Sh. Gobind Kumar Goyal, New Delhi V. DCIT, New Delhi

ITA 4315/DEL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4890 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 1 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2002-2003
• Appeal Filed On: 03-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHWETA NAKRA DUTTA
• Keywords: Search and seizure; Principle of natural justice; Reasonable cause; Non compliance
• Section: 273B; 153A; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : E , NEW DELHI BEFORE SH. BHAVNESH SAINI, JUDICIAL M EMBER AND SH. O.P. KANT , ACCOUNTANT MEMBER ITA NO S . 4315 TO 4321 /DE L/ 2015 ASSESSMENT YEAR S : 2002 - 03 TO 2008 - 09 SH. GOBIND KUMAR GOYAL, FLAT NO. 4 - R.R. APARTMENT, 3 - 4 MANGLAPURI, MEHRAULI, NEW DELHI VS. DCIT, CENTRAL CIRCLE - 14, NEW DELHI PAN : ALIPK0103F (APPELLANT) (RESPONDENT) APPELLANT BY SH. GAUTAM JAIN, ADV. RESPONDENT BY MS. SHWETA NAKRA DU TTA, SR.DR DATE OF HEARING 29.08.2017 DATE OF PRONOUNCEMENT 30.08.2017 ORDER PER O.P. KANT , A. M. : THESE APPEALS OF THE ASSESSEE ARE DIRECTED AGAINST COMMON IMPUGNED ORDER DATED 07/05/2015 PASSED BY THE LD. COMMISSIONER OF INCOME - TAX( APPEALS) - XXVI, NEW DELHI [ IN SHORT THE CIT - (A) ] IN RELATION TO PENALTY PROCEEDINGS UNDER SECTION 271(1)(B) OF THE I NC OME - TAX ACT, 1961 (IN SHORT THE ACT ) FOR ASSESSMENT YEAR 2002 - 03 TO ASSESSMENT YEAR 2008 - 09. 2. SINCE IN ALL THESE APPEALS COMMON ISSUE OF LEVY OF PENALTY OF RS 20,000/ - UNDER SECTION 271(1)(B) OF THE ACT ON ACCOUNT OF FAILURE TO COMPLY WITH TH E STATUTO RY NOTICES , ARISING OU T OF THE IDENTICAL SET OF FACTS IS INVOLVED, THEREFORE SAME WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY WAY OF THIS CONSOLIDATED ORDER. 2 3. THE FACTS AND GROUNDS OF APPEALS BEING IDENTICAL IN ALL THE YEARS INVOLVED , WE TAKE UP THE APPEAL OF THE ASSESSMENT YEAR 2002 - 03, HAVING ITA NO. 4315/DEL/2015 AS THE LEAD CASE. 4. THE G ROUNDS OF APPEAL RAISED BY THE ASSESSEE IN ASSESSMENT YEAR 2002 - 03 ARE AS UNDER: 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - XXVI, NEW DELHI HAS ERRED BOTH IN LAW AND ON FACTS IN UPHOLDING THE LEVY OF PENALTY OF RS. 20,000/ - U/S 271 (L)(B) OF THE ACT. 2. THAT WHILE UPHOLDING THE LEVY OF PENALTY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED TO APPRECIATE THAT ORDER LEVYING PENALT Y WAS BASED ON FINDINGS CONTRARY TO THE ORDER OF ASSESSMENT AND, OVERLOOKING THE REPLY FURNISHED BY THE APPELLANT DURING THE PENALTY PROCEEDINGS AND, THEREFORE UNTENABLE IN LAW. 2.1 THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ALSO FAILED TO APPRECIATE THAT THERE WAS REASONABLE CAUSE ON THE PART OF THE APPELLANT AND, AS SUCH PENALTY SUSTAINED IS ILLEGAL, INVALID AND UNTENABLE. 2.2 THAT ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS OTHERWISE ALSO BASED ON FACTUAL MISAPPRECIATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND, COMPLETE MISINTERPRETATION OF THE PROVISIONS CONTAINED IN SECTION 271(L)(B) OF THE ACT. 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS OTHERWISE TOO CONFIRMED THE PENALTY WITHOUT PROVIDING FAI R, REASONABLE AND MEANINGFUL OPPORTUNITY AND AS SUCH ORDER PASSED IS CONTRARY TO THE PRINCIPLES OF NATURAL JUSTICE AND, THEREFORE A NULLITY. IT IS THEREFORE PRAYED THAT THE PENALTY - LEVIED U/S 271(L)(B) OF THE ACT OF RS. 20,000/ - AND UPHELD BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) BE DELETED AND, APPEAL OF THE APPELLANT BE ALLOWED. 5. T HE FACTS IN BRIEF OF THE CASE ARE THAT, THE ASSESSEE IS AN INDIVIDUAL AND WORKING AS DIRECTOR IN MANY COMPANIES OF THE MDLR GROUP. A SEARCH AND SEIZURE ACTION UNDER SECTION 132(1) OF THE ACT WAS CARRIED OUT 3 AT THE PREMISES OF THE ASSESSEE ON 31/01/2008. PURSUANT TO SEARCH ACTION, PROCEEDINGS UNDER SECTION 153A OF THE ACT WERE INITIATED AND COMPLETED. CONSEQUENT TO ORDER UNDER SECTION 264 OF THE ACT PASSED BY TH E COMMISSIONER OF INCOME - TAX, SETTING ASIDE THE ORIGINAL ASSESSMENT, THE ASSESSING OFFICER COMPLETED THE ASSESSMENT UNDER SECTION 144 OF THE ACT ON 18/03/2013 DETERMINING TOTAL INCOME AT RS.5,00, 000/ - . DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESS EE FAILED TO COMPLY WITH THE STATUTORY NOTICES ISSUED FOR ATTENDING THE PROCEEDING AND FILE SUBMISSIONS PARTICULARLY ON 30/11/2012 AND 31/12/2012. IN VIEW OF THE NON - COMPLIANCE , THE ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS AND ISSUED SHOW CAUSE NOTI CE ON 21/03/2013. IN RESPONSE, THE ASSESSEE SUBMITTED REPLY ON 22/07/2013 THAT NON - COMPLIANCE WAS FOR THE REASONS BEYOND CONTROL OR OTHERWISE ARISING OUT OF CIRCUMSTANTIAL REASONS AND THERE WAS NO MALAFIDE INTENTION ON THE PART OF THE ASSESSEE. THE ASSESSI NG OFFICER REJECTED THE SUBMISSION OF THE ASSESSEE AND LEVIED PENALTY OF RS. 20,000/ - FOR NON - COMPLIANCE ON TWO OCCASIONS (RS. 10,000 / - FOR EACH DEFAULT). BEFORE THE LD. CIT - (A) , THE ASSESSEE RAISED MAIN CONTENTION THAT THERE WAS A REASONABLE CAUSE FOR NON - COMPLIANCE OF THE STATUTORY NOTICES AND , THUS, PENALTY SHOULD NOT BE LEVIED. THE LEARNED CIT - (A) UPHELD THE LEVY OF PENALTY WITH FOLLOWING OBSERVATIONS: 8.1. THE REPLY OF THE APPELLANT TO THE SHOW - CAUSE NOTICE, FILED BEFORE THE AO, IS PERUSED. THE APPELLANT CLAIMED THAT IN SPITE OF EXTREME ADVERSE CIRCUMSTANCES THERE WAS FULL CO - OPERATION, AND THAT NON COMPLIANCE (IF ANY) WAS FOR REASON BEYOND CONTROL OR OTH ERWISE ARISING OUT OF CIRCUMSTANTIAL REASONS . THE DEFAULT WAS CLAIMED TO BE 'UNINTENTIONAL AND FOR REASONABLE CAUSE , WHICH WAS CITED TO BE . THE VOLUME ARISING OUT OF 303 GROUP ASSESSMENTS THAT WERE REQUIRED TO BE CONCLUDED WITHIN SHORT SPAN ON 5 MONT HS . IT WAS SUBMITTED THAT THE APPELLANT WAS A PART OF THE MDLR GROUP COMPRISING OF SEVERAL ENTITIES, IN RESPECT OF WHICH SEARCH OPERATIONS WERE MOUNTED BY THE DEPARTMENT ON 31/1/2008; THAT FOLLOWING REVISION PETITION U/S 264, AS MANY AS 246 ASSESSMENTS RE LATING TO AY 02 - 03 TO 08 - 09 WERE PENDING ASSESSMENT; THAT IN ADDITION 57 ASSESSMENTS RELATING TO AY 10 - 11 WERE ALSO PENDING; THAT IN ALL 303 4 NUMBER OF ASSESSMENTS WERE GETTING BARRED BY LIMITATION ON 31/3/2013; THAT VOLUMINOUS DETAILS WERE REQUIRED BY THE AO; THAT THE GROUP WAS BURDENED WITH A NUMBER OF QUESTIONNAIRES; AND THAT THE GROUP WAS DRIVEN TO TAKE LEGAL REMEDIES. NON COMPLIANCE WAS ALSO ATTRIBUTED TO 'CIRCUMSTANTIAL FACTORS , NAMELY, THE NON - AVAILABILITY OF THE MAIN CONTROLLING PERSON , SH. GOP AL GOYAL DUE TO LEGAL DETENTION, NON - ACCESSIBILITY OF RECORDS DUE TO JUDICIAL INQUIRY/INVESTIGATION AND POOR EMPLOYEES TURNOVER RATIO . IT WAS CLAIMED THAT SINCERE EFFORTS WERE MADE BY THE APPELLANT, BUT INFORMATION COULD NOT BE PLACED ON RECORD DUE TO E XISTING CIRCUMSTANCES AND SHEER VOLUME . IT WAS CLAIMED: 'IT MAY ALSO BE APPRECIATED THAT ON ACCOUNT OF SUCH TWIN UNFORTUNATE INCIDENTS, IE FIRSTLY THE SEARCH ON SOME OF THE GROUP ASSESSES AND SECONDLY LEGAL DETENTION OF MAIN GROUP CONTROLLING PERSON, I. E, MR GOPAL GOYAL HAS PUT THE GROUP IN TOTAL UNSTABLE POSITION LEFT THE EMPLOYMENT SINCE THEN . IT WAS ASSERTED THAT INFORMATION COULD NOT BE PLACED ON RECORD WITHIN THE DUE DATE, WITHOUT ANY MALAFIDE INTENTIONS BUT ON ACCOUNT OF CIRCUMSTANCES BEYOND CONT ROL . THEREAFTER, THE APPELLANT CLAIMED THAT WITHOUT PREJUDICE , THE AR OF THE APPELLANT HAD DULY REPRESENTED BEFORE THE AO ON THE SAID DATES AND HENCE THERE WAS NO CASE OF NON - COMPLIANCE. IT WAS CLAIMED THAT WHERE THE COUNSEL COULD NOT ATTEND, 'IT WAS ENSURED THAT A DATE HAS BEEN OBTAINED OR COORDINATED WITH THE AUTHORITIES OVER TELEPHONE TO EXPLAIN THE REASONS FOR SUCH NON - ATTENDANCE . FINALLY, IT WAS SUBMITTED THAT THE NON COMPLIANCE WAS UNINTENTIONAL , FOR REASON BEYOND CONTROL , AND THAT TAKING I T AS A SPECIAL CASE , THE PENALTY PROCEEDINGS MAY BE DROPPED. 8.2. IT IS NOTED THAT CONTRADICTORY ASSERTIONS HAVE BEEN MADE IN THE WRITTEN SUBMISSION THAT WEAKENS THE CASE OF THE APPELLANT. ON THE ONE HAND, THE 'REASONS' FOR NON - COMPLIANCE HAVE BEEN CITE D, AND ON THE OTHER HAND, IT IS ASSERTED THAT THE APPELLANT APPEARED BEFORE THE AO ON THE TWO DATES IN RESPECT OF WHICH PENALTY HAS BEEN IMPOSED BY THE AO. BUT IT IS A MATTER OF RECORD THAT THERE WAS NO COMPLIANCE TO THE STATUTORY NOTICES FIXING THE CASE F OR HEARING ON 30.11.2012 AND 31.12.2012. 8.3. NONE OF THE REASONS GIVEN IN THE WRITTEN SUBMISSION, NAMELY, SEARCH OPERATIONS ON THE MDLR GROUP IN JANUARY 2008, DETENTION OF SH . GOPAL GOYAL, POOR TURN - OUT OF EMPLOYEES AT WORK PLACE, LARGE NUMBER OF PENDENC Y 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 ADJOURNMENT. SEARCH HAD TAKEN PLACE IN JANUARY 5 2008, FOLL OWING WHICH 153A PROCEEDINGS WERE INEVITABLE. THE REVISION PETITIONS U/S 264 WERE MOVED BY THE APPELLANT 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 REQUISI TE DETAILS WERE NOT BEING FILED. IN CONSIDERING THE MATTER OF PENALTY U/S 271(L)(B), THAT RELATES TO NON - COMPLIANCE TO A STATUTORY NOTICE, ISSUED IN THE CASE OF A SPECIFIC ASSESSEE FOR A PARTICULAR AY REQUIRING ATTENDANCE ON THE STATED DATE, 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, WHO 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 THEREAFTER PASS THE ASSESSMENT ORDER BEFORE THE TIME BARRING DATE. THUS, THE REASONS CITED IN THE WRITTEN SUBMISSION ARE REJECTED. 8.4 FILIN G OF SEVERAL WRIT PETITIONS BEFORE THE HON BLE HIGH COURT, WHICH IN TURN REQUIRED SUBSTANTIAL PAPERWORK, 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 / AR BEFORE THE AO ON 30.11.2012 AND 31.12.2012. 8.5 AS PER SECTION 271(L)(B) READ WITH SECTION 273B, THE PENALTY U/S 271(L)(B) IS VISITED UPON THE TAXPAYER WHO HAS FAILED TO COMPLY WITH THE NOTICES MENTIONED THEREIN, FOR EACH DEFAULT UNLESS REASONABLE CAUSE FOR SUCH FAILURE IS PROVEN. IN THE CASE AT HAND, THE APPELLANT HAS MADE ASSERTIONS AND CLAIMS THAT ARE NOT VALID FOR NON COMPLIANCE TO STATUTORY NOTICES. NO COMPELLING AND REASONABLE CAUSE FOR FAILURE TO COMPLY WITH THE STATUTORY NOTICES HAS BEEN ADV ANCED. 8.6. WHILE EXAMINING THE MATTER OF PENALTY U/S 271(L)(B) READ WITH SECTION 274, THE ONLY ASPECT THAT HAS TO BE EXAMINED IS WHETHER THERE WAS ANY REASONABLE CAUSE THAT PREVENTED THE APPELLANT FROM COMPLYING WITH THE STATUTORY NOTICES ISSUED BY THE A O. HERE, THE APPELLANT DID NOT COMPLY APPELLANT COULD HAVE ESCAPED FROM THE RIGOURS OF PENALTY, HAD THE STATUTORY NOTICE BEEN ACKNOWLEDGED AND ADJOURNMENT REQUESTED TIMELY. HOWEVER, THE APPELLANT CHOSE TO 6 COMPLETELY IGNORE THE STATUTORY NOTICES, AND THEREF ORE IN THE ABSENCE OF A REASONABLE CAUSE, BECAME LIABLE FOR PENALTY U/S 271(L)(B). 8.7. IT IS NOTED THAT DURING THE APPELLATE PROCEEDINGS ALSO, THE APPELLANT HAS IGNORED THE NOTICE REQUIRING ATTENDANCE FOR HEARING ON 28.04.20155. SINCE NO PROPER EXPLANATI ON FOR NON - COMPLIANCE TO THE AFOREMENTIONED NOTICES HAS BEEN FILED, EITHER BEFORE THE AO OR DURING THE APPELLATE PROCEEDINGS, THERE IS NO BASIS TO ALTER THE FINDING OF THE AO. SINCE THE AO GAVE ADEQUATE OPPORTUNITY TO THE APPELLANT AND IMPOSED PENALTY AS PER THE PROVISIONS OF LAW, AFTER DUE APPLICATION OF MIND, GROUND 3 OF THE APPEAL IS DISMISSED AND THE PENALTY ORDER IS CONFIRMED. 6. BEFORE US , THE LEARNED COUNSEL SUBMITTED THAT DETAILED REPLY JUSTIFYING THE NON - COMPLIANCE WAS FILED BEFORE THE LOWER AUTHORITIES. THE LEARNED COUNSEL SUBMITTED THAT MAIN REASONS OF NON - COMPLIANCE OF STATUTORY NOTICES OR NON - S UBMISSION OF REPLIES ON TIME WAS PRIMARILY DUE TO DETENTION OF THE KEY PERSON OF THE GROUP IN LEGAL CUSTODY AND LIMITED TIME AVAILABLE FOR PREPARING VOLUMINOUS SUBMISSIONS ASKED BY THE ASSESSING OFFICER IN 303 ASSESSMENTS OF THE GROUP. HE FURTHER SUBMITTED THAT IN ANOTHER GROUP CASE OF JAWALA PRASAD AGGARWAL IN ITA NOS. 4392 TO 4398/D EL/2015, I N SIMILAR SET OF CIRCUMSTANCES , THE TRIBUNAL HAS DELETED THE PENAL TY LEVIED UNDER SECTION 271(1)(B ) OF THE ACT. ACCORDINGLY , HE PRAYED THAT PENALTY IN THE CASE OF THE ASSESSEE, MIGHT ALSO BE DELETED. 7. ON THE OTHER HAND, LD. SR. DR OPPOSED DELETION OF PENALTY AND SUBMITTED THERE WAS NO REASONABLE CAUSE FOR NON - COMPLIANCE ON THE PART OF THE ASSESSEE. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. WE FIND THAT IN THE CASE OF JAWALA PRASH AD AGGARWAL, WHICH IS ALSO ONE OF T HE CASE S OF THE MDLR GROUP , THE TRIBUNAL HAS DELETED THE PENALTY U/S 271(1)(B) OF THE ACT . IN THE SAID CASE ALSO DUE TO NON - COMPLIANCE OF STATUTORY NOTICES ON TWO OCCASIONS PENALTY OF RS. 20,000/ - UNDER SECTION 271(1)(B) ACT WAS LEVIED BY THE ASSESSING OFFICER 7 IN EACH OF THE ASSESSMENT YEAR S FROM 2002 - 03 TO ASSESSMENT YEAR 2008 - 09. IN THE SAID CASE ALSO THE ASSESSEE SUBMITTED REASONS OF NON - COMPLIANCE AS MORE THAN 303 GROUP ASSESSMENTS CONDUCTED DURING SHORT SPAN OF FIVE MONTHS AND THEREFORE IT WAS DIFFICULT TO COMPLY WITH ALL THE NOTICES ON THE AP POINTED DATES. ALSO IT WAS SUBMITTED THAT MAIN CONTROLLING PERSON OF THE GROUP, SH. GOPAL GOYAL WAS DETAINED IN JUDICIAL CUSTODY SINCE AUGUST , 2012 AND HE WAS ENTRUSTED WITH ALL THE DECISIONS AND WAS AWARE OF THE TAX MATTER AND DOCUMENTS AND THEREFORE THER E WAS A DELAY IN COLLECTING INFORMATION AND CONSEQUENTLY MAKING COMPLIANCES. IN THE SAID CASE, THE TRIBUNAL DELETED THE PENALTY MAINLY ON THE GROUND THAT FACTS AND CIRCUMSTANCES OF THE CASE CON STITUTED REASONABLE CAUSE BEING UNDER THE SCOPE AND AMBIT OF SE CTIONS 273B OF THE ACT. THE TRIBUNAL ALSO HELD THAT THAT IN VIEW OF THE DEMAND IN QUANTUM PROCEEDING REDUCED TO NIL , THE ALLEGED BREACH OR NON - COMPLIANCE IS MERELY TECHNICAL AND VENIAL IN NATURE AND THEREFORE PENALTY SHOULD NOT BE LEVIED FOR SUCH VENIAL BR EACH. THE RELEVANT FINDING OF THE TRIBUNAL IS REPRODUCED AS UNDER: 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO PERUSED THE RELEVANT FINDING GIVEN IN THE IMPUGNED ORDER. HERE IN THIS CASE, FIRST 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 PARTICULARS OF STATUTORY NOTICE/S FOR WHICH THERE WAS ANY DEFAULT ON PART OF THE ASSESSEE. SHOW CAUSE NOTICES ISSUED FOR INITIATING PENALTY PROCEEDINGS SHOU LD BE SPECIFIC AND WITHOUT ANY AMBIGUITY, BECAUSE THE ASSESSEE WHILE GIVING THE EXPLANATION SHOULD BE AWARE OF THE CHARGE FOR WHICH PENALTY IS BEING INITIATED AND CAN GIVE HIS SPECIFIC REBUTTAL. SUCH VAGUE NOTICE IS FATAL TO THE INITIATION OF THE PROCEEDIN GS 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 MENTIONS THAT ON 5.12.2012, SHRI VISHAL MEHTA, AR ALONG WITH OTHER AUTH ORIZED PERSONS APPEARED BEFORE HIM AND SUBMITTED THAT NON - COMPLIANCE ON THE PART OF THE ASSESSEE 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 ENGAGED IN ONGOING COURT PROCEEDINGS TO GET EARLY 8 RELEASE OF SHRI GOPAL KUMAR GOYAL WHO WAS IN JUDICIAL CUSTODY. THIS CONTENTION RAISED BY THE ASSESSEE BEFORE THE LD. ASSESSING OFFICER, IN THE COURSE OF THE ASSESSMENT PROCEEDINGS HAVE NOT BEEN ACCEPTED AN D 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 OFFICER DURING THE ASSESSMENT PROCEEDINGS, IT IS SEEN THAT MOST OF THE COMPLIANCES HAVE BEEN MADE THROUGH REPLIES/LETTERS SENT TO THE ASSESSING OFFICER EITHER 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 AND NOT PERSONALLY APPEARING BEFORE THE ASSESSING OFFICER ON A PARTICULAR DATE, BUT COMPLIANCES IN FORM OF REPLIES DO HAVE BEEN FILED IN THE COURSE OF ASSESSMENT PROCEEDINGS AND ALL THE NECESSARY D ETAILS REQUIRED FOR THE PURPOSE OF ASSESSMENT HAS BEEN PROVIDED. WHAT ARE REQUIRED TO BE SEEN WHILE LEVYING PENALTY FOR NON - COMPLIANCE OF STATUTORY NOTICES, IS THE FACTS AND CIRCUMSTANCES FOR NON - APPEARANCE ON THE SPECIFIED DATE, THAT IS, WHETHER THERE WAS ANY REASONABLE CAUSE AND THE OVERALL CONDUCT OF THE ASSESSEE. THE MAIN PLANKS FOR REASONABLE CAUSE PLEADED BY THE ASSESSEE HAS BEEN THAT, 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 IN 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 EMPLOYEES WERE LEAVING THE GROUP FURTHER ACCENTUA TING THE PROBLEMS; SECONDLY, MORE THAN 300 GROUP ASSESSMENTS WERE INITIATED IN THE WAKE OF SEARCH PROCEEDINGS WHICH WERE SIMULTANEOUSLY GOING ON, THEREFORE, IT WAS DIFFICULT TO COMPLY TO THE VARIOUS NOTICES ON SHORT DATES; LASTLY, IT HAS BEEN STRONGLY PLEA DED BEFORE US, THAT THE COMPLIANCES HAD BEEN MADE THROUGH REPLIES FILED THROUGH DAK OR REGISTERED POST THOUGH BELATEDLY. THESE FACTS HAVE NOT BEEN CONTROVERTED BY THE AO OR CTT (APPEALS). ALL THESE FACTS AND CIRCUMSTANCES UNDER ANY PRUDENCE DO CONSTITUTE R EASONABLE CAUSE FALLING WITHIN THE SCOPE AND AMBIT OF SECTION 273B AND ACCORDINGLY, WE ARE OF THE CONSIDERED OPINION THAT FAILURE TO COMPLY WITH CERTAIN NOTICES ON A PARTICULAR DATE WAS DUE TO REASONABLE CAUSE AS HIGHLIGHTED BY THE ASSESSEE NOT ONLY DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS BUT ALSO BEFORE THE ASSESSING OFFICER AND LEARNED CIT(APPEALS) IN THE IMPUGNED PENALTY PROCEEDINGS AND HENCE PENALTY CANNOT BE LEVIED IN SUCH CIRCUMSTANCES . 9 10. APART FROM THAT, ONE IMPORTANT FACT BROUGHT ON REC ORD 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 - COMPLIANCE EITHER DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS OR DURING THE APPELLATE P ROCEEDINGS. IN SUCH CIRCUMSTANCES SUCH AN ALLEGED BREACH OR NON - COMPLIANCE IS MERE TECHNICAL AND VENIAL IN NATURE AND THEREFORE, PENALTY SHOULD NOT BE LEVIED FOR SUCH VENIAL BREACH. ACCORDINGLY, THE LEVY OF PENALTY OF RS. 20,000/ - U/S 271(L)(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. 9. IN THE INSTANT CASE ALSO THE FACTS AND CIRCUMSTANCES ARE IDENTICAL AND THUS, RESPECTFULLY FOLLOWING THE FINDING OF THE TRIBUNAL (SUPRA), LEVY OF PENALTY OF RS.20,000/ - UNDER SECTION 271(1)(B) OF THE ACT IS DIRECTED TO BE DELETED. 10. SINCE FACTS AND CIRCUMSTANCES IN APPEAL NO. 4316/DEL/2015 TO APPEAL NO. 4321/DEL/2015 FOR ASSESSMENT YEAR 2003 - 04 TO 2008 - 0 9 RESPECTIVELY , ARE IDENTICAL TO THE FACTS AND CIRCUMSTANCES IN ASSESSMENT YEAR 2002 - 03, THUS, FOLLOWING OUR FINDING IN ITA NO. 4315/DEL/2015, WE DIRECT THE ASSESSING OFFICER TO DELETE THE PENALTY OF RS . 20,000 UNDER SECTION 271(1)(B) OF THE ACT IN ALL THE SE APPEALS. 11. IN THE RESULT , ALL THE SEVEN APPEALS OF THE ASSESSEE ARE ALLOWED. THE DECISION IS PRONOUN CED IN THE OPEN COURT ON 3 0 T H AUGUST , 201 7 . S D / - S D / - ( BHAVNESH SAINI ) ( O.P. KANT ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 3 0 T H AUGUST , 201 7 . RK / - (D.T.D) COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5 . DR ASST. REGISTRAR, ITAT, NEW DELHI