Bali Farms Pvt. Ltd., New Delhi V. ACIT, New Delhi

ITA 4185/DEL/2013

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 8873 (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: BHUPESH KUMAR DHINGRA
• Section: 142(1); 27

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. 4185/DEL/2013 (ASSESSMENT YEAR: 2009-10) BALI FARMS PVT. LTD. VS. ACIT WZ-13, GALI NO. 18, CENTRAL CIRCLE -21, KRISHNA PARK ROOM N O. 344, TILAK NAGAR JHANDEWALAN EXTENSION NEW DELHI NEW DELHI PAN : AADCB1709R (APPLICANT) ( RESPONDENT) ASSESSEE BY : SH. BHUPESH KUMAR 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 14/05/2013 IN APPEAL NO. 37/ 2011-12 FOR AY 2009-10 BY ITA NO. 4185/ DEL/2013 2 WHICH PENALTY ORDER DATED 17.06.2011 IMPOSING PENAL TY OF RS. 20,000/- 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, BAD IN 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. 427/ DEL/ 2013 DATED 24.6. 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, ITA NO. 4185/ DEL/2013 3 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 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 CANNOT BE SAID TO BE ITA NO. 4185/ DEL/2013 4 A DEFAULT WHICH MAY JUSTIFY THE LEVY OF PENALTY U/S 271 (1) (B) OF THE ACT. ACCORDINGLY THE SAME IS DELETED. 4. THE LD. AR SUBMITTED THAT THE ASSESSING OFFI CER ISSUED NOTICE TO THE ASSESSEE ON 3.11.2010 FIXING THE DATE ON 12. 11.2010. THE LD. AR, FURTHER, CONTENDED THAT THE ASSESSEE BY VIEW OF APPLICATION DATED 15.11.2010 REQUESTED THE AO TO ADJOURN THE CASE TO THE MONTH OF JANUARY, 2011 BUT THE SAME WAS REJECTED AND THE ASS ESSING OFFICER COMPLETE THE ASSESSMENT ON 31.12.2010. THE LD. AR, FURTHER, CONTENDED THAT IN THIS SITUATION CANNOT BE HELD THA T THE ASSESSEE DID NOT COMPLY WITH THE NOTICE U/S 142(1) OF THE ACT IS SUED BY THE AO ON 3.11.2010. THE LD. DR SUPPORTED THE ORDERS OF THE A UTHORITIES BELOW AND SUBMITTED THAT THE PENALTY WAS LEVIED ON JUSTIF IED AND COGENT REASON. 5. ON CAREFUL CONSIDERATION OF ABOVE, WE OBSER VE THAT THE AO ISSUED NOTICE ON 3.11.2010 FIXING THE DATE FOR 12.1 1.2010 AND ASSESSEE SOUGHT ADJOURNMENT BY FILING WRITTEN APPLI CATION WHICH WAS REJECTED BY AO. IN THIS SITUATION, THE ASSESSEE CAN NOT BE HELD GUILTY OF NON-COMPLYING WITH THE NOTICE OF THE AO. FIRSTLY, THE ASSESSEE WAS GIVEN ONLY SEVEN DAYS TIME TO COMPLY WITH THE NOTIC E AND SECONDLY ITA NO. 4185/ DEL/2013 5 HIS PRAYER FOR ADJOURNMENT WAS ALSO REJECTED WITHOU T ANY COGENT AND JUSTIFIED REASON. IN THIS SITUATION THE ASSESSEE CA NNOT BE HELD GUILTY OF NON-COMPLYING WITH THE NOTICE OF THE AO ISSUED U/S 142(1) OF THE ACT AND PENALTY U/S 271(1) (B) OF THE ACT IS NOT LEVIAB LE IN ABOVE STATED SET OF FACTS AND CIRCUMSTANCES. ACCORDINGLY, SOLE G ROUND OF THE ASSESSEE IS ALLOWED AND AO IS DIRECTED TO DELETE TH E PENALTY. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED. 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. 4185/ 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. 4185/ DEL/2013 7