Smt. Sangeeta Sawhney, New Delhi V. ACIT, New Delhi

ITA 4035/DEL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3157 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 11-05-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 17-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure; Principle of natural justice; Reasonable cause; Non compliance
• Section: 273B; 142(1); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 403 5/ DEL/2014 A.Y. : 2006 - 2007 SMT. SANGEETA SAWHNEY, C/O RRA TAXINDIA, D-28, SOUTH EXTENSION, PART-I, NEW DELHI 110 049 (PAN:ABOPS1461Q) VS. ACIT, CENTRAL CIRCLE - 12, NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. TARUN KUMAR, ADV. DEPARTMENT BY : SH. N.K. BANSAL, SR. DR ORDER PER H.S. SIDHU, JM THE ASSESSEE HAS FILED THIS APPEAL AGAINST THE IMPUGNED ORDER DATED 26/5/2014 PASSED BY THE LD. COMMISSIONER OF INCOME TAX(APPEALS)-XXXI. 2. THE GROUNDS RAISED IN THIS APPEAL READ AS UNDER :- 1. THAT HAVING REGARD TO FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS I N 2 CONFIRMING THE ACTION OF LD. AO IN LEVYING PENALTY OF RS. 10,000/- U/S. 271(1)(B) OF THE INCOME TAX ACT, 1961 WHICH WAS LEVIED WITHOUT ANY BASIS AND WITHOUT GRANTING ADEQUATE OPPORTUNITY OF HEARING AND MORE SO WHEN THE LD. CIT(A) HIMSELF DELETED THE PENALTY IN SUBSEQUENT THREE ASSESSMENT YEARS WHICH WAS LEVIED BY THE AO ON SAME SET OF FACTS. 2. THAT HAVING REGARD TO FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS I N CONFIRMING THE ACTION OF AO IN FRAMING THE IMPUGNED PENALTY ORDER WITHOUT ASSUMING JURISDICTION AS PER LAW AND WITHOUT RECORDING MANDATORY SATISFACTION AS PER LAW AND WITHOUT APPRECIATING THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THAT IN ANY VIEW OF THE MATTER AND IN ANY CASE, ACTION OF LD. CIT(A) IN CONFIRMING THE ACTION OF AO IN IMPOSING THE PENALTY OF RS. 10,000/- U/S. 271(1)(B) IS BARRED BUY LIMITATION, ILLEGAL, BEYOND JURISDICTION, IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE, BY RECORDING INCORRECT FACTS AND FINDINGS, CONTRARY TO LAW AND FACTS AND THE SAME IS NOT SUSTAINABLE ON VARIOUS LEGAL AND FACTUAL GROUNDS AND DESERVES TO BE QUASHED. 4. THAT THE APPELLANT CRAVES THE LEAVE TO ADD, MODIFY , AMEND OR DELETE ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING AND ALL THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. 3. THE FACTS NARRATED BY THE REVENUE AUTHORITIES ARE N OT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED H ERE FOR THE SAKE OF BREVITY. 4. AT THE TIME OF HEARING, LD. COUNSEL OF THE ASSESSEE STATED THAT EXACTLY ON SIMILAR GROUNDS THE ITAT HAS DELETED THE SIMILAR PENALTY IN THE CASE OF SH. PRAVEEN SAWHNEY IN ITA NOS. 403 9, 4040, 4041 3 & 4042/DEL/2014 (AYRS. 2006-07 TO 2009-10) VIDE ORD ER DATED 27.4.2017. HE DRAW OUR ATTENTION TOWARDS PARA NO. 4 TO 6 AT PAGE NO. 3 TO 5 OF THE TRIBUNALS ORDER DATED 27.4.2017, AS AFORESAID AND REQUESTED TO RESPECTFULLY FOLLOW THE AFORESAID ORDER O F THE TRIBUNAL AND PENALTY IN DISPUTE MAY BE DELETED AND APPEALS OF TH E ASSESSEE MAY BE ALLOWED. HE FURTHER STATED THAT RECENTLY THE G BENCH OF THE ITAT, DELHI VIDE ITS ORDER DATED 05.05.2017 IN ASS ESSEES OWN CASE FOR THE ASSESSMENT YEARS 2007-08 TO 2009-10 PASSED IN ITA NO. 4036 TO 4038/DEL/2014, BY FOLLOWING ITS AFORESAID O RDER DATED 27.4.2017 HAS DELETED THE PENALTY IN DISPUTE. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECO RDS, ESPECIALLY THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS ORDER OF THE TRIBUNALS DATED 27.4.2017 PASSED IN THE CASE OF SH. PRAVEEN SAWHNEY IN ITA NOS. 4039, 4040, 4041 & 4042/DEL/20 14 (AYRS. 2006-07 TO 2009-10) AND RECENT ORDER DATED 05.5.2017 IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEARS 2007-0 8 TO 2009-10 PASSED IN ITA NO. 4036 TO 4038/DEL/2014. AFTER PERUS ING THE AFORESAID DOCUMENTARY EVIDENCES, WE FIND FORCE IN THE CONTENTION RAISED BY THE LD. COUNSEL OF THE ASSESSEE THAT THE ISSUE S INVOLVED IN THE PRESENT APPEALS ARE SIMILAR AND IDENTICAL TO THAT C ASE OF SH. PRAVEEN SAWHNEY (SUPRA) AND IN ASSESSEES OWN CASE (SUPRA), HENCE, THE ISSUES INVOLVED IN THE PRESENT APPEALS ARE SQUARELY 4 COVERED BY THE TRIBUNALS ORDERS DATED 27.4.2017 AN D 05.5.2017, AS AFORESAID, PASSED IN THE CASE OF SH. PRAVEEN SA WHNEY IN ITA NOS. 4039, 4040, 4041 & 4042/DEL/2014 (AYRS. 2006-0 7 TO 2009- 10) AND IN ASSESSEES OWN CASE FOR THE ASSESSMENT Y EARS 2007-08 TO 2009-10 PASSED IN ITA NO. 4036 TO 4038/DEL/2014. FOR THE SAKE OF CONVENIENCE, WE ARE REPRODUCING ONLY THE RELEVANT PARA NO. 4 TO 6 MENTIONED AT PAGE NO. TO 5 OF THE AFORESAID TRIBUN ALS ORDER DATED 27.4.2017 AS UNDER:- 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO PERUSED THE RELEVANT FINDING GIVEN IN THE IMPUGNED ORDER. IN THE CASE OF THE ASSESSEE FOR ALL THE IMPUGNED YEARS THE PROCEEDINGS HAVE BEEN INITIATED IN WAKE OF SEARCH AND SEIZURE OPERATION AND IN COMPLIANCE OF NOTICES U/S. 153A. APART FROM THAT, FROM TIME TO TIME VARIOUS NOTICES HAVE BEEN ISSUED U/S. 142(1) AND ALSO VARIOUS QUESTIONNAIRES FROM TIME TO TIME WHICH HAS BEEN DULY RESPONDED HERE UNDER:- 2. NOTICE U/S. 153A OF INCOME TAX ACT, 1961 DATED 16.05.2012 WAS ISSUED TO THE ASSESSEE REQUIRING HIM TO FILE THE RETURN FOR THE ASSESSMENT YEAR 2007-08. IN RESPONSE TO NOTICE U/S. 153A, THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2007-08 WAS FILED BY THE ASSESSEE 5 ON 25.06.2012 DECLARING AN INCOME OF RS.5,86,950/-. A QUESTIONNAIRE ALONGWITH NOTICE 142(1) & 143(2) WAS ISSUED TO THE ASSESSEE ON 28.05.2012 & 15.10.2013 REQUIRING HIM TO FILE NECESSARY DETAILS. FURTHER NOTICE U/ S 142(1) DATED 28. 10.2014 WAS ISSUED TO THE ASSESSEE FOR FURNISHING THE DETAILS AS ASKED FOR IN EARLIER QUESTIONNAIRES, 3. IN RESPONSE TO AFORESAID NOTICES, SHRI JITENDER GOEL, C.A, & AUTHORIZED REPRESENTATIVE OF THE ASSESSEE, ATTENDED THE PROCEEDINGS AND FILED POWER OF ATTORNEY & NECESSARY DETAILS FROM TIME TO TIME.' 5. THE IMPUGNED PENALTY PROCEEDINGS U/S 271(1)(B) HAS BEEN LEVIED FOR NON-COMPLIANCE OF ONE NOTICE U/S 142(1) FIXING THE DATE OF HEARING OF THE CASE ON 18.7.2013. PRIOR TO THIS NOTICE THE ASSESSEE HAD DULY COMPLIED WITH ALL THE NOTICES AND EVEN COMPLIANCES WAS MADE TO SUBSEQUENT NOTICES AND THAT IS WHY THE ASSESSMENT HAS BEEN COMPLETED U/S 143(3). THE REASONS GIVEN BY THE ASSESSEE FOR NON- COMPLIANCE FOR PARTICULAR DATE WAS THAT - THE ASSESSEE WAS SUFFERING FROM UTI AND TYPHOID 6 FEVER AND THIS FACT HAS NOT BEEN REBUTTED BY THE LD. CIT(APPEALS), BECAUSE THE SAME REASONS WAS CITED BEFORE THE ASSESSING OFFICER THROUGH REPLY FILED IN DAK. THE LD. CIT (APPEALS) HAS ACCEPTED THE SAID REASONS FOR SOME OF THE YEARS, BECAUSE OUT OF 7 ASSESSMENT YEARS FOR WHICH PENALTY WAS LEVIED FOR NON COMPLIANCE OF NOTICE DATED 11.7.2013, HE HAS DELETED THE PENALTY FOR 3 YEARS AND BALANCE 4 YEARS HAS BEEN CONFIRMED. IF THERE WAS A REASONABLE CAUSE WITHIN THE AMBIT OF SECTION 273B FOR 3 YEARS FOR DEFAULT OF SAME NOTICE, THEN NO PENALTY U/S 271(1) (B) SHOULD BE IMPOSED. MEDICAL ILLNESS AND THAT TO BE IN THE NATURE OF THE TYPHOID FEVER AND UTI IS DEFINITELY REASONABLE CAUSE FOR NON-APPEARING ON THE DATE AND THEREFORE, WE ARE OF THE OPINION THAT NO PENALTY SHOULD BE LEVIED U/S. 271(1)(B) IN SUCH CIRCUMSTANCES AS THE SAME IS COVERED UNDER EXCEPTION OF REASONABLE CAUSE AS ENSHRINED IN SECTION 273B. THUS, THE PENALTY LEVIED U/S. 271(1)(B) FOR SUM OF RS. 10,000/- FOR EACH ASSESSMENT YEAR IS HEREBY DELETED. 6. IN THE RESULT, ALL THE APPEALS FILED BY THE ASSESSEE FOR THE AFOREMENTIONED ASSESSMENT YEARS ARE ALLOWED. 7 6. AFTER PERUSING THE AFORESAID FINDINGS OF THE TRIB UNAL IN THE CASE OF PRAVEEN SAWHNEY (SUPRA), WE OF THE FIRM OPIN ION THAT THE ISSUES INVOLVED IN THE PRESENT APPEALS ARE SQUARELY COVERED IN FAVOUR OF THE ASSESSEE, THEREFORE, RESPECTFULLY FOLLO W THE PRECEDENTS, AS AFORESAID, WE DELETE THE PENALTY IN DISPUTE IN A LL THE APPEALS AND ACCORDINGLY, ALLOW THE APPEAL OF THE ASSESSEE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 12/05/2017. SD/- SD/- (PRASHANT MAHARISHI) [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 12/05/2017 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES