Bhawana Bhalla, New Delhi V. ACIT, New Delhi

ITA 4184/DEL/2013

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 8891 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 24-02-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 09-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y KAKKAR
• Assessee Lawyers: B K DHINGRA
• Section: 142(1); 27; 144

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL IN (DELHI BENCH A NEW DELHI) BEFORE SHRI N.K.SAINI, ACCOUNTANT MEMBER AND SHRI C.M.GARG, JUDICIAL MEMBER ITA NO. 4184/DEL/2013 (ASSESSMENT YEAR: 2009-10) BHAWANA BHALLA VS. ACIT (PROP. M/S. B.B.CREATIONS), CENTRAL CIRCLE - 21, H-59, WEST PATEL NAGAR ROOM NO. 344, NEW DELHI JHANDEWALAN EXTENSION NEW DELHI PAN : AFUPB4018F (APPLICANT) (RESPO NDENT) ASSESSEE BY : SH. B.K.DHINGRA, CA REVENUE BY : SHRI Y.KAKKAR, DR DATE OF HEARING : 24.02.2015 DATE OF PRONOUNCEMENT : 27.02.2015 ORDER PER C.M.GARG, JUDICIAL MEMBER : THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AG AINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) II, NEW DELHI DATED 13/05/2013 IN APPEAL NO. 51/ 2011-12 FOR AY 2009-10 BY ITA NO. 4184/ DEL/2013 2 WHICH PENALTY ORDER DATED 17.06.2011 IMPOSING PENAL TY OF RS. 10,000/- U/S 271(1)(B) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT) HAS BEEN UPHELD. 2. ALTHOUGH, THE ASSESSEE HAS RAISED AS MANY AS 7 GROUNDS IN THIS APPEAL BUT EXCEPT GROUND NO ONE OTHER GROUNDS ARE A RGUMENTATIVE AND SUPPORTIVE TO THE MAIN GROUND NO. 1 WHICH READS AS UNDER :- THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE PROVISIONS OF LAW, THE LD. CIT (APPEALS) HAS FAILED TO APPRECIATE THAT THE ORDER LEVYING PENALTY PASSED BY THE LD. AO U/S 271(1)(B) IS ILLEGAL, BA DIN LAW, WITHOUT JU RISDICTION, TIME BARRED AND WRONG ON FACTS. 3. WE HAVE HEARD ARGUMENT OF BOTH THE SIDES AND CAREFULLY PERUSED THE RELEVANT MATERIAL PLACED ON THE RECORDS . THE LD. ASSESSEES REPRESENTATIVE (AR) PLACED HIS RELIANCE ON THE VARIOUS DECISIONS OF COORDINATE BENCH OF TRIBUNAL INCLUDING DECISION OF ITAT, DELHI BENCH F IN ITA NO. 4237/ DEL/ 2013 DATED 20.6 .2014 FOR A.Y. 2009-10 WHEREIN DEALING WITH THE OTHER DECISIONS OF THE TRIBUNAL ON THE SIMILAR POINT IT HAS BEEN HELD THUS ; 3. PENALTY U/S 271(1)(B) HAS BEEN LEVIED FOR THE ASSESSEES FAILURE TO COMPLY WITH THE NOTICE ISSUED U/S 142(1) OF THE ACT ALONGWITH THE DETAILED QUESTIONNA IRE, FIXING THE CASE FOR HEARING TO 18.11.2010. AT THE V ERY OUTSET THE LD. AR SUBMITTED LESS THAN 10 DAYS WERE GIVEN T O THE ITA NO. 4184/ DEL/2013 3 COMPLY WITH THE NOTICE AND THEREFORE PENALTY U/S 27 1(1)(B) WAS NOT JUSTIFIED. IT WAS SUBMITTED UNDER SIMILAR CIRCUMSTANCES THE HONBLE TRIBUNAL IN THE FOLLOWING CASES HAVE DELETED THE PENALTY :- (I) IVAN INFOTECH PRIVAT LIMITED VS. ACIT, ITA NO. 4460/DEL/2013 (ORDER DATED 23.1.2014)(PAGES NOS. 17 TO 20 OF PAPER BOOK) (II) TANVIR FINANCE & LEASING PRIVATE LIMITED VS. A CIT, ITA NO. 4238/DEL/2013 (ORDER DATED 14.3.2014)(PAGES NOS. 21 TO 25 OF PAPER BOOK), (III) SATKAR ROADLINES PRIVATE LIMITED VS. ACIT, IT A NO. 4187/DEL/2013 (ORDER DATED 12.3.2014)(PAGES NOS. 29 TO 33 OF PAPE R BOOK) AND (IV) SHIVAANSH ADVERTISING AND PUBLICATIONS (P) LTD . VS. ACIT, ITA NO. 4239/DEL/2013 (ORDER DATED 3.1.2014)(PAGES NOS. 34 & 35 OF PAPER BOOK) 4. THE LD. DR RELIED ON THE ORDERS OF THE INCOME TA X AUTHORITIES . 5. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. NOTICE U/S 142 (1) OF THE CASE WAS ISSUED ON 8.11.2010 ALONG WITH THE DETAILED QUESTIO NNAIRE FIXING THE CASE FOR HEARING TO 18.11.2010. IT IS NO T MENTIONED IN THE PENALTY ORDER WHEN THE NOTICE HAS BEEN SERVED UPON THE ASSESSEE. EVEN IT IS PRESUMED THAT THE NOTICE WAS SERVED ON THE NEXT DATES OR WITHIN TWO O R THREE DAYS, THE PERIOD LEFT WITH THE ASSESSEE TO COMPLY W ITH THE NOTICE WAS TOO SHORT TO BE HELD AS A REASONABLE PER IOD FOR COMPLY WITH THE NOTICE. THEREFORE, IN OUR OPINION T HE TIME OF LESS THAN 10 DAYS ALLOWED BY THE AO FOR COMPLYING W ITH THE DETAILED QUESTIONNAIRE CANNOT BE SAID TO BE SUFFICI ENT TIME BEING ALLOWED TO THE ASSESEE AND THEREFORE FAILURE OF THE ASSESSEE TO COMPLY WITH SUCH NOTICE CAN NOT BE SAID TO BE A DEFAULT WHICH MAY JUSTIFY THE LEVY OF PENALTY U/S 271 (1) (B) OF THE ACT. ACCORDINGLY THE SAME IS DELETED. ITA NO. 4184/ DEL/2013 4 4. THE LD. AR SUBMITTED THAT THE SAID NOTICE U /S 143(2) AND 142(1) OF THE ACT WERE NOT RECEIVED BY THE ASESSEE AND THE REFORE THE ASSESSEE COULD NOT ATTEND THE ASSESSMENT PROCEEDIN GS. THE AR FURTHER CONTENDED THAT REVENUE AUTHORITIES HAVE NOT FOUND THAT DESPITE OF DUE SERVICE OF NOTICE THE ASSESSEE REMA IN ABSENT WITHOUT ANY BONA FIDE CAUSE ON THE FIXED DATE OF HEARING. T HE LD. AR ALSO POINTED OUT WHEN ANY NOTICE U/S 143(2) AND 142(1) OF THE ACT WERE NOT RECEIVED BY THE ASSESSEE THEN THERE WAS NO QUES TION OF NON - COMPLIANCE AND LEVYING OF PENALTY FOR NON-COMPLIANC E OF THAT UNSERVED NOTICE. 5. THE LD. DR SUPPORTED THE ORDERS OF THE AUTH ORITIES BELOW. 6. FROM THE BARE READING OF THE IMPUGNED ORDER, WE OBSERVE THAT THE ASSESSING OFFICER IMPOSED PENALTY ON THE ASSESS EE FOR NON- COMPLIANCE OF THE NOTICE U/S 142(1) DATED 16.11.201 0 WHICH WAS ACTUALLY ISSUED ON 19.11.2010 FIXING THE DATE 26.11 .2010. FROM PAPER BOOK PAGE NO. 8, WE ALSO OBSERVE THAT THE ASSESSEE REQUESTED FOR ADJOURNMENT FOR THE MONTH OF JANUARY, 2011 BY FILIN G AN APPLICATION ON 26. 11.2010 BUT THE SAME WAS REJECTED BY THE AO AND HE PASSED THE ASSESSMENT ORDER U/S 144 OF THE ACT ON 31.12.20 10. ITA NO. 4184/ DEL/2013 5 IN THIS SITUATION, IT CANNOT BE SAID THAT TH E ASSESSEE DID NOT RESPONSE TO THE NOTICE DATED 16/19.11.2010 AND HENC E PENALTY CANNOT BE IMPOSED ON THE ASSESSEE U/S 271(1)(B) OF THE ACT. ACCORDINGLY MAIN GROUND OF THE ASSESSEE IS ALLOWED AND AOS DIRECTED TO DELETE THE PENALTY. IN THE RESULT APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN OPEN COURT ON 27 TH FEBRUARY, 2015. SD/- SD/- (N.K.SAINI) (C.M.GARG) ACCOUNTANT MEMBER JUDICI AL MEMBER DATED 27 TH FEB. 2015 B.RUKHAIYAR COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. CIT (ITAT), NEW DELHI. AR, ITAT N. DELHI ITA NO. 4184/ DEL/2013 6 SL. NO. DESCRIPTION DATE 1. DATE OF DICTATION BY THE AUTHOR 25.02.2015 2. DRAFT PLACED BEFORE THE DICTATING MEMBER 25.02.2015 3. DRAFT PLACED BEFORE THE SECOND MEMBER 26.02.2015 4. DRAFT APPROVED BY THE SECOND MEMBER 26.02.2015 5. DATE OF APPROVED ORDER COMES TO THE SR. PS 26.02.2015 6. DATE OF PRONOUNCEMENT OF ORDER 27.02.2015 7. DATE OF FILE SENT TO THE BENCH CLERK 27.02.2015 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER ITA NO. 4184/ DEL/2013 7