M/s. Bhudeva Commodities Ltd., New Delhi V. DCIT, New Delhi

ITA 4188/DEL/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 4055 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 29-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S R SENAPATI
• Keywords: Search and seizure; Principle of natural justice; Initiation of penalty proceedings; Reasonable cause
• Section: 273B; 153A; 144

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL, DELHI BENCH C, NEW DELHI BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA NOS.4188 TO 4191/DEL./2015 ASSESSMENT YEARS: 2005-06 TO 2008-09 BUDHEVA COMMODITIES LIMITED, FLAT NO. 4-R.R. APARTMENT, 3-4, MANGLAPURI, MEHRAULI, NEW DELHI.(PAN0AACCB6744K) (APPELLANT) VS. DCIT, CENTRAL CIRCLE - 14, NEW DELHI (RESPONDENT) ITA NOS.4192 TO 4196/DEL./2015 ASSESSMENT YEARS: 2005-06 TO 2008-09 ASHUTOSH DEVELOPERS PVT. LTD., FLAT NO. 4-R.R. APARTMENT, 3-4, MANGLAPURI, MEHRAULI, NEW DELHI.(PAN-AAECA6202B) (APPELLANT) VS. DCIT, CENTRAL CIRCLE - 14, NEW DELHI (RESPONDENT) ITA NOS.4197 TO 4203/DEL./2015 ASSESSMENT YEARS: 2002-03 TO 2008-09 ALANKAR SAPHIRE DEVELOPMENT PVT. LTD., FLAT NO. 4-R.R. APARTMENT, 3-4, MANGLAPURI, MEHRAULI, NEW DELHI.(PAN-AABCA 3448C) (APPELLANT) VS. DCIT, CENTRAL CIRCLE - 14, NEW DELHI (RESPONDENT) ITA NOS.4204 TO 4207/DEL./2015 ASSESSMENT YEARS: 2005-06 TO 2008-09 ELITE BUILDWELL PVT. LTD., FLAT NO. 4-R.R. APARTMENT, 3-4, MANGLAPURI, MEHRAULI, NEW DELHI.(PAN-AABCE3947N) (APPELLANT) VS. DCIT, CENTRAL CIRCLE - 14, NEW DELHI (RESPONDENT) ITA NOS. 4188 TO 4213, 4693 TO 4696, 4698, 4225 & 4 226/DEL./2015 2 ITA NOS.4208 & 4209/DEL./2015 ASSESSMENT YEARS: 2007-08 & 2008-09 ASHUTOSH VILLAS PVT. LTD. FLAT NO. 4-R.R. APARTMENT, 3-4, MANGLAPURI, MEHRAULI, NEW DELHI.(PAN-AAGCA0943D) (APPELLANT) VS. DCIT, CENTRAL CIRCLE - 14, NEW DELHI (RESPONDENT) ITA NOS.4210 TO 4213/DEL./2015 ASSESSMENT YEARS: 2005-06 TO 2008-09 BELIEVE DEVELOPERS & PROMOTERS PVT. LTD., FLAT NO. 4-R.R. APARTMENT, 3-4, MANGLAPURI, MEHRAULI, NEW DELHI.(PAN-AACCB4635P) (APPELLANT) VS. DCIT, CENTRAL CIRCLE - 14, NEW DELHI (RESPONDENT) ITA NOS.4225 & 4226/DEL./2015 ASSESSMENT YEARS: 2007-08 & 2008-09 AKDANI BUILDCON PVT. LTD. FLAT NO. 4-R.R. APARTMENT, 3-4, MANGLAPURI, MEHRAULI, NEW DELHI.(PAN-AAFCA8996F) (APPELLANT) VS. DCIT, CENTRAL CIRCLE - 14, NEW DELHI (RESPONDENT) ITA NOS.4693 TO 4696 & 4698/DEL./2015 ASSESSMENT YEARS: 2002-03 TO 2005-06 & 2007-08 RAJEEV KUMAR PARASHAR, A-175, SECOND FLOOR, BLOSSOMS-1, MAYFEILD GARDENS, GURGAON. (PAN-AMNPP6084A) (APPELLANT) VS. DCIT, CENTRAL CIRCLE - 14, NEW DELHI (RESPONDENT) APPELLANT S BY SH. GAUTAM JAIN, ADVOCATE AND SH. LALIT MOHAN, C.A. RESPONDENT BY SH. S.R. SENAPATI, SR. DR ITA NOS. 4188 TO 4213, 4693 TO 4696, 4698, 4225 & 4 226/DEL./2015 3 ORDER PER BENCH: THE ABOVE BATCHES OF APPEALS AT THE INSTANCE OF DI FFERENT ASSESSEES ARISE OUT OF RESPECTIVE ORDERS OF THE LD. CIT(A)-XXVI, NE W DELHI FOR THE CAPTIONED ASSESSMENT YEARS. IN ALL THESE APPEALS, THE ASSESSE ES HAVE CHALLENGED THE SUSTENANCE OF PENALTIES IMPOSED AGAINST THE ASSESSE ES TO THE TUNE OF RS.20,000/- EACH U/S. 271(1)(B) OF THE IT ACT, 1961 FOR NON-COMPLIANCE OF STATUTORY NOTICES AS MENTIONED IN THE RESPECTIVE PE NALTY ORDERS AS WELL AS IN THE IMPUGNED ORDERS. 2. REFERRING TO THE EARLIER DECISIONS OF ITAT, DELH I BENCHES IN OTHER CASES OF THE ASSESSEES GROUP OF CONCERNS, THE LD. AR SUB MITTED THAT THE PENALTIES IMPOSED U/S. 271(1)(B) OF THE ACT IN THE IDENTICAL FACTS AND CIRCUMSTANCES OF THE CASES HAVE BEEN DELETED AND THEREFORE, THE SUST ENANCE OF PENALTIES IN THE INSTANT CASES IS NOT JUSTIFIED IN VIEW OF THE DECIS IONS OF COORDINATE BENCHES. ON THE OTHER HAND, THE LD. DR RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. DATE OF HEARING 19.01.2018 DATE OF PRONOUNCEMENT 22 .01.2018 ITA NOS. 4188 TO 4213, 4693 TO 4696, 4698, 4225 & 4 226/DEL./2015 4 3. HAVING CONSIDERED THE RIVAL SUBMISSIONS IN THE L IGHT OF RELEVANT MATERIAL ON RECORD, WE FIND THAT THE ISSUE OF PENALTY U/S. 2 71(1)(B) OF THE ACT ALREADY STOOD DECIDED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE IN OTHER GROUP CASES OF ASSESSEES IN M/S. WITNESS BUILDERS P VT. LTD. VS. DCIT & OTHERS (ITA NO. 4610/DEL./2015 & OTHERS) VIDE COMMON ORDER DATED 31.08.2017 IN THE IDENTICAL FACTS AND CIRCUMSTANCES OF THE CASES. FOR THE SAKE OF CONVENIENCE AND COMPLETENESS, THE FACTS NARRATED AND FINDINGS G IVEN IN THE AFORESAID DECISION ARE REPRODUCED AS UNDER : 3. THE ASSESSEE IS MAINLY AGGRIEVED BY THE LEVY OF PENALTY OF RS. 20,000/- U/S 271(L)(B) FOR ALL THE IMPUGNED ASSESSMENT YEAR WHIC H WAS ON ACCOUNT OF FAILURE TO COMPLY WITH THE STATUTORY NOTICES, FIXING THE DATE OF HEARING ON 30.11.2012. 4. THE BRIEF FACTS QUA THE LEVY OF IMPUGNED PENALTY ARE THAT THE ASSESSEE WAS WORKING WITH THE MDLR GROUP OF COMPANIES AND WERE A LSO DIRECTOR AND SHARE HOLDER IN SOME OF THE GROUP COMPANIES. A SEARCH AND SEIZURE ACTION U/S 132(1) WAS CONDUCTED AT VARIOUS PREMISES OF MDLR GROUP AND ALS O AT THE RESIDENTIAL PREMISES IN JANUARY, 2008. IN PURSUANCE OF SEARCH AND SEIZUR E OPERATION, PROCEEDINGS U/S 153A WERE INITIATED IN CASES OF THE ASSESSEE AND AS SESSMENT WAS FOR THE IMPUGNED ASSESSMENT YEAR PASSED UNDER SECTION 144 READ WITH SECTION 153A. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS U/S 271(1)(B) FOR NON-COMPLIANCE OF CER TAIN STATUTORY NOTICES BY THE ASSESSEE AND ACCORDINGLY, SHOW CAUSE NOTICES WAS IS SUED. IN RESPONSE TO THE SHOW CAUSE NOTICE, THE ASSESSEE FILED VERY DETAIL EXPLAN ATION, CHALLENGING THE VALIDITY OF INITIATION OF PENALTY PROCEEDINGS AND EXPLAINING TH E REASONABLE CAUSE FOR NON- COMPLIANCE ON THE APPOINTED DATE. THE AO, HOWEVER, DISREGARDING THE EXPLANATION OF THE ASSESSEE, IMPOSED PENALTY U/S. 271(1)(B) OF THE ACT. THE LD. CIT(A) AFFIRMED THE PENALTY ORDER PASSED BY THE ASSESSING OFFICER. 5. DURING THE COURSE OF HEARING, THE LD. COUNSEL FO R THE ASSESSEE, AT THE OUTSET, SUBMITTED THAT THE DEPARTMENT HAS IMPOSED SIMILAR P ENALTIES IN OTHER GROUP CASES ON THE IDENTICAL FACTS AND CIRCUMSTANCES AND THE IT AT IN ONE OF SUCH GROUP CASES, VIZ., JWALA PRASAD AGGARWAL VS. DCIT IN APPEALS IN ITA NOS. 4392 TO 4398/DEL./2015 FOR ASSESSMENT YEARS 2002-03 TO 2008-09, HAS CANCEL LED THE SIMILAR PENALTIES VIDE ORDER DATED 25.08.2015 ON THE IDENTICAL CONTENTIONS OF THE ASSESSEE AND SIMILAR FACTS ATTENDING TO THE PRESENT CASES. HE, THEREFORE, CONT ENDED THAT THE ISSUE INVOLVED IN ALL THESE APPEALS, BEING SIMILAR, IS SQUARELY COVERED I N FAVOUR OF THE ASSESSEES BY THE AFORESAID DECISION OF CO-ORDINATE BENCH. ITA NOS. 4188 TO 4213, 4693 TO 4696, 4698, 4225 & 4 226/DEL./2015 5 6. THE LD. DR, ON THE OTHER HAND, RELIED ON THE ORD ERS OF THE AUTHORITIES BELOW. 7. HAVING CONSIDERED THE RIVAL SUBMISSIONS IN THE L IGHT OF MATERIAL AVAILABLE ON RECORD, WE FIND THAT THE ISSUE INVOLVED IN THE PRES ENT APPEALS IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF CO-ORDINA TE BENCH IN THE CASE OF ASSESSEES GROUP CASE, JAWALA PRASAD AGGARWAL VS. DCIT(SUPRA), WHEREIN THE ITAT, DELHI BENCH HAS DELETED THE PENALTIES ON THE IDENTICAL FACTS AN D CIRCUMSTANCES OF THE CASE. IN THAT CASE ALSO, THE ASSESSEE HAD MADE SIMILAR ARGUMENTS AS MADE IN THE PRESENT APPEALS. THE RELEVANT PORTION OF THE SAID ORDER IS REPRODUCE D HEREIN BELOW FOR READY REFERENCE : THE SUM AND SUBSTANCE OF ASSESSEE'S EXPLANATION IS THAT- > FIRSTLY, PENALTY NOTICE U/S 271(1)(B) ITSELF IS V AGUE BECAUSE IT DOES NOT SPECIFY ABOUT ANY NOTICE OR DATE OF COMPLIANCE FOR WHICH THERE WA S FAILURE ON PART OF THE ASSESSEE, THAT IS, IT DOES NOT MENTION ABOUT ANY NOTICE OR AN Y DATE OF NON-COMPLIANCE FOR WHICH SUCH PENALTY PROCEEDINGS HAS BEEN INITIATED; > SECONDLY, THE ASSESSEE HAS ULTIMATELY MADE COMP LIANCES OF ALL THE NOTICES BY SUBMITTING IT'S REPLY ON THE DETAILS AND QUERY ASKED BY THE AO ON THE DAK COUNTER OR THROUGH REGISTERED/SPEED POST; > THIRDLY, IT WAS SUBMITTED THAT MORE THAN 303 GROU P ASSESSMENTS WERE CONDUCTED DURING THE SHORT SPAN OF FIVE MONTHS, HENCE IT WAS VERY DIFFICULT TO COMPLY WITH ALL THE NOTICES IN ALL THE CASES AT THE APPOINTED DATES, BUT THE ASSESSEE THOUGH BELATEDLY ON SOME OCCASION DULY SUBMITTED ALL THE REPLIES BEFORE THE ASSESSING OFFICER DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS OF THE ASSESSE E. > LASTLY, IT WAS SUBMITTED THAT THE MAIN CONTROLLI NG PERSON, SHRI GOPAL KUMAR GOYAL WHO WAS LOOKING AFTER THE ENTIRE MATTER WAS DETAINE D IN JUDICIAL CUSTODY SINCE AUGUST, 2012 AND WAS THERE FOR MORE THAN 2 YEARS. SINCE, SH RI GOPAL KUMAR GOYAL WAS ENTRUSTED WITH ALL THE DECISIONS AND WAS AWARE OF T HE TAX MATTERS AND DOCUMENTS; THEREFORE, THERE WAS DELAY IN COLLECTING INFORMATIO N AND CONSEQUENTLY MAKING CERTAIN COMPLIANCES. THUS, IT WAS PLEADED THAT THERE WAS A REASONABLE CAU SE FOR DELAY IN SUBMITTING THE REPLIES OR NON-COMPLIANCE ON THE APPOINTED DATE. 5. HOWEVER, THE LD. ASSESSING OFFICER LEVI ED THE PENALTY OF RS.20,000/- ON THE GROUND THAT THE ASSESSEE DID NOT ATTEND OFFICES IN RESPONSE TO THE VARIOUS NOTICES ISSUED OR DATE FIXED ON TWO OF THE OCCASIONS. 6. THE LEARNED CIT(APPEALS) TOO HAS CONFIRMED THE SAID PENALTY AFTER OBSERVING AND HOLDING AS UNDER- '8.3. NONE OF THE REASONS GIVEN IN THE WRITTEN SUBMI SSION, NAMELY, SEARCH OPERATIONS ON THE MDLR GROUP IN JANUARY 2008, DETEN TION OF SHRI GOPAL GOYAL, ITA NOS. 4188 TO 4213, 4693 TO 4696, 4698, 4225 & 4 226/DEL./2015 6 POOR TURN-OUT OF EMPLOYEES AT WORK PLACE, LARGE NUM BER OF PENDENCY OF ASSESSMENTS U/S 153A, AND PREPARATION OF VOLUMINOUS DETAILS, CONSTITUTE 'REASONABLE CAUSE' THAT PREVENTED THE APPELLANT FROM COMPLYING WITH THE AFOREMENTIONED NOTICES OR FILING LETTERS TO SEEK AD JOURNMENT. SEARCH HAD TAKEN PLACE IN JANUARY 2008, FOLLOWING WHICH 153A PROCEED INGS WERE INEVITABLE. THE REVISION PETITIONS U/S 264 WERE MOVED BY THE APPELL ANT AND THE SUBSEQUENT ASSESSMENTS WERE REQUIRED TO BE COMPLETED BY THE AO BEFORE THE LIMITATION DATE, IN RESPECT OF WHICH ALSO, AS PER THE AO, THE REQUISITE DETAILS WERE NOT BEING FILED. IN CONSIDERING THE MATTER OF PENALTY U/S 271 (1)(B), THAT RELATES TO NON- COMPLIANCE TO A STATUTORY NOTICE, ISSUED IN THE CAS E OF A SPECIFIC ASSESSEE FOR A PARTICULAR AY REQUIRING ATTENDANCE ON THE STATED DA TE, THE PENDENCY OF A LARGE NUMBER OF OTHER CASES OF THE GROUP IS AN IRRELEVANT FACT. MOREOVER, THE BURDEN OF PENDENCY OF ASSESSMENTS WAS LARGER FOR THE AO, W HO WAS REQUIRED TO EXAMINE EACH CASE, EXAMINE THE SEIZED MATERIALS, OBTAIN THE EXPLANATION OF EACH ASSESSEE, CARRY OUT NECESSARY VERIFICATIONS, AFFORD OPPORTUNITY TO EACH OF THEM IN TERMS OF THE PRINCIPLE OF NATURAL JUSTICE, AND T HEREAFTER PASS THE ASSESSMENT ORDER BEFORE THE TIME BARRING DATE. THUS, THE REASONS CITED IN THE WRITTEN SUBMISSION ARE REJECTED. 8.4. FILING OF SEVERAL WRIT PETITIONS BEFORE THE HON 'BLE HIGH COURT, WHICH IN TURN REQUIRED SUBSTANTIAL PAPER WORK WAS A PERSONAL AND PRIVATE DECISION OF THE ASSESSEES OF THE GROUP AND CAN HARDLY CONSTITUTE A JUSTIFICATION FOR NON- COMPLIANCE OF THE STATUTORY NOTICES IN THE CASE OF THE APPELLANT. MOREOVER, IF THE 'CIRCUMSTANCES', CITED AS 'REASONABLE CAUSE' FOR NON -COMPLIANCE OF STATUTORY NOTICES, DID NOT COME IN THE WAY OF FILING THE WRIT PETITIONS, THESE COULD NOT POSSIBLY HAVE HINDERED THE PRESENCE OF THE ASSESSEE/ A/R BEFORE THE AO ON 30.11.2012 AND 28.12.2012. 8.5. AS PER SECTION 271(1)(B) READ WITH SECTION 273 B, PENALTY U/S 271(1)(B) IS VISITED UPON THE TAXPAYER WHO HAS FAILED TO COMPLY WITH THE NOTICES MENTIONED THEREIN, FOR EACH DEFAULT UNLESS REASONABLE CAUSE FO R SUCH FAILURE IS PROVEN. IN THE CASE AT HAND, THE APPELLANT HAS MADE ASSERTIONS AND CLAIMS THAT ARE NOT VALID FOR NON-COMPLIANCE OF STATUTORY NOTICES. NO C OMPELLING AND REASONABLE CAUSE FOR FAILURE TO COMPLY WITH THE STATUTORY NOTI CES HAS BEEN ADVANCED. 8.6. WHILE EXAMINING THE MATTER OF PENALTY U/S 271( 1) (B) READ WITH SECTION 274, THE ONLY ASPECT THAT HAS TO BE EXAMINED IS WHET HER THERE WAS ANY REASONABLE CAUSE THAT PREVENTED THE APPELLANT FROM C OMPLYING WITH THE STATUTORY NOTICES ISSUED BY THE AO. HERE, THE APPEL LANT DID NOT COMPLY WITH THE STATUTORY NOTICES ON 2 DIFFERENT OCCASIONS SPREAD O VER A PERIOD OF 3 MONTHS. THE APPELLANT COULD HAVE ESCAPED FROM THE RIGORS OF PEN ALTY, HAD THE STATUTORY NOTICE BEEN ACKNOWLEDGED AND ADJOURNMENT REQUESTED T IMELY. HOWEVER, THE APPELLANT CHOSE TO COMPLETELY IGNORE THE STATUTORY NOTICES, AND THEREFORE IN THE ABSENCE OF A REASONABLE CAUSE, BECAME LIABLE FOR PENAL TY U/S 271(1)(B). 7. BEFORE US, THE LD. COUNSEL SUBMITTED THAT IN RESP ONSE TO THE SHOW CAUSE NOTICE U/S 271(1)(B), THE ASSESSEE HAS FILED VERY-EXHAUSTIVE R EPLY BEFORE THE ASSESSING OFFICER. THE ITA NOS. 4188 TO 4213, 4693 TO 4696, 4698, 4225 & 4 226/DEL./2015 7 COPY OF WHICH ARE APPEARING AT PAGES 7 TO 13 OF THE PAPER BOOK AND ALSO POINTED OUT THAT DURING THE COURSE OF THE ASSESSMENT PROCEEDING S VARIOUS SUBMISSIONS WERE FILED WHICH HAVE NOT BEEN PROPERLY CONSIDERED. THE DETAIL OF REPLIES FILED ON VARIOUS CASES INCLUDING THAT OF ASSESSEE SENT THROUGH REGISTERED POST OR DAK HAS BEEN ILLUSTRATED AT PAGES 14 TO 16 OF THE PAPER HOOK. APART FROM THAT, HE SUBMITTED THAT IN THE FIRST APPEAL THE RELIEF HAS ALREADY BEEN GRANTED TO THE AS SESSEE AND INCOME HAS BEEN COMPUTED AT 'NIL' AND SUCH APPELLATE ORDERS HAVE AT TAINED FINALITY. THE COPY OF THE ASSESSMENT ORDERS GIVING EFFECT TO THE FIRST APPELL ATE ORDER COMPUTING THE INCOME AT 'NIL' INCOME RIGHT FROM ASSESSMENT YEARS 2002-03 TO 2008-09 HAS BEEN PLACED IN THE PAPER BOOK. THUS, HE SUBMITTED THAT NO PENALTY CAN BE LEVIED U/S 271(1)(B) UNDER THESE FACTS AND CIRCUMSTANCES OF THE CASE AS THERE WAS A REASONABLE CAUSE FOR DELAY IN FILING OF THE REPLIES. 8. ON THE OTHER HAND, THE LD, DR STR ONGLY RELIED UPON THE OBSERVATION AND FINDINGS OF THE LEARNED CIT(APPEALS). 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO PERU SED THE RELEVANT FINDING GIVEN IN THE IMPUGNED ORDER. HERE IN THIS CASE, FIR ST OF ALL, ON PERUSAL OF THE PENALTY NOTICE AS APPEARING AT PAGE NO. 6 OF THE PAPER BOOK, IT IS SEEN THAT NOWHERE THE ASSESSING OFFICER HAS MENTIONED ABOUT ANY PARTICULAR S OF STATUTORY NOTICE/S FOR WHICH THERE WAS ANY DEFAULT ON PART OF THE ASSESSEE. SHOW CAUSE NOTICES ISSUED FOR INITIATING PENALTY PROCEEDINGS SHOULD BE SPECIFIC AND WITHOUT A NY AMBIGUITY, BECAUSE THE ASSESSEE WHILE GIVING THE EXPLANATION SHOULD BE AWAR E OF THE CHARGE FOR WHICH PENALTY IS BEING INITIATED AND CAN GIVE HIS SPECIFIC REBUTTA L. SUCH VAGUE NOTICE IS FATAL TO THE INITIATION OF THE PROCEEDINGS ITSELF. FURTHER FROM THE PERUSAL OF THE ASSESSMENT ORDER, IT IS GATHERED THAT THE ASSESSEE DID NOT ATTEND THE PROCEEDINGS ON 20.11.2012 AND 30.11.2012. THE ASSESSING OFFICER FURTHER MENTI ONS THAT ON 5.12.2012, SHRI VISHAL MEHTA, AR ALONG WITH OTHER AUTHORIZED PERSO NS APPEARED BEFORE HIM AND SUBMITTED THAT NON -COMPLIANCE ON THE PART OF THE A SSESSEE ON THE SAID DATE WERE DUE TO THE FACT THAT GROUP HEAD, SHRI GOPAL KUMAR GOYAL WAS CURRENTLY NOT AVAILABLE AND THE WHOLE FAMILY MEMBERS AND THE GROUP HEADS WERE EN GAGED IN ONGOING COURT PROCEEDINGS TO GET EARLY RELEASE OF SHRI GOPAL KUMA R GOYAL WHO WAS IN JUDICIAL CUSTODY. THIS CONTENTION RAISED BY THE ASSESSEE BEFO RE THE LD. ASSESSING OFFICER, IN THE COURSE OF THE ASSESSMENT PROCEEDINGS HAVE NOT BEEN A CCEPTED AND HE PROCEEDED TO MAKE THE ASSESSMENT U/S 144 READ WITH SECTION 153A. HOWEVER ON PERUSAL OF VARIOUS REPLIES FILED BY THE ASSESSEE BEFORE THE ASSESSING O FFICER DURING THE ASSESSMENT PROCEEDINGS, IT IS SEEN THAT MOST OF THE COMPLIANCE S HAVE BEEN MADE THROUGH REPLIES/LETTERS SENT TO THE ASSESSING OFFICER EITHE R BY FILING IN THE DAK OR THROUGH REGISTERED/SPEED POST. THIS IS FURTHER CORROBORATED BY DETAILS OF REPLIES FILED IN VARIOUS GROUP CASES AS REFERRED TO BY LD. COUNSEL BEFORE US. OSTENSIBLY THERE MAY BE A CASE OF DELAY IN COMPLIANCE OR FILING OF REPLIES BEFORE AO A ND NOT PERSONALLY APPEARING BEFORE THE ASSESSING OFFICER ON A PARTICULAR DATE, BUT COMP LIANCES IN FORM OF REPLIES DO HAVE BEEN FILED IN THE COURSE OF ASSESSMENT PROCEEDINGS A ND ALL THE NECESSARY DETAILS REQUIRED FOR THE PURPOSE OF ASSESSMENT HAS BEEN PROV IDED. WHAT ARE REQUIRED TO BE SEEN WHILE LEVYING PENALTY FOR NON-COMPLIANCE OF ST ATUTORY NOTICES, IS THE FACTS AND CIRCUMSTANCES FOR NON-APPEARANCE ON THE SPECIFIED D ATE, THAT IS, WHETHER THERE WAS ANY REASONABLE CAUSE AND THE OVERALL CONDUCT OF THE ASSESSEE. THE MAIN PLANKS FOR ITA NOS. 4188 TO 4213, 4693 TO 4696, 4698, 4225 & 4 226/DEL./2015 8 REASONABLE CAUSE PLEADED BY THE ASSESSEE HAS BEEN TH AT, FIRSTLY, THE KEY PERSON/GROUP HEAD, SHRI GOPAL KUMAR GOYAL WHO WAS ENTRUSTED WITH INCOME TAX MATTERS AND WAS LOOKING AFTER THE ENTIRE WORKING OF THE GROUP WAS I N JUDICIAL CUSTODY IN SOME CRIMINAL PROCEEDINGS AND THE ENTIRE GROUP AND FAMILY MEMBERS WERE ENGAGED IN ONGOING COURT PROCEEDINGS FOR HIS EARLY RELEASE AND VARIOUS EMPLO YEES WERE LEAVING THE GROUP FURTHER ACCENTUATING THE PROBLEMS; SECONDLY, MORE T HAN 300 GROUP ASSESSMENTS WERE INITIATED IN THE WAKE OF SEARCH PROCEEDINGS WHICH W ERE SIMULTANEOUSLY GOING ON, THEREFORE, IT WAS DIFFICULT TO COMPLY TO THE VARIOU S NOTICES ON SHORT DATES; LASTLY, IT HAS BEEN STRONGLY PLEADED BEFORE US, THAT THE COMPLIANCE S HAD BEEN MADE THROUGH REPLIES FILED THROUGH DAK OR REGISTERED POST THOUGH BELATEDL Y. THESE FACTS HAVE NOT BEEN CONTROVERTED BY THE AO OR CIT (APPEALS). ALL THESE FACTS AND CIRCUMSTANCES UNDER ANY PRUDENCE DO CONSTITUTE REASONABLE CAUSE FALLING WITH IN THE SCOPE AND AMBIT OF SECTION 273B AND ACCORDINGLY, WE ARE OF THE CONSIDERED OPIN ION THAT FAILURE TO COMPLY WITH CERTAIN NOTICES ON A PARTICULAR DATE WAS DUE TO REA SONABLE CAUSE AS HIGHLIGHTED BY THE ASSESSEE NOT ONLY DURING THE COURSE OF THE ASSESSME NT PROCEEDINGS BUT ALSO BEFORE THE ASSESSING OFFICER AND LEARNED CIT(APPEALS) IN THE I MPUGNED PENALTY PROCEEDINGS AND HENCE PENALTY CANNOT BE LEVIED IN SUCH CIRCUMSTANCES . 10. APART FROM THAT, ONE IMPORTANT FACT BROUGHT ON R ECORD IS THAT, THE DEMAND IN THE QUANTUM PROCEEDINGS HAS BEEN REDUCED TO 'NIL', AFTER GIVING EFFECT TO THE FIRST APPELLATE ORDER AND THERE HAS BEEN NO SUBSTANTIVE NON-COMPLIA NCE EITHER DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS OR DURING THE APPELLATE PROCEEDINGS. IN SUCH CIRCUMSTANCES SUCH AN ALLEGED BREACH OR NON-COMPLIAN CE IS MERE TECHNICAL AND VENIAL IN NATURE AND THEREFORE, PENALTY SHOULD NOT BE LEVIE D FOR SUCH VENIAL BREACH. ACCORDINGLY, THE LEVY OF PENALTY OF RS. 20,000/- U/ S 271(1)(B) FOR ALL THE ASSESSMENT YEARS IS UNSUSTAINABLE FOR THE REASONS GIVEN ABOVE AND IS DIRECTED TO BE DELETED. THUS, GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. 8. RESPECTFULLY FOLLOWING THE DECISION OF CO-ORDINA TE BENCH IN THE AFORESAID CASE, AND KEEPING IN VIEW THE ATTENDING FACTS, CIRC UMSTANCES AND CONTENTIONS OF BOTH THE PARTIES IN THE PRESENT APPEAL, BEING IDENTICAL, WE ARE INCLINED TO CANCEL THE PENALTY IMPOSED AGAINST THE ASSESSEE U/S. 271(1)(B) OF THE ACT. ACCORDINGLY, THE APPEAL OF THE ASSESSEE DESERVES TO BE ALLOWED. 9. SINCE SIMILAR FACTS ARE PERMEATING THROUGH IN AL L THE REMAINING APPEALS OF VARIOUS ASSESSEES, AS NOTED ABOVE, OUR FINDINGS REA CHED IN ITA NO. 4610/DEL./2015 IN EARLIER PART OF THIS ORDER, SHALL APPLY MUTATIS MUTANDIS IN ALL OTHER APPEALS BEFORE US. ACCORDINGLY, ALL THE REMAINING APPEALS ALSO DES ERVE TO BE ALLOWED. SIMILAR VIEW HAS BEEN TAKEN BY THE ITAT, DELHI BENC HES IN FOLLOWING GROUP CASES OF THE ASSESSEE: (I) M/S. KING BUILDCON (P) LTD. (A.YRS. 2005-06 TO 2008 -09- ORDER DATED 13.11.2017) ITA NOS. 4188 TO 4213, 4693 TO 4696, 4698, 4225 & 4 226/DEL./2015 9 (II) M/S. KAIRAV NON-WOVEN (P) LTD.(A.YRS. 2006-07 TO 20 08-09 ORDER DATED 31.08.2017) (III) GOBIND KUMAR GOYAL (A.YRS. 2002-03 TO 2008-09 ORD ER DATED 30.08.2017) 4. THERE BEING NO CHANGE IN THE FACTS AND CIRCUMSTA NCES OF THE CASES, WE FIND NO REASON TO DEVIATE FROM THE DECISIONS REACHE D BY CO-ORDINATE BENCHES IN THE AFORESAID DECISIONS. W, THEREFORE, RESPECTFU LLY FOLLOWING THE ABOVE DECISIONS, FIND NO JUSTIFICATION TO SUSTAIN THE IMP UGNED PENALTIES IMPOSED IN THE INSTANT CASES. ACCORDINGLY, THE IMPUGNED ORDERS DESERVE TO BE SET ASIDE AND THE PENALTIES SUSTAINED IN THE INSTANT CASES DE SERVE TO BE DELETED. 5. IN THE RESULT, ALL THE ABOVE APPEALS OF THE ASSE SSEES ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND JANUARY, 2018 SD/- SD/- (BHAVNESH SAINI) (L.P. SA HU) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 22 ND JANUARY, 2018 *AKS* COPY OF ORDER FORWARDED TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES, NEW DELHI