AUDREY JOE COUTINHO, MUMBAI V. ITO 21(1)(1), MUMBAI

ITA 4196/MUM/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2263 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 10-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: A Y IMPOSING PENALTY US C
• Keywords: Opportunity of being heard; Period of limitation

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER ITA NO.4196 & 4197/MUM/2014 ASSESSMENT YEARS: 2009-10 AUDREY JOE COUTINHO, TRIBUNAL-40, P.A. GAWADE BUILDING, AZAD ROAD, JUHU KOLIWADA, JUHU, MUMBAI-400049 / VS. ITO-21(1)(1), MUMBAI ( !' # /ASSESSEE) ( $ / REVENUE) PAN. NO.AERPC3233L % $& ' # ( / DATE OF HEARING : 10/12/2015 ' # ( / DATE OF ORDER: 10/12/2015 / O R D E R PER BENCH BOTH THESE APPEALS ARE BY THE ASSESSEE FOR A.Y. 200 9-10 IMPOSING PENALTY U/S 271(1)(C) AND 271 (1)(B) OF TH E INCOME TAX ACT, 1961(HEREINAFTER THE ACT). $ ! / REVENUE BY SHRI MOHAMMED RIZWAN !' # ! / ASSESSEE BY SHRI MANDAR VAIDYA AUDREY JOE COUTINHO ITA NO.4196 & 4197/MUM/2014 2 2. FIRST, WE SHALL TAKE UP APPEAL OF THE ASSESSEE I N ITA NO.4197/MUM/2014, WHEREIN, THE LD. FIRST APPELLATE AUTHORITY DECLINED TO CONDONE THE DELAY OF 284 DAYS IN FILING THE APPEAL BEFORE HIM. THE LD. COUNSEL FOR THE ASSE SSEE, SHRI MANDAR VAIDYA, CONTENDED THAT THE TRIBUNAL VIDE ORD ER DATED 14/08/2015 (ITA NO.4195/MUM/2014), DIRECTED THE LD. FIRST APPELLATE AUTHORITY TO CONDONE THE DELAY AND TO ADJ UDICATE THE ISSUES ON MERIT AFTER ALLOWING A REASONABLE OPPORTU NITY OF BEING HEARD. HOWEVER, THE LD. DR, SHRI MOHAMMAD RI ZWAN CONTENDED THAT THERE WAS A DELIBERATE DELAY ON THE PART OF THE ASSESSEE IN NOT FILING THE APPEAL BEFORE THE LD. CO MMISSIONER OF INCOME TAX (APPEALS), THEREFORE, THE LD. COMMIS SIONER OF INCOME TAX (APPEALS) RIGHTLY CONFIRMED THE PENALTY. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. BEFORE C OMING TO ANY CONCLUSION, WE ARE REPRODUCING HEREUNDER THE RE LEVANT PORTION OF THE AFORESAID ORDER FOR READY REFERENCE: - FROM THE ABOVE, I FIND THERE IS SUFFICIENT REASON FOR NOT FILING THE APPEAL BEFORE THE LD. COMMISSIONER OF INCOME TAX (A PPEALS) WITHIN THE PRESCRIBED PERIOD OF LIMITATION AND WITH A DELAY OF 406 DAYS. WITH THE STRAINED RELATIONSHIP BETWEEN T HE ASSESSEE AND HER HUSBAND, WHO NORMALLY IS IN TOUCH WITH THE CAS, IT IS LIKELY HER HUSBAND DID NOT GIVE REQUISITE ATTENTION TO THE INCOME TAX APPEAL MATTERS OF HIS WIFE. THEREFORE, THERE I S A DELAY OF 406 DAYS IN FILING THE APPEALS BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). CONSIDERING THE SAME, I AM OF THE OPINI ON THE ORDER AUDREY JOE COUTINHO ITA NO.4196 & 4197/MUM/2014 3 OF THE COMMISSIONER OF INCOME TAX (APPEALS) IS REQU IRED TO BE RESERVED ON THE ISSUE OF CONDONATION OF DELAY. I O RDER ACCORDINGLY AND THE COMMISSIONER OF INCOME TAX (APP EALS) IS DIRECTED TO CONDONE THE DELAY AND TO ADJUDICATE THE ISSUES ON MERITS AFTER ALLOWING A REASONABLE OPPORTUNITY OF B EING HEARD TO THE ASSESSEE AS PER THE PRINCIPLES OF NATURAL JUSTI CE. THUS, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STAT ISTICAL PURPOSES. 2.2. WE FIND THAT, SO FAR AS, THE ISSUE OF CONDONA TION OF DELAY IS CONCERNED, THE TRIBUNAL HAS ALREADY DIRECT ED THE LD. FIRST APPELLATE AUTHORITY TO CONDONE THE DELAY. THE ISSUE BEFORE US, PERTAINS WITH RESPECT TO CONFIRMATION OF PENALTY. SINCE, THE ISSUE OF QUANTUM ADDITION HAS BEEN REMAN DED BACK TO THE FILE OF THE LD. COMMISSIONER OF INCOME TAX ( APPEALS) FOR ADJUDICATION OF MERIT, THEREFORE, IN ALL FAIRNESS, THE APPEAL ON PENALTY ALSO DESERVES TO BE SENT BACK TO THE FILE O F THE LD. COMMISSIONER OF INCOME TAX (APPEALS) AS THE SAME WI LL BE OFFSHOOT OF THE QUANTUM ADDITION, THEREFORE, THIS A PPEAL OF THE ASSESSEE IS REMANDED BACK TO THE FILE OF THE LD. CO MMISSIONER OF INCOME TAX (APPEALS) FOR ADJUDICATION ON MERIT. THE ASSESSEE BE GIVEN OPPORTUNITY OF BEING HEARD WITH F URTHER LIBERTY TO FURNISH EVIDENCE, IF ANY, IN SUPPORT OF HIS CLAIM. THIS APPEAL IS ALLOWED FOR STATISTICAL PURPOSES ONLY. 3. NOW, WE SHALL TAKE UP APPEAL OF THE ASSESSEE (IT A NO.4196/MUM/2014) IN WHICH THE PENALTY OF RS.10,000 /- WAS IMPOSED U/S 271(1)(B) OF THE ACT FOR NOT ATTENDING THE NOTICES AUDREY JOE COUTINHO ITA NO.4196 & 4197/MUM/2014 4 ISSUED TO THE ASSESSEE. THE LD. COUNSEL FOR THE AS SESSEE, CONTENDED THAT THIS ISSUE MAY ALSO BE SENT BACK TO THE FILE OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS). ON TH E OTHER HAND, THE LD. DR, CONTENDED THAT IN SPITE OF SUFFIC IENT OPPORTUNITIES TO THE ASSESSEE, THERE WAS A NON-COMP LIANCE OF THE NOTICES/SHOW CAUSE NOTICE, THEREFORE, THE PENAL TY WAS RIGHTLY IMPOSED/CONFIRMED. 3.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE DECLARED INCOME OF RS.1,89,71 0/- IN HIS RETURN FILED ON 31/07/2009. THE CASE OF THE ASSESSE E WAS SELECTED FOR SCRUTINY. ON 08/09/2011, THE ASSESSEE FILED A LETTER DATED 03/09/2011 ALONG WITH COPY OF RETURN, COMPUTATION OF INCOME, BALANCE SHEET, PROFIT & LOSS ACCOUNT AND THE MATTER WAS ADJOURNED TO 20/09/2011. HOWEVE R, AS PER THE REVENUE, NO DETAILS WERE FILED. SHOW-CAUSE NOTICE WAS SERVED UPON THE ASSESSEE TO WHICH, THERE WAS NO COM PLIANCE. IN THE ABSENCE OF A VALID EXPLANATION, PENALTY OF R S.10,000/- WAS IMPOSED U/S 271(1)(B) OF THE ACT. HOWEVER, THER E IS NO DISPUTE TO THE FACT THAT THE ASSESSEE ON 08/09/2011 FILED THE NECESSARY DETAILS, THEREFORE, BY TAKING A LENIENT V IEW, WE CONDONE THE DELAY AND DIRECT THE LD. COMMISSIONER O F INCOME TAX (APPEALS) TO DISPOSE OF THE PENALTY APPEAL ON M ERIT AND DECIDE AFRESH, THUS, THE PENALTY APPEAL IS ALSO SEN T TO THE FILE OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW. THE ASSESSEE B E GIVEN AUDREY JOE COUTINHO ITA NO.4196 & 4197/MUM/2014 5 OPPORTUNITY OF BEING HEARD. THUS, THIS APPEAL IS AL SO ALLOWED FOR STATISTICAL PURPOSES. FINALLY, BOTH THE APPEALS ARE ALLOWED FOR STATISTIC AL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF THE LD. REPRESENTATIVE FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 10/12/2015 SD/- SD/- ( SANJAY ARORA ) (JOGINDER SINGH) '!# / ACCOUNTANT MEMBER $!# /JUDICIAL MEMBER % & MUMBAI; * DATED : 10/12/2015 F{X~{T? P.S/. . . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ,-. / THE APPELLANT 2. /0-. / THE RESPONDENT. 3. 1 1 % 2# ( , ) / THE CIT, MUMBAI. 4. 1 1 % 2# / CIT(A)- , MUMBAI 5. 4$5 /# , 1 ,( 6 , % & / DR, ITAT, MUMBAI 6. ! 8& / GUARD FILE. ! / BY ORDER, 04,# /# //TRUE COPY// /! (DY./ASSTT. REGISTRAR) , % & / ITAT, MUMBAI AUDREY JOE COUTINHO ITA NO.4196 & 4197/MUM/2014 6