Sh Praveen Sawhney, New Delhi V. ACIT, New Delhi

ITA 4039/DEL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3355 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 24-04-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 17-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: F R MEENA
• Keywords: Search and seizure; Reasonable cause; Non compliance
• Section: 273B; 143(3); 142(1); 153A; 6

Judgement Text

ITA NO S . 4039, 4040, 4041 & 4042 /DEL./201 4 ASSESSMENT Y EAR S : 200 6 - 0 7, 2007 - 08, 2008 - 09 & 2009 - 10 PAGE 1 OF 6 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F BENCH NEW DELHI) BEFORE SHRI AMIT SHUKLA , JUDICIAL MEMB E R & SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA NOS. 4039, 4040, 4041 & 4042/DEL./2014 ASSESSMENT YEARS: 2006 - 07, 2007 - 08, 2008 - 09 & 2009 - 10 PRAVEEN SAWHNEY C/O RRA TAXINDIA, D - 28, SOUTH EXTENSION PART - 1, NEW DELHI VS. ACIT CENTRAL CIRCLE - 2, NEW DELHI (APPLICANT) (RESPONDENT) (PAN: ABOPS1461Q ) ASSESSEE BY: SHRI SOMIL AGGARWAL, ADVOCATE SHRI DR. RAKESH GUPTA, ADVOCATE REVENUE BY: SHRI F.R. MEENA, SR. DR DATE OF HEARING 24 / 0 4 /201 7 DATE OF PRONOUNCEMENT 2 7 / 0 4 /201 7 ORDER PER BENCH : TH E AFORESAID APPEAL S HA VE BEEN FILED BY THE ASSESSEE AGAINST COMMON IMPUGNED ORDER DATED 26 . 5 .201 4 , PASSED BY THE LD. CIT (A PPEALS ) - 3 1 , NEW DELHI IN RELATION TO THE PENALTY LEVIED U/S 271(1)(B ) FOR THE ASSESSMENT YEARS 2006 - 07, 2007 - 08, 2008 - 09 & 2009 - 10. SINCE THE ISSUES INVOLVED ARE COMMON ARISING OUT OF IDENTICAL SET OF FACTS , THEREFORE , SAME WERE HEARD TOGETHER AND ARE BEING DISPOSED OF F BY WAY OF THIS CONSOLIDATED ORDER. PAGE 2 OF 6 2. IN ALL THE APPEALS THE ASSESSEE IS MAINLY AGGRIEVED BY LEVY OF PENALTY OF RS. 10,000/ - U/S 271(1)( B ) LEVIED FOR EACH ASSESSMENT YEAR AS MENTIONED ABOVE, WHICH IS MAINLY ON ACCOUNT OF NON COMPLIANCE OF ONE NOTICE ISSUED U/S 142(1) ON 11.7.2013. BEFORE US, THE LEARNED COUNSEL F OR THE ASSESSEE SHRI SOMIL AGGARWAL SUBMITTED THAT HERE IN THIS CASE , THE ASSESSING OFFICER HAD LEVIED PENALTY FO R NON - COMPLIANCE OF NOTICE DATED 11.7.2013 ISSUED U/S 142(1) WHICH WAS FIXED FOR HEARING ON 18.7.2013. IN THIS CASE , FOR ALL THE ASSESSMENT YEARS THE ASSESSMENTS HAVE BEEN MADE U/S 153 A R.W.S. 143(3) IN WAKE SEARCH AND SEIZURE OPERATION U/S 132(1). THE ASS ESSEE HAD NOT ONLY FILED HIS RETURN OF INCOME IN COMPLIANCE TO THE NOTICE U/S 153A BUT HAD COMPLIED WITH ALL THE NOTICES AND QUERIES OF THE AO PRIOR TO THE NOTICE DATED 11.7.2013 U/S 142(1) AND ALSO IN COMPLIANCE OF CONSEQUENT NOTICES , WHICH IS EVIDENT FRO M THE FACT THAT THE ASSESSMENT ORDER HAS BEEN PASSED ON 4 TH MARCH 2015 AND BETWEEN THAT PERIOD THE ASSESSEE HAD COMPLIED WITH ALL THE NOTICES AND HAD ATTENDED ALL THE HEARINGS. THE REASONS FOR NON - COMPLIANCE OF NOTICE DATED 11.7.2013 WAS THAT THE ASSESSEE WHO HAD BEEN HIMSELF REPRESENTING THE CASE ALONG WITH THE AUTHORIZED REPRESENTATIVE WAS SUFFERING FROM URIN ARY TRACT INFECTION AND TYPHOID FEVER. THUS , ON THE APPOINTED DATE OF HEARING THE ASSESSEE COULD NOT PUT ANY APPEARANCE OR SUBMIT ANY THING DUE TO HIS ILLNESS. THIS FACT WAS ALSO MENTIONED BEFORE THE ASSESSING OFFICER IN COMPLIANCE OF SHOW CAUSE NOTICE U/S 271(1)(B) WHICH WAS FIELD IN DAK COUNTER . THE ASSESSING OFFICER HAD INITIATED THE PENALTY PROCEEDINGS U/S 271(1)(B) FOR 7 ASSESSM ENT YEARS FOR FAILURE OF SAME NOTICE AND OUT OF THE 7 YEARS THE LEARNED CIT (APPEALS) HAS RESTRICTED THE PENALTY FOR 4 YEARS AND HAS ALLOWED RELIEF /DELETED THE PENALTY IN 3 ASSESSMENT YEARS. SUCH AN APPROACH OF THE LEARNED CIT (APPEALS) THAT FOR 3 ASSESSM ENT YEARS THE PAGE 3 OF 6 ASSESSEE HAD A REASONABLE CAUSE FOR THE BALANCE 4 YEARS , THE CONFIRMATION OF PENALTY DOES NOT HOLD GROUND FOR FAILURE OF COMPLIANCE OF SAME NOTICE . FURTHER IN THIS CASE , THE ASSESSMENT HAS BEEN COMPLETED U/S 143(3) AND THEREFORE , NO PENALTY S HOULD BE LEVIED FOR ONE DEFAULT THAT TOO WHICH WAS OWING TO MEDICAL ILLNESS OF THE ASSESSEE. IN SUPPORT, THE LEARNED COUNSEL HAD RELIED UPON THE FOLLOWING DECISIONS: - I. AKHIL BHARTIYA PRATHMIK SHIKSHA SANGH TRUST VS. ACIT (2008) 115 TTJ 0419 II. ITA NO. 738/DEL/2014 GLOBUS INFOCOM LTD. VS. DCIT III. ITA NO. 4852 TO 4855/DEL/2013 IN THE CASE OF PUSHPA GARG VS. ACIT 3. ON THE OTHER HAND , THE LD. DR STRONGLY RELIED UPON THE ORDER OF THE LEARNED CIT (APPEALS). 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 , FR OM 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 BY THE ASSESSEE. THIS IS EVIDENT FROM THE FOLLOWING NOTINGS IN THE ASSESSMENT ORDER WHICH FOR THE SAKE READY REFEREN CE WHICH IS REPRODUCED 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 PAGE 4 OF 6 RETURN OF INCOME FOR THE ASSESSMENT YEAR 2007 - 08 WAS FILED BY THE ASSESSEE 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 NEC ESSARY 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, SH RI JITENDER GOE L , 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 NOTICE S AND THAT IS WHY THE ASSESSMENT HAS BEEN COMPLETED U/S 143(3). THE REASONS GIVEN BY THE ASSESSEE FOR NON - COMP LIANCE FOR PARTICULAR DATE WAS THAT THE ASSESSEE WAS SUFFERING FROM UTI AND TYPHOID FEVER AND THIS FACT HAS NOT BEEN REBUTTED BY THE LD . CIT(APPEALS) , BECAUSE THE SAME REASONS WAS CITED BEFORE THE ASSESSING OFFICER T HROUGH REPLY FILED IN DAK. THE L D. 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 WA S 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 PAGE 5 OF 6 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 S UM 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 . ORDER P RONOUNCED IN THE OPEN COURT ON 2 7 . 0 4 .201 7. ( L.P. SAHU ) (AMIT SHUKLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 2 7 . 0 4 .2017 NARENDER COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT (APPEALS) 5) DR: ITAT ASSISTANT REGISTRAR PAGE 6 OF 6 DATE DRAFT DICTATED ON 24 .0 4 .2017 DRAFT PLACED BEFORE AUTHOR 26 .0 4 .2017 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. APPROVED DRAFT COMES TO THE SR.PS/PS 2 7 . 4 .2017 KEPT FOR PRONOUNCEMENT ON FILE SENT TO THE BENCH CLERK 2 7 . 4 .2017 DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.