S.D. ENTERPRISES, MUMBAI V. ITO 18(1)(3), MUMBAI

ITA 3861/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 49450 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 06-07-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 13-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: G P TRIVEDI
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, E BENCH, MUMBAI. BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO, JUDICIAL MEMBER I.T.A NO.3861/ MUM/2010 ASSESSMENT YEAR: 2005-06 S.D.ENTERPRISES, .. APPELLANT A/2, 459, SHAH & NAHAR INDUSTRIES ESTATE, LOWER PAREL, MUMBAI-13. PA NO.AAKFS 5704 H VS ITO 18(1)(3) ,. RESPONDEN T MUMBAI. APPEARANCES: JAYANT R BHATT, FOR THE APPELLANT G.P.TRIVEDI, FOR THE RESPONDENT O R D E R PER PRAMOD KUMAR: 1. THE SHORT ISSUE THAT WE ARE REQUIRED TO ADJUDICATE IN THIS APPEAL IS, WHETHER OR NOT THE CIT(A) WAS JUSTIFIED IN UPHOLDING THE PENA LTY OF ` .20,000 U/S.271(1)(B) OF THE I.T.ACT, 1961 FOR THE ASSESSMENT YEAR 2005-06. 2. BRIEFLY STATED THE MATERIAL FACTS ARE LIKE THIS. A T THE TIME OF ASSESSMENT PROCEEDINGS, THE ASSESSEE FAILED TO COMPLY WITH THE STAT UTORY NOTICES. ACCORDINGLY, THE ASSESSING OFFICER IMPOSED PENALTY OF ` .20,000 UNDER SECTION 271(1)(B). THE ACTION SO TAKEN BY THE ASSESSING OFFICER WAS CONFIRMED BY THE CIT(A). THE ASSESSEE IS AGGRIEVED AND IN APPEAL BEFORE US. 3. AT THE TIME OF HEARING, LEARNED COUNSEL FOR THE A SSESSEE SUBMITTED THAT THE ASSESSEE WAS ASKED TO PRODUCE CERTAIN DETAILS AND SINCE SUC H DETAILS WERE IN THE CUSTODY OF THE DEPARTMENT, THEREFORE, THEY COULD NOT BE FURNISHED BEFORE THE AO. 2 LEARNED COUNSEL ALSO CONTENDED THAT THE ASSESSEE HAD ALWA YS ASKED THE AO TO ALLOW COPIES OF THE RECORDS RESUMED BY THE DEPARTMENT, WHICH WERE NOT ALLOWED. IT WAS ALSO SUBMITTED THAT THE CIT(A) CONFIRMED THE AOS ACTI ON ON THE GROUND THAT THE ASSESSEE HAS FAILED TO ATTEND PROCEEDINGS BEFORE THE AO O R BEFORE HIM. IN VIEW OF THIS, HE URGES US TO DELETE THE PENALTY LEVIED BY THE AO AND CONFIRMED BY THE CIT(A). LEARNED COUNSEL FURTHER SUBMITS THAT HE IS INDEED SORRY THAT FOR WHATEVER REASONS NOTICES FOR HEARING COULD NOT BE COMPLIED WITH IN PA ST AND UNDERTAKES THAT IN FUTURE HE WILL BE CAREFUL IN ENSURING THAT ALL THE NOTICES I SSUED BY THE ASSESSING OFFICER ARE GIVEN DUE DEFERENCE AND PROPERLY COMPLIED WITH. LE ARNED COUNSEL EXPLAINED THAT THE LAPSES IF ANY, TOOK PLACE BECAUSE OF UNAVOIDABLE R EASONS AND PERSONAL DIFFICULTIES. IT WAS ALSO SUBMITTED THAT THE ASSESSEE IS A LAW BINDING CITIZEN, ALWAYS WILLING TO FULLY COOPERATE WITH THE TAX AUTHORITIES AND THAT IT WAS AN INADVERTENT MISTAKE ON HIS PART WHICH THE ASSESSEE UNDERTAKES NOT TO COMMIT AGAIN. THE ASSESSEE HAS ALSO FILED AN APOLOGY AND UNDERTAKING DULY SI GNED BY ONE DEEPAK AGARWAL, PARTNER OF THE ASSESSEE FIRM. 4. LEARNED D.R. RELIED ON THE ORDER OF THE CIT(A) A ND ASSESSING OFFICER. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAVE PER USED THE MATERIAL ON RECORD. WE HAVE ALSO TAKEN NOTE OF THE APOLOGY AND U NDERTAKING SUBMITTED BY THE ASSESSEE AND WE HOPE THAT THE ASSESSEE WILL NOT COMMIT SUCH LAPSE IN FUTURE. IN VIEW OF ASSESSEES UNDERTAKING TO DO SO AND IN VIEW OF TH E FACT THAT THE ASSESSEE HAD ANYWAY A REASONABLE CAUSE FOR NOT ATTENDING THE PROC EEDINGS, WE ARE OF THE OPINION THAT IT IS NOT A FIT CASE FOR LEVY OF PENALTY OF RS. 20,000/- U/S. 271(1)(B) OF THE ACT, WHICH IS ACCORDINGLY, CANCELLED AND THE GROUND OF AP PEAL OF THE ASSESSEE IS ALLOWED. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED . PRONOUNCED IN THE OPEN COURT ON 15 TH JULY, 2011 SD/- (VIJAY PAL RAO) JUDICIAL MEMBER SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER MUMBAI, DATED 15 TH JULY, 2011 3 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS),29, MUMBAI 4. COMMISSIONER OF INCOME TAX, 18, MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH E, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI