Anupam Agency, Rajkot V. The Income Tax Officer, Ward-3(1)(3), Rajkot

ITA 40/RJT/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3389 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 25-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NAMITA KHURANA
• Keywords: Set aside
• Section: 143(3); 142(1)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT BEFORE SHRI WASEEM AHMED , ACCOUNTANT MEMBER AND MS MADHUMITA ROY , JUDICIAL MEMBER ./ I.T.A. NO. 40/RJT/2019 ( / ASSESSMENT YEAR 2014 - 1 5 ) M/ S ANUPAM AGENCY, OPP. GUJARAT SAMACHAR MIOPARA NANDANWAN, KANTA STI VIKAS GRUH ROAD , RAJKOT . / VS. I.T.O. , WARD - 3 (1)(3) , RAJKOT . ./ ./ PAN/GIR NO. : A A DFA7828S ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : WRITTEN SUBMISSION / RESPONDENT BY : MS NAMITA KHURANA , SR. D . R. / DATE OF HEARING 26 /02 /20 20 / DATE OF PRONOUNCEMENT 28 / 0 2 /20 20 / O R D E R PER BENCH : THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMIS SIONER OF INCOME TAX (APPEALS) - 3 , RAJKOT [ LD. CIT(A) IN SHORT] DATED 16/11 /2018 ARISING IN THE MATTER OF ASSESSMENT ORDER PASSED UNDER S. 271(1)(B) OF THE INCOME TAX ACT, 1961 (HEREINAFTER R EFERRED TO AS 'THE ACT') DATED 14/09/2016 RELEVANT TO THE ASSESSMENT YEAR S (A . Y . ) 2014 - 1 5 . ITA NO. 40 /RJT / 2019 A.Y.2014 - 1 5 - 2 - THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THE GROUND RAISED IN THIS APPEAL ARE WITHOUT PREJUDICE TO ONE ANOTHER. 2. THE LD.ITO, WARD - (1)(1), RAJKOT ERRED IN LAW AND ON FACTS IN LEVYING PENALTY U/S.271(1)(B) OF RS.10000/ - AND THE LD.CIT9A) ERRED IN LAW AND ON FACTS IN RETAINING THE SAME. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE IT IS CONTENDED THAT THE PENALTY LEVIED DESERVES TO BE DELETED. 4. YOUR APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR WITHDRAW ANY OF THE GROUNDS STATED HERE ABOVE. 2. THE ONLY ISSUE RAISED BY THE ASSESSEE IN THIS APPEAL IS THAT THE LD . CIT(A) ERRED IN CONFIRMING THE PENALTY ORDER OF AO U/S 271(1)(B) OF THE ACT. 3. BRIEFLY, THE FACTS ARE THAT THE ASSESSEE IS FIRM. THE AO DURING ASSESSMENT PROCEEDINGS INITIATED PENAL TY PROCEEDINGS U/S 271(1)(B) OF THE ACT FOR RS. 10.000.00 DUE TO NON - COMPLIANCE OF THE NOTICE ISSUED UNDER SECTION 142(1) OF THE ACT WHICH WAS FINALLY CONFIRMED. 4. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WHO CONFIRMED THE ORDER OF AO. BEING AGGRIEVED BY THE ABOVE FINDING OF LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 5. THE LD. AR BEFORE US CONTENDED THROUGH THE WRITTEN SUBMISSION THAT THE ASSESSEE HAS MADE THE SUBSTANTIAL COMPLIANCE DURING THE ASSESSMENT PROCEEDI NGS AND THEREFORE THE ASSESSMENT WAS FRAMED UNDER SECTION 143(3) OF THE ACT. ACCORDINGLY, THE ASSESSEE SHOULD NOT BE VISITED WITH THE PENALTY UNDER SECTION 271(1)(B) OF THE ACT. 6. ON THE OTHER HAND, THE LD. DR VEHEMENTLY SUPPORTED THE ORDER OF LOWER AUT HORITIES. ITA NO. 40 /RJT / 2019 A.Y.2014 - 1 5 - 3 - 7. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND CAREFULLY CONSIDERED THE RELEVANT MATERIAL S ON RECORD. AT THE OUTSET IT WAS OBSERVED THAT IN THE IDENTICAL FACTS AND CIRCUMSTANCES THE HON BLE DELHI TRIBUNAL HAS DECIDED THE ISSUE IN FAVOUR OF ASSESSEE IN THE CASE OF AKHIL BHARTIYA PRATHMIK SHIKSHAK SANGH BHAWAN TRUST REPORTED IN 115 TTJ (DEL) 419 BY OBSERVING THAT THE ASSESSMENT WAS FRAMED UNDER SECTION 143(3) OF THE ACT WHICH PROVES THAT SUBSTANTIAL COMPLIANCES WERE MADE BY THE ASSESSEE. THUS IT CANNOT BE HELD THAT THE DEFAULT COMMITTED BY THE ASSESSEE WAS WILLFUL. THUS, WE ARE INCLINED NOT TO UPH OLD THE ORDER OF LOWER AUTHORITIES. 7.1 SIMILARLY, WE ALSO FIND THAT THE HON BLE APEX COURT IN THE CASE OF HINDUSTAN STEEL LIMITED V. STATE OF ORISSA REPORTED IN 83 ITR 26(SC) HAS HELD THAT THE PENALTY SHOULD NOT BE IMPOSED UNLESS THE ASSESSEE ACTED DELIBERATELY. THE R ELEVANT EXTRACT READS AS UNDER : OBLIGATION IS THE RESULT OF A QUASI - CRIMINAL PROCEEDING, AND PENALTY WILL NOT ORDINARILY BE IMPOSED UNLESS THE PARTY OBLIGED, EITHER ACTED DELIBERATELY IN DEFIANCE OF LAW OR WAS GUILTY OF CONDUCT CONTUMACIOUS OR DISHONEST, OR ACTED IN CONSCIOUS DISREGARD OF ITS OBLIGATION. PENALTY WILL NOT ALSO BE IMPOSED MERELY BECAUSE IT IS LAWFUL TO DO SO. WHETHER PEN ALTY SHOULD BE IMPOSED FOR FAILURE TO PERFORM A STATUTORY OBLIGATION IS A MATTER OF DISCRETION OF THE AUTHORITY TO BE EXERCISED JUDICIALLY AND ON A CONSIDERATION OF ALL THE RELEVANT CIRCUMSTANCES. EVEN IF A MINIMUM PENALTY IS PRESCRIBED, THE AUTHORITY COMP ETENT TO IMPOSE THE PENALTY WILL BE JUSTIFIED IN REFUSING TO IMPOSE PENALTY, WHEN THERE IS A TECHNICAL OR VENIAL BREACH OF THE PROVISIONS OF THE ACT OR WHERE THE BREACH FLOWS FROM A BONA FIDE BELIEF THAT THE OFFENDER IS NOT LIABLE TO ACT IN THE MANNER PRES CRIBED BY THE STATUTE. 7.2 CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND IN VIEW OF THE ORDER OF THE CO - ORDINATE BENCH AS DISCUSSED ABOVE, WE ARE OF THE CONSIDERED OPINION THAT THIS IS NOT A FIT CASE FOR LEVY OF PENALTY U/S 271(1)(B) OF THE AC T. WE THEREFORE, SET ASIDE THE ORDER OF LD. CIT(A) AND DIRECT THE ASSESSING OFFICER TO CANCEL THE PENALTY. THE GROUND RAISED BY ASSESSEE IS ACCORDINGLY ALLOWED. ITA NO. 40 /RJT / 2019 A.Y.2014 - 1 5 - 4 - 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 28 / 02 /20 20 - SD - - SD - ( MADHUMITA ROY ) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER RAJKOT, DATED 28 /02 /20 20 MANISH