Anupama Links Private Ltd., New Delhi V. ACIT, New Delhi

ITA 4186/DEL/2013

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 8855 (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; 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. 4186/DEL/2013 (ASSESSMENT YEAR: 2009-10) ANUPAMA LINKS PRIVATE LTD. VS. ACIT (NOW KNOWN AS PAUL MARKETING PVT. LTD.) CE NTRAL CIRCLE -21 WZ 6B/1, STREET NO. 20, SANT GARH, JH ANDEWALAN EXTENSION TILAK NAGAR NEW DELHI NEW DELHI PAN : AAGCA4464P (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. 39/ 2011-12 FOR AY 2009-10 BY ITA NO. 4186/ 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, 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, 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 ITA NO. 4186/ DEL/2013 3 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. 4186/ DEL/2013 4 4. THE LD. AR SUBMITTED THAT THE ASSESSING OFFI CER ISSUED NOTICE U/S 142(1) OF THE ACT ON 8.11.2010 FIXING THE DATE OF 15.11.2010 AND ON THE FIX DATE OF HEARING THE ASSESSEE REQUESTED T HE AO TO ADJOURN THE CASE OF THE MONTH OF JANUARY, 2011 BUT THE AO R EJECTED THE SAME AND COMPLETED THE ASSESSMENT PROCEEDINGS BY PASSING ORDER DATED 31.12.2010. THE AR VEHEMENTLY CONTENDED THAT IN THI S SITUATION IT CANNOT BE HELD THAT THE ASSESSEE DID NOT COMPLY WIT H THE NOTICE DATED 8.11.2010 OF THE AO AND HENCE PENALTY U/S 271(1)(B) OF THE ACT CANNOT BE IMPOSED. THE LD. DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT WHEN THE ASSES SEE IS NOT COOPERATING WITH THE ASSESSMENT PROCEEDINGS THEN TH E ASSESSING OFFICER HAS NO OPTION BUT TO COMPLY ASSESSMENT U/S 144 OF THE ACT AND IN THIS SITUATION PENALTY U/S 271(1)(B) OF THE ACT IS LEVIABLE. 5. ON CAREFUL CONSIDERATION OF ABOVE SUBMISS ION, WE ARE OF THE VIEW THAT THE ASSESSING OFFICER ISSUED NOTICE ON 8. 11.2010 FIXING THE DATE 15.11.2010 AND ASSESSEE BY WAY OF WRITTEN APPL ICATION REQUESTED FOR ADJOURNMENT TO JANUARY, 2011 IT WAS DISMISSED AND THE ASSESSING OFFICER PASS THE ASSESSMENT ORDER ON 31.12.2010 UNDER SECTION 144 OF THE ACT. ITA NO. 4186/ DEL/2013 5 6. THE DR HAS NO DISPUTE ON THIS FACT THAT THE A R SUBMITTED AN APPLICATION FOR ADJOURNMENT ON THE FIX DATE OF HEAR ING I.E. 15.11.2010. HENCE, IT CANNOT BE PRESUMED THAT THE ASSESSEE DID NOT COMPLY WITH THE NOTICE OF THE AO U/S 142(1) OF THE ACT. UNDER T HIS FACTS AND CIRCUMSTANCES, THE ASSESSEE CANNOT BE HELD GUILTY O F NON-COMPLYING WITH THE NOTICE ISSUED U/S 142(1) OF THE ACT AND PE NALTY U/S 271(1)(B) OF THE ACT IS NOT SUSTAINABLE AND THE AOS DIRECTED TO DELETE THE PENALTY. ACCORDINGLY SOLE GROUND OF THE ASSESSEE IS ALLOWED. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLO WED. 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. 4186/ 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 4. DRAFT APPROVED BY THE SECOND MEMBER 5. DATE OF APPROVED ORDER COMES TO THE SR. PS 6. DATE OF PRONOUNCEMENT OF ORDER 7. DATE OF FILE SENT TO THE BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER ITA NO. 4186/ DEL/2013 7