Extra Marketing Private Ltd., New Delhi V. ACIT, New Delhi

ITA 4240/DEL/2013

• Counselvise Citation: 424020114 RSA 2013
• Duration Of Justice: 1 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 03-06-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 11-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GAGAN SOOD
• Assessee Lawyers: B K DHINGRA
• Keywords: Non compliance
• Section: 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : B: NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI I. C. SUDHIR, JUDICIAL MEMBER ITA NO. 4240/DEL/2013 ASSESSMENT YEAR: 2009- 2010 M/S. EXTRA MARKETING PRIVATE LTD. VS. ACIT NOW KNOWN AS PVK MARKETING PVT. LTD. CENTRAL CIRCLE-21, RZF-7, VIJAY ENCLAVE, DWARKA PURI ROOM NO. 344 NEW DELHI 110 045 JHANDEWALAN EXTENSION (PAN AABCE7963J) NEW DELHI 110 055. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI B.K. DHIN GRA, CA RESPONDENT BY : SHRI GAGAN SOOD, DR ORDER PER I.C. SUDHIR, JUDICIAL MEMBER THE ASSESSEE HAS QUESTIONED FIRST APPELL ATE ORDER ON SEVERAL GROUNDS INVOLVING THE SOLE ISSUE AS TO WHETHER THE LD. CIT(A) WAS JUSTIFIED IN UPHOLDING THE PENALTY LEVIED BY THE AO U/S 271(1 )(B) OF THE ACT. 2. IN SUPPORT OF THE GROUNDS THE LD. AR SUBM ITTED THAT THE LD. CIT(A) WHILE UPHOLDING THE PENALTY LEVIED HAS FAILED TO AP PRECIATE THAT NOTICE ISSUED U/S 142(1) DATED 8.11.2010 OF THE ACT FOR TH E ASSTT. YEAR 2009-10 FIXING THE CASE FOR HEARING ON 18.11.2010 WAS NOT P ROPERLY SERVED ON THE ASSESSEE. HENCE THE AO WAS NOT JUSTIFIED FOR IMPOSI NG PENALTY OF RS. ITA NO. 4240/DEL/2010 2 10,000/- U/S 271 (1) (B) OF THE ACT FOR NOT ATTENDI NG THE OFFICE OF THE AO ON 18.11.2010 FOR THE ASSTT. YEAR 2009-10. HE SUBMITTE D THAT THE STATUTORY PROVISIONS OF SECTION 271(1)(B) OF THE ACT FOR LEVY OF PENALTY IS NOT FOR MERE TECHNICAL NON COMPLIANCE BUT FOR ACTUAL OR HABITUAL DEFAULTERS. IN SUPPORT OF THESE SUBMISSIONS THE ASSESSEE FILED COPIES OF SEVE RAL DOCUMENTS IN THE SHAPE OF PAPER BOOK FILED ON BEHALF OF THE ASSESSEE AND PLACED RELIANCE ON SEVERAL DECISIONS IN GROUP CASES WHEREIN THE TRIBUN AL HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE WITH THIS FINDING THAT IN THE ASSESSMENT ORDER THE AO HAS NOT MENTIONED THE DATE ON WHICH SUCH NOTICES ISSUED ON 8.11.2010 WAS SERVED UPON THE ASSESSEE. THESE CASES ARE IVAN INFOTECH PVT. LTD. VS. ACIT ITA NO. 4460/DEL/2013 ORDER DATED 23.1.2014; T ANVIR FINANCE AND LEASING PVT. LTD. VS. ACIT ITA NO. 4462/DEL/2013 OR DER BY 14.3.2014 ETC. 3. LD. DR ON THE OTHER HAND PLACED RELIANCE ON THE ORDERS OF THE AUTHORITIES BELOW WITH THIS SUBMISSION THAT DESPITE SEVERAL OPPORTUNITIES THE ASSESSEE DID NOT BOTHER TO APPEAR BEFORE THE AO IN RESPONSE TO THE NOTICES ISSUED BY THE AO TIME TO TIME. 4. ON PERUSAL OF THE ASSTT. ORDER FOR THE ASS TT. YEAR 2009-10 WE FIND THAT IN PARA NO. 2 OF THE ORDER THE AO HAS MENTIONE D ABOUT THE NOTICES ISSUED AND NON COMPLIANCE OF THE ASSESSEE THERETO. FOR A READY REFERENCE PARA NO.2 OF THE ASSTT. ORDER IS REPRODUCED HEREUND ER :- ITA NO. 4240/DEL/2010 3 NOTICES U/S 142(1)/143(2) DATED 8/11/20 10 ALONG WITH THE DETAILED QUESTIONNAIRE WERE ISSUED AND SERVED U PON THE ASSESSEE FIXING THE CASE FOR 30/11/2010. ON THIS DATE NEITHE R THE ASSESSEE ATTENDED THE PROCEEDINGS NOR FILED ANY APPLICATION FO R ADJOURNMENT. 5. IN THE ABOVE NOTINGS THE AO HAS TALKED AB OUT ISSUANCE OF NOTICES U/S 142 (1) / 143 (2) DATED 8.11.2010 BUT HE HAS NO T SPECIFICALLY MENTIONED AS TO ON WHICH DATE THE SAID NOTICES WERE SERVED UP ON THE ASSESSEE GIVING THE ASSESSEE SUFFICIENT TIME TO APPEAR BEFORE THE A O ON 30.11.2010. IN ABSENCE OF SPECIFYING THE DATE ON WHICH THE ASSESSE E WAS SERVED WITH THE NOTICES ISSUED ON 8.11.2010, THE AO IN OUR VIEW WAS NOT JUSTIFIED IN COMING TO THE CONCLUSION THAT THE ASSESSEE INTENTIONALLY D ID NOT APPEAR BEFORE HIM ON THE DATE FIXED OR FILE ANY APPLICATION FOR ADJOU RNMENT. THE LD. CIT(A) DID NOT AGREE WITH THIS SUBMISSION OF THE ASSESSEE THAT THE LD. AR OF THE ASSESSEE HAD ATTENDED THE OFFICE OF THE AO ON THE D ATE FIXED AND TRIED TO SEEK ADJOURNMENT FOR JANUARY, 2011 ON THE BASIS THA T IT HAS NOT BEEN SUBSTANTIATED. ANYWAY EVEN IN THE PENALTY ORDER AO HAS ONLY MENTIONED ABOUT THE ISSUANCE OF NOTICES ON 8.11.2010 BUT HE H AS NOT MENTIONED AS TO WHEN THE SAID NOTICES WERE SERVED UPON THE ASSESSEE . INSTEAD HE HAS NOTED THAT THE ASSESSEE DID NOT COMPLY WITH THE STATUTORY NOTICE ISSUED U/S 142(1) DATED 8.11.2010 AND ACCORDINGLY PENALTY PROCEEDINGS WERE INITIATED U/S 271(1)(B) OF THE ACT ON 31.12.2010 BY ISSUING NOTIC E UNDER THE SAID PENAL PROVISION READ WITH SECTION 274 OF THE ACT. HE HAS NOTED FURTHER THAT THE ASSESSEE DID NOT FILE ANY REPLY TO THE SAID NOTICE NOR ANY ONE ATTENDED THE SHOW CAUSE NOTICE DATED 6.6.2011 FIXING THE PROCEED INGS FOR 13.6.2011. WE ITA NO. 4240/DEL/2010 4 THUS FIND THAT AO DOES NOT TALK ABOUT AS TO WHEN TH E SAID NOTICES AND SHOW CAUSE NOTICE WERE SERVED UPON THE ASSESSEE TO ENSUR E THAT DESPITE HAVING BEEN SERVED WITH THE NOTICES THE ASSESSEE DID NOT B OTHER TO APPEAR BEFORE THE AO. WE THUS ARE OF THE VIEW THAT FAILURE OF TH E ASSESSEE TO COMPLY WITH SUCH NOTICES CANNOT BE SAID TO BE A DEFAULT TO JUST IFY THE LEVY OF PENALTY U/S 271(1)(B) OF THE ACT. THE SAME IS ACCORDINGLY CANCE LLED. THE ISSUE IS THUS DECIDED IN FAVOUR OF THE ASSESSEE. THE CONNECTED GR OUNDS ARE THUS ALLOWED. 6. CONSEQUENTLY APPEAL IS ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 7 TH AUGUST, 2014. SD/- SD/- (G.D. AGRAWAL) ( I.C. SUDHIR ) VICE PRESIDENT JUDICIAL MEMBER DATED 7 TH AUGUST, 2014 VEENA COPY OF ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR BY ORDER ASSTT. REGISTRAR, ITAT