ASSESSEE . THE ASSESSEE DID NOT RESPOND TO T H E N OTICE I SS U ED ON 0 6 .1 0 . 2010 . HOWEVE R, IN R ESPONSE TO THE NOT I CE I SSUED ON11 11 . 20 1 0 , THE ASSESSEE HAD FILED CERTA I N DETAILS. 6 . IT IS PERTINENT TO NOTE THAT THE AO HAD ALREADY ISSUED A NOTICE EARLIER U/S 143(2) OF THE ACT, I . E. , THE SAID NOTICE WAS DATED 24 . 9 . 2010 . IN THE CASE OF MRS. HEMA RAKESH KUMAR M GUPTA (SUPRA) ALSO , THE ASSESSING 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 MRS . HEMA RAKESHKUMAR M GUPTA (SUPRA) , HAS APPRECIATED THE FACTUAL POSITION DISCUSSED ABOVE . AND EXPRESSED THE VIEW THAT THERE WAS NO NECES SITY FOR ISSUING A FRESH NOTICE DATED 6.10.2010 U/S 143(2) OF THE ACT SECOND TIME, WHEN THE EFFECT OF FIRST NOTICE WAS ST I LL L I VE REQU IR ING COMPL I ANCE BY THE ASSESSEE. ACCORDINGLY, THE TRIBUNAL HAS EXPRESSED THE VIEW THAT THERE IS NO CASE FOR LEVYING PENA LTY 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 . SINCE THE FACTS PREVAILING IN THE INSTANT CASE ARE IDENTICAL IN NATURE , WE ARE INC L INED TO ADOPT THE SAM E THAT WAS EXPRESSED BY THE CO - ORDINATE BENCH I N THE CASE OF SMT . HEMA RAKESHKUMAR M (SUPRA) . 7. IN THE CASE OF SRNT . HERNA RAKESHKURNAR M GUPTA (SUPRA) ALSO, THE ASSESSING OFF I C ER H A D ISSUED THE NOTICE U/ S 142(1) ON 11.11 . 2010. WITH REGARD TO THE SAID NOTICE, THE TRIBUNAL HAS NOTED THAT THE ASSESSEE HAD PARTIALLY COMPLIED WI T H THE S A ME B Y FI L I NG A LET T ER DATED 19 . 11 . 2010 MOHIT RAKESHKUMAR GUPTA & NILESH RAKESHKUMAR GUPTA ITA NO S . 375 TO 380/MUM/2013 4 THROUGH ' TAPAL', THOUGH IT WAS F ILED BELA T EDLY ON 25.11.201 0 . THE TRIBUNA L FURT H ER NOTICED THAT THE ASSESSEE HAD SO UGHT T I M E I N THE AB OVE SAID LETTER AND THE ASSESSING OFF I CER A L SO HAD GRANTED T I ME IN RESPO NS E TO T HE SA ME. ACCORDINGLY , THE TR I BUNAL EXPRESSED THE VIEW T H A T THER E W A S S UBS T ANTIAL COMP LI ANCE BY THE ASSESSEE TO THE NOTICE DATED 1 1 . 11 . 2 010 I SS UED B Y THE AO. A C CORD I NG L Y , THE T RIBUNAL EXPRESSED THE VIEW THAT T HE ASSESSE E IS S AV ED OF PEN ALTY B Y A REASO N A B LE CAUSE IN T ERMS OF SEC TI ON 2 7 3 B O F THE AC T . I N TH E INSTANT CAS E ALSO , THE AS S ESSEE HEREIN HAS FILED A LETTER DA T E D 1 9 /11/2010 THROU G H ' T A PAL ', TH OUGH IT WAS FILED BELATEDLY ON 25.11.20 1 0 . THE TRIBUNAL FURTHER NOTICED THAT THE A S S E SS EE H A D S OUGHT FURTHER TIME IN THE ABOVE LETTER AND THE ASSESSING OF FI C E R H A S GR A NTE D T IME I N R ESPONS E THE R ET O . HE N CE , AS PER THE VIEW TAKEN BY TH E C O ORDINATE BENCH , THERE IS SUBSTANTIAL COMPLIANCE T O THE NOTICE I SSUED BY THE AO O N 11 . 11 . 2010 . HENCE , CONSISTEN T WITH THE VIEW TAKEN BY THE CO - ORDINATE BENCH IN THE CASE OF SMT . HEMA RAKESHKUMA R M GUPTA ( SUP R A) , WE ALSO HOLD THAT THERE WAS NO NECESSITY TO LEVY PENALTY U/S 271 (1 )(B) OF THE ACT , SINCE T HERE WAS A REASONABLE CAUSE IN TERMS OF SEC . 273B OF THE ACT . 8 . THE FACTS PREVAILING I N ALL THE YEARS ARE IDENTICAL IN NATURE AND HENCE , FO R THE FOREGOING REASONS , WE SET ASIDE THE ORDER OF ID. CIT(A) IN ALL THE YEARS UNDE R CONSIDERATION AND DIRECT THE AO TO DELETE THE PENALTY LEVIED U/S 271 (1)(B) OF THE ACT IN ALL THE YEARS . 9. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED. 2.2 IT IS ALSO NOTED THAT AN IDENTICAL ISSUE AROSE IN THE CASE OF HEMA RAKESHKUMAR M GUPTA VS. ITO (ITA NO. 381 T O 385/MUM/2013 DATED 27/08/2014 ) AND AFTER HAVING AN ELABORATE DISCUSSION , THE COORDINATE BENCH OF THIS TRIBUNAL, DELETED THE PENALTY IMPOSED UNDER SECTION 271(1)(B) OF THE ACT . NO CONTRARY EVIDENCE/ FACTS WERE BROUGHT TO OUR NOTICE BY EITHER SIDE AND MOR E SPECIFICALLY THE REVENUE , THEREFORE, RESPECTFULLY FOLLOWING THE AFORESAID MOHIT RAKESHKUMAR GUPTA & NILESH RAKESHKUMAR GUPTA ITA NO S . 375 TO 380/MUM/2013 5 ORDERS OF THE COORDINATE BENCH OF THIS TRIBUNAL , WE DIRECT THE ASSESSING OFFICER TO DELETE THE PENALTY IMPOSED IN THE RESPECTIVE APPEAL. THUS, THE APPEALS OF THE PRESENT ASSESSEES ARE ALLOWED. FINALLY , THE APPEALS OF THE ASSESSEES ARE ALLOWED. T HIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FRO M BOTH SIDES AT T H E CONCLUSION OF THE HEARING ON 02/11 /2016 . SD/ - SD/ - ( RAMIT KOCHAR ) (J OGINDER SINGH) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED : 0 2 / 1 1 /201 6 VR/ - . . / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT, MUMBAI. 4. / CIT(A) - , MUMBAI 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBA I,