Harminder Singh Bhatia, Indore V. Deputy Commissioner of Income Tax (Central) 1, Bhopal

ITA 403/Ind/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2697 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 02-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R S ABEDKAR
• Assessee Lawyers: ARPIT GAUR CAS
• Keywords: Reasonable cause; Set aside
• Section: 143(3); 142(1); 153A; 144; 2

Judgement Text

ITANO.401 TO 406 OF 2018 HARMINDER SINGH BHATIA 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE HON'BLE KUL BHARAT, JUDICIAL MEMBER AND HON'BLE MANISH BORAD, ACCOUNTANT MEMBER ITA NOS.401 TO 406/IND/2018 ASSESSMENT YEARS: 2011-12 TO 2016-17 HARMINDER SINGH BHATIA V/S DCIT (CENTRAL)-1 306-AD, SCHEME NO.74-C BHOPAL VIJAY NAGAR, INDORE PAN: ACFPB4293H (APPELLANT) (RESPONDENT) APPELLANT BY SHRI ANIL KAMAL GARG & SHRI ARPIT GAUR, CAS REVENUE BY SHRI R.S. ABEDKAR, SR. DR DATE OF HEARING 06 .0 6 .2019 DATE OF PRONOUNCEMENT 07 .0 6 .2019 O R D E R PER BENCH. THE ABOVE CAPTIONED BUNCH OF 6 APPEALS ARE AT THE INSTANCE OF ASSESSEE WHICH ARE DIRECTED AGAINST THE ORDERS OF L D. COMMISSIONER OF INCOME TAX (APPEALS), BHOPAL (IN SHORT CIT(A)] DATED 24.01.2018. 2. AS THE ISSUE RAISED IN ALL THESE APPEALS ARE SIM ILAR, THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS C OMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 3. IT IS AGREED BY BOTH THE PARTIES THAT FACTS INVO LVED IN ALL THESE APPEALS ARE COMMON AND THE COMMON ISSUE RELATES TO THE LEVY OF ITANO.401 TO 406 OF 2018 HARMINDER SINGH BHATIA 2 PENALTY U/S 271(1)(B) OF THE ACT AT RS.10,000/- FOR NON-COMPLIANCE TO THE NOTICE ISSUED U/S 142(1) OF THE ACT. 4. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT THE ISSUE RAISED IN THESE BUNCH OF APPEALS IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THIS COORDINATE BENCH IN CASE OF SMT. PUSHPA VERMA AND OTHERS VIDE ITANO.361 TO 367/ IND/2018 DATED 24.01.2018 WHEREIN THE HON'BLE TRIBUNAL DELET ED THE PENALTY LEVIED U/S 271(1)(B) OF THE ACT ON OBSERVING THAT T HE ASSESSMENTS WERE FRAMED U/S 143(3) OF THE ACT AND NOT AS AN EX-PARTE ORDER U/S 144 OF THE ACT. 5. PER CONTRA. LD. DEPARTMENTAL REPRESENTATIVE(DR) THOUGH SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES BUT C OULD NOT CONTROVERT THE SUBMISSIONS MADE BY THE LD. COUNSEL FOR THE ASSESSEE. 6. WE HAVE HEARD RIVAL CONTENTIONS, CONSIDERED THE FACTS, PERUSED THE MATERIAL PLACED BEFORE US AND CAREFULLY GONE TH ROUGH THE DECISION REFERRED AND RELIED BY THE LD. COUNSEL FOR THE ASSESSEE. THE SOLE GRIEVANCE RAISED IN THESE SIX(6) APPEALS IS AG AINST THE ORDER OF LD. CIT(A), CONFIRMING THE LEVY OF PENALTY OF RS.10 ,000/- U/S 271(1)(B) OF THE ACT FOR NON-COMPLYING TO NOTICE IS SUED U/S 142(1) OF THE ACT. 7. WE OBSERVE THAT SIMILAR ISSUE CAME UP BEFORE US IN OTHER GROUP CASES OF WHICH ASSESSEE ALSO BELONGS AND WE DELETED THE PENALTY LEVIED U/S 271(1)(B) OF THE ACT VIDE OUR ORDER DATE D 24.01.2019 IN CASE OF PUSHPA VERMA (SUPRA) OBSERVING AS FOLLOWS: ITANO.401 TO 406 OF 2018 HARMINDER SINGH BHATIA 3 12. IT IS BROUGHT TO OUR NOTICE THAT EXCEPT IN THE CASE OF SUNIT MADHOK, ASSESSMENTS IN ALL THE OTHER ASSESSEE(S) HA VE BEEN FRAMED U/S 153A R.W.S 143(3) OF THE ACT WHICH SHOWS THAT PROPER REPRESENTATION WAS THERE BEFORE THE ASSESSIN G OFFICER BY THE ASSESSEES AND ASSESSEE(S) PARTICIPATED IN THE A SSESSMENT PROCEEDINGS TO THE SATISFACTION OF LD. ASSESSING OF FICER. IN THESE FACTS WHERE THE ASSESSMENT ORDERS HAVE NOT BEEN FRA MED EX- PARTE U/S 144 OF THE ACT BUT HAVE BEEN FRAMED U/S 1 43(3) OF THE ACT THAN THE PENALTY LEVIED U/S 271(1)(B) HAS BEEN HELD TO BE UNJUSTIFIED BY COORDINATE BENCH INDORE IN THE CASE OF PRAMILA GHODHE VS. DCIT (2017) 49 CCH 0401 DATED 20.03.2017 OBSERVING AS FOLLOWS: WE HAVE CONSIDERED THE FACTS, RIVAL SUBMISSIONS AN D PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ASSESSMENT IN THIS CASE WAS MADE UNDER SECTION 143( 3) OF THE ACT, WHICH MEANS THAT THERE WAS SUBSEQUENT COMPLIANCE TO THE NOTICES ISSUED BY THE AUTHORITIES . WE ALSO NOTED THAT LD. COUNSEL ALSO ATTENDED BEFORE TH E AO ON 17.12.2015 AND FILED REPLIES IN ALL THE CASES INCLU DING THE CASE OF THE ASSESSEE. THE AO VERBALLY AGREED BUT COUNSELS PRESENCE WAS NOT RECORDED. WE ARE OF THE VIEW THAT THE ASSESSEE HAS A REASONABLE CAUSE FOR NON- APPEARANCE ON THAT DAY. THEREFORE, THERE IS NO JUST IFICATION FOR LEVYING THE PENALTY U/S 271(1)(B) OF THE ACT. S ECONDLY, IN THIS MATTER, THE ASSESSMENTS HAVE BEEN COMPLETED U/S 143(3) DUE TO SUBSEQUENT COMPLIANCES IN THE ASSESSM ENT PROCEEDINGS, WHICH WAS CONSIDERED AS GOOD COMPLIANC ES AND DEFAULT COMMITTED EARLIER WERE IGNORED. WE ALSO BOLSTER OUR VIEW BY PLACING RELIANCE IN THE CASE OF AKHIL BHARTIYA PRATHMIK SHIKSHAK SANGH BHAWAN TRUST V. AD IT (2008) 115 TTJ 419(DEL)/115 ITJ 419 (DEL), WHEREIN IT WAS HELD THAT WHERE THE ASSESSEE HAD NOT COMPLIED WITH NOTICE U/S 142(1) BUT ASSESSMENT ORDER WAS PASSED U/S 143( 3) AND NOT U/S. 144, THAT MEANT THAT SUBSEQUENT COMPLI ANCE IN ASSESSMENT PROCEEDINGS WAS CONSIDERED AS GOOD COMPLIANCE AND DEFAULTS COMMITTED EARLIER WERE IGNO RED BY THE ASSESSING OFFICER, THEREFORE LEVY OF PENALTY U/S. 271(1)(B) OF THE ACT WAS NOT JUSTIFIED. THUS, WE SE T ASIDE ITANO.401 TO 406 OF 2018 HARMINDER SINGH BHATIA 4 THE ORDERS OF THE REVENUE AUTHORITIES AND DELETE TH E LEVY OF PENALTY U/S 271(1)(B) OF THE ACT IN THESE APPEAL S. 13 . UNDER SAME SET OF FACTS RELATING TO PENALTY U/S 2 71(1)(B) OF THE ACT, SIMILAR VIEW OF DELETING PENALTY HAS BEEN TAKEN BY COORDINATE BENCH INDORE IN ANOTHER CASE OF HEMANT K UMAR SONI & ORS. VS. DCIT (2017) 49 CCH 0350 DATED 16.01.201 7 WHICH READS AS FOLLOWS: WE HAVE HEARD RIVAL CONTENTIONS OF BOTH THE PARTIE S AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND F ROM THE ASSESSMENT ORDERS IN ALL THESE GROUP APPEALS THAT T HE ASSESSMENTS HAVE BEEN COMPLETED U/ S 143(3) OF THE IT. ACT. WE FIND THAT THE ASSESSING OFFICER HAS LEVIED PENALTY 271(1)(B) FOR NON-APPEARANCE ON 15.10.2015. AS PER LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE, THE ASSE SSEES' COUNSEL APPEARED AND STATED CATEGORICALLY THAT HE APPEARED FOR SEEKING TIME. THE COUNSEL REGULARLY AT TENDED THE PROCEEDINGS AND THE ASSESSMENTS HAVE BEEN FRAME D U/ S 143(3) AND NOT U/ S 144. WE FIND THAT THIS WAS THE FIRST NOTICE FOR COMPLIANCE AND SINCE THE VOLUMINOU S RECORDS AND PAPERS WERE REQUIRED TO BE SCRUTINIZED AND INDIVIDUALLY IN EACH CASE, THE APPROPRIATE REPLIES WERE TO BE FILED, THE ASSESSEE PRAYED FOR THE TIME TO SUBMI T THE REPLY AND ULTIMATELY SUBMITTED ALL THE NECESSARY RE PLIES AND COOPERATED WITH THE DEPARTMENT. WE ARE OF THE V IEW THAT ASSESSEES HAD REASONABLE CAUSE FOR NON-APPEARA NCE ON THAT DAY. THEREFORE, THERE IS NO JUSTIFICATION F OR LEVYING THE PENALTY U/S 271(1)(B) OF THE ACT. SECONDLY, IN THIS MATTER, THE ASSESSMENTS HAVE BEEN COMPLETED U/S 143 (3) OF THE ACT, THEREFORE, NO PENALTY CAN BE LEVIED IF THE ASSESSMENTS HAVE BEEN COMPLETED U/S 143(3) AND THER E IS SUBSEQUENT COMPLIANCES IN THE ASSESSMENT PROCEEDING S WAS CONSIDERED AS GOOD COMPLIANCES AND DEFAULT COMMITTED EARLIER WERE IGNORED. THEREFORE, PENALTY U/S 271(1)(B) WAS DELETED BY VARIOUS TRIBUNALS. IN THE CASE OF AKHIL BHARTIYA PARTHMIK SHMSHAK SANGH BHAWAN TRUST VS. ADIT (2008) 115 TTJ 419 (DEL), IT WAS HELD THAT WHERE THE ASSESSEE HAD NOT COMPLIED WITH NOTICE U/S142(1) BUT ITANO.401 TO 406 OF 2018 HARMINDER SINGH BHATIA 5 ASSESSMENT ORDER WAS PASSED U/S 143(3) AND NOT U/S 144, THAT MEANT THAT SUBSEQUENT COMPLIANCE IN ASSESSMENT PROCEEDINGS WAS CONSIDERED AS GOOD COMPLIANCE AND DEFAULTS COMMITTED EARLIER WERE IGNO RED BY THE ASSESSING OFFICER, THEREFORE, LEVY OF PENALT Y U/S 271(1)(B) OF THE ACT WAS NOT JUSTIFIED. THE CASE LA WS CITED BY LD. DEPARTMENTAL REPRESENTATIVE ARE DISTINGUISHA BLE ON FACTS, HENCE, INAPPLICABLE TO THIS CASE. WE ALSO NOTED THAT IN THE VINIT CHOUHAN GROUP CASES, AN ORDER IS PASSE D IN A GROUP IN I.T.A.NOS. 1061 TO 1181/IND/2016 DATED 23.11.2016, IN WHICH SIMILAR SET OF FACTS THE PENAL TY LEVIED U/S 271(1)(B) WAS SET ASIDE. THEREFORE, RESPECTFULL Y FOLLOWING THE SAID ORDER AND FACTS, WE SET ASIDE TH E ORDERS OF THE REVENUE AUTHORITIES AND DELETE THE LEVY OF P ENALTY U/S 271(1)(B) OF THE ACT IN ALL THESE APPEALS. 14. WE, THEREFORE, IN THE GIVEN FACTS AND CIRCUMSTA NCES OF THE CASE AND RESPECTFULLY FOLLOWING THE DECISION OF THE COORDINATED BENCH, ARE OF THE CONSIDERED OPINION THAT LEVY OF P ENALTY U/S 271(1)(B) OF THE ACT WAS FAIR AND JUSTIFIED IN THE CASE OF SMT. PUSHPA VERMA, M/S. REGENT BEERS & WINES LTD., PATEL EDUCATION & WELFARE SOCIETY, ARUN KUMAR VERMA, MRS. VAISHALI SHIVHARE, RAM SWAROOP SHIVHARE & HARMINDER SINGH BH ATIA AND ACCORDINGLY ALL GROUNDS RAISED BY THE ASSESSEES IN THE APPEALS IN ITANO.361 TO 367/IND/2018, ITANO.345 TO 349/IND/2018, ITANO.353 TO 358/IND/2018, ITANO.368 TO 374/IND/2018, ITANO.375 TO 381/IND/2018, ITANO.389 TO 395/IND/2018 & ITANO.400/IND/2018 ARE ALLOWED AND REVENUE IS DIRECTED TO DELETE THE PENALTY U/S 271(1 )(B) OF THE ACT IN THESE CASES. 8. WE, THEREFORE, RESPECTFULLY FOLLOWING THE ABOVE REFERRED DECISION OF THE TRIBUNAL AND IN THE GIVEN FACTS AND CIRCUMSTANC ES OF THE CASE, ARE OF THE VIEW THAT THOUGH THE ASSESSEE MADE DEFAU LT IN MAKING DUE COMPLIANCE TO THE INITIAL NOTICE ISSUED U/S 142 (1) OF THE ACT DUE ITANO.401 TO 406 OF 2018 HARMINDER SINGH BHATIA 6 TO REASONABLE CAUSE BUT SUBSEQUENT COMPLIANCE WERE MADE IN THE ASSESSMENT PROCEEDINGS WHICH WERE CONSIDERED AS GOO D COMPLIANCE AND ASSESSMENTS HAVE BEEN COMPLETED U/S 143(3) OF T HE ACT AND NOT U/S 144 OF THE ACT AS AN EX-PARTE ORDER, THEREFORE, THE PENALTY LEVIED U/S 271(1)(B) OF RS.10,000/- IS LIABLE TO B E DELETED IN ALL THESE SIX APPEALS RELATING TO THE ASSESSEE NAMELY M R. HARMINDER SINGH BHATIA FOR A.YS. 2011-12 TO 2016-17 IN ITANOS .401 TO 406/IND/2018. 9. IN THE RESULT, APPEALS OF THE ASSESSEE IN ITANOS . 401 TO 406/IND/2018 ARE ALLOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 07.0 6.2019. SD/- SD/- (KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 7 TH JUNE, 2019 PATEL/PS COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT.REGISTRAR, I.T.A.T., INDORE