Mukesh Kumar Goel, Muzaffarnagar V. ITO, Muzaffarnagar

ITA 4079/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65308 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-08-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 09-08-2012
• Assessment Year: 2009-2010
• Appeal Filed On: 07-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R S NEGI SENIOR
• Keywords: Opportunity of being heard; Reasonable cause
• Section: 273B; 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E : NEW DELHI) SHRI U.B.S. BEDI, JUDICIAL MEMBER AND BEFORE SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.4079/DEL./2011 (ASSESSMENT YEAR : 2009-10) SHRI MUKESH KUMAR GOEL, VS. ITO, WARD 1 (1), C/O SHRI N.K. AGGARWAL, ADVOCATE MUZAFFARNAGAR. 21, GHER KHATTI, NEW MANDI, MUZAFFARNAGAR. (PAN : ACWPG1738R) (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI R.S. NEGI, SENIOR DR ORDER PER B.C. MEENA, ACCOUNTANT MEMBER : THIS APPEAL FILED BY THE ASSESSEE EMANATES FROM THE ORDER OF THE CIT (APPEALS), MUZAFFARNAGAR DATED 14.07.2011 FOR THE A SSESSMENT YEAR 2009-10. 2. THE ONLY ISSUE INVOLVED IN THE GROUNDS OF APPEAL IS SUSTAINING THE LEVY OF PENALTY OF RS.10,000/- U/S 271(1)(B) OF THE INCO ME-TAX ACT, 1961. 3. THE ASSESSEE IS AN INDIVIDUAL. THE RETURN OF IN COME FOR THE YEAR UNDER CONSIDERATION WAS FILED ON 29.03.2010. A NOTICE U/ S 143(2) WAS ISSUED ON 25.08.2010 AND THE HEARING WAS FIXED ON 13.09.2010. ON THIS DATE, TWO OF THE ASSESSEES REPRESENTATIVE, S/SHRI N.K. AGGARWAL AND D.K. GUPTA, ADVOCATES ITA NO.4079/DEL./2011 2 ATTENDED AND REQUESTED FOR TIME. THEREAFTER, THE C ASE WAS ADJOURNED ON VARIOUS OCCASIONS AND FINALLY, IT WAS FIXED FOR HEA RING ON 28.02.2011. PRIOR TO THAT THE HEARING TOOK PLACE ON 08.02.2011 ON WHICH SHRI N.K. AGARWAL ATTENDED AND SOUGHT THE ADJOURNMENT. THE ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS U/S 271(1)(B) OF THE INCOME-TAX ACT, 19 61 FOR NON-COMPLIANCE ON 28.02.2011. THE ASSESSING OFFICER LEVIED THE PENAL TY OF RS.10,000/- HOLDING THAT THE ASSESSEE IS AVOIDING DELIBERATELY TO COMPL Y WITH THE NOTICE U/S 142(1) WHICH WAS ISSUED ON 06.10.2010 FIXING THE HEARING O N 16.10.2010. 4. BEFORE US, NONE ATTENDED ON BEHALF OF THE ASSESS EE. HOWEVER, A WRITTEN SUBMISSION WAS FILED WHICH READ AS UNDER :- A PENALTY OF RS.10000/- WAS IMPOSED FOR NON-COMPLI ANCE OF NOTICE U/S 143(2)/142(1). THE MOTHER OF THE COUNSEL ASSESSEE WAS EXPIRED AND COUNSEL WAS OUT OF STATION WHICH WA S REASONABLE CAUSE NOT TO BE COMPLIANCE NOTICE. NO SH OW CAUSE NOTICE WAS ISSUED. U/S 273B NO PENALTY SHALL BE IMPOSABLE ON THE PERSO N OR THE ASSESSEE, AS THE CASE MAY BE, FOR ANY FAILURE REFER RED TO IN THE SAID PROVISIONS IF HE PROVES THAT THERE WAS REASONA BLE CAUSE FOR THE FAILURE. U/S 274(1) NO ORDER IMPOSING A PENALTY UNDER THIS C HAPTER SHALL BE MADE UNLESS THE ASSESSEE HAS BEEN HEARD, OR HAS BEEN GIVEN A REASONABLE OPPORTUNITY OF BEING HEARD. MOTHER OF ASSESSE COUNSEL EXPIRED ON 25/02/2011 AT ALLHABAD. COUNSEL OUT OF STATION ON 28/02/2011 AT ALLHABAD ON MOTHER DEATH. ITA NO.4079/DEL./2011 3 NO SHOWCAUSE WAS ISSUED BEFORE IMPOSING PENALTY WHICH IS MANDATORY U/S 273 AND 274(1) CIT APPEAL ORDER BASED ON, NO DEATH CERTIFICATE WAS FILED AND WARRING BEFORE DATE OF HEARING 28/02/2011 WAS ISSUED BY ITO TANTAMOUNT A SHOW CAUSE. CASE WAS TIMEBARD ON 31/12/2011, THERE WAS NO HURRY. WARNING AT CASE HEARING CAN NOT BE TEATED AS SHOWCAUSE. PENALTY MAY BE A TOKEN PENALTY OF RS.100/- NOT MAXIMUM PENALTY RS.10000/-. A HARS VIEW WAS TAKEN IN IMPOSING PENALTY. ON THE OTHER HAND, THE LD. DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND PLEADED THAT THE ASSESSEE HAS FAILED TOO COMPLY WITH THE NOTICE ISSUED U/S 142(1) OF THE ACT. THE LD. DR ALSO PLEADED THAT TH ERE WAS NO REASONABLE CAUSE FOR THE FAILURE TO COMPLY WITH THE NOTICE U/S 142(1) OF THE ACT AND HE PLEADED TO SUSTAIN THE ORDERS OF THE AUTHORITIES BE LOW. 5. WE HAVE HEARD THE LD. DR AND ALSO GONE THROUGH T HE WRITTEN SUBMISSIONS OF THE ASSESSEE. ON 08.02.2011, SHRI N .K. AGARWAL, ADVOCATE ATTENDED AND SIGHT ADJOURNMENT. THE CASE WAS ADJOU RNED TO 28.02.2011. IN THIS ADJOURNMENT, ALTHOUGH THE ASSESSING OFFICER HA S MADE IT CLEAR THAT NON- COMPLIANCE ON 28.02.2011 WILL RENDER ASSESSEE TO LE VY PENALTY U/S 271(1)(B) OF THE ACT. THE ASSESSEES PLEA IS THAT THE MOTHER OF ONE OF THE REPRESENTATIVES OF THE ASSESSEE DIED ON 25.02.2011 AT ALLAHABAD, TH EREFORE, THE AUTHORIZED ITA NO.4079/DEL./2011 4 REPRESENTATIVE OF THE ASSESSEE HAS TO GO OUT OF STA TION AND COULD NOT COMPLY ON 28.02.2011. CONSIDERING THE FACT THAT MOTHER OF ON E OF THE REPRESENTATIVES OF THE ASSESSEE DIED AT ALLAHABAD AND THE COUNSEL WAS NOT IN STATION ON 28.02.2011, IN OUR CONSIDERED VIEW, THIS WAS A REAS ONABLE CAUSE FOR THE FAILURE OF THE ASSESSEE TO COMPLY WITH. THE LEVY OF PENALT Y MUST BE SHOWN TO BE JUSTIFIED BY THE FACTS OF THE CASE. IN VIEW OF THE SE FACTS, THEREFORE, WE DIRECT TO DELETE THE LEVY OF PENALTY. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN OPEN COURT ON THIS 24 TH DAY OF AUGUST, 2012. SD/- SD/- (U.B.S. BEDI) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 24 TH DAY OF AUGUST, 2012 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), MUZAFFARNAGAR. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.