Bluebell Infrastructure (P) Ltd., New Delhi V. ACIT, New Delhi

ITA 4379/DEL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74012 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 18-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y KAKKAR
• Keywords: Search and seizure; Reasonable cause
• Section: 143(3); 142(1); 153A

Judgement Text

ITA NO. 4378 TO 4382/DEL/2013 & ITA 4383 TO 4386/D/2013 ASSTT.YEARS: 2006-07 TO 2010-11 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `A NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER I.T.A.NO.4378/DEL/2013 ASSESSMENT YEAR : 2006-07 I.T.A.NO.4379/DEL/2013 ASSESSMENT YEAR : 2007-08 I.T.A.NO.4380/DEL/2013 ASSESSMENT YEAR : 2008-09 I.T.A.NO.4381/DEL/2013 ASSESSMENT YEAR : 2009-10 I.T.A.NO.4382/DEL/2013 ASSESSMENT YEAR : 2010-11 M/S BLUEBELL INFRASTRUCTURE (P) LTD., VS ASSTT .COMMISSIONER OF INCOME TAX, BA-17A,DDA FLATS, CENTRAL CIRCLE3, NEW DELHI. ASHOK VIHAR, PHASE-I, NEW DELHI. (PAN: AACCB8085B) I.T.A. NO.4383/DEL/2013 ASSESSMENT YEAR : 2007-08 I.T.A.NO.4384/DEL/2013 ASSESSMENT YEAR : 2008-09 I.T.A.NO.4385/DEL/2013 ASSESSMENT YEAR : 2009-10 I.T.A.NO.4386/DEL/2013 ASSESSMENT YEAR : 2010-11 M/S AMAN BUILDWELL (P) LTD., VS ASSTT .COMMISSIONER OF INCOME TAX, BA-17A,DDA FLATS, CENTRAL CIRCLE3, NEW DELHI. ASHOK VIHAR, PHASE-I, NEW DELHI. (PAN: AAGCA1024M) (APPELLANT) (RESPONDEN T) APPELLANT BY: SHRI SURESH GUPTA RESPONDENT BY : MS Y. KAKKAR, SR. DR ITA NO. 4378 TO 4382/DEL/2013 & ITA 4383 TO 4386/D/2013 ASSTT.YEARS: 2006-07 TO 2010-11 2 O R D E R PER BENCH THESE APPEALS HAVE BEEN PREFERRED BY THE ASSE SSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX(A)-II, NEW DELHI ALL DAT ED 4.3.2013, SEPARATELY PASSED IN ABOVE CAPTIONED APPEALS U/ 271(1)(B) OF T HE INCOME TAX ACT, 1961. SINCE SOLE ISSUE INVOLVED IN THESE APPEAL IS RELATE D TO THE ISSUE OF LEVY OF PENALTY U/S 271(1)(B) OF THE ACT, THEREFORE, WE HAV E CLUBBED THESE APPEALS TOGETHER AND FOR THE SAKE OF CONVENIENCE TO AVOID R EPETITION, THESE ARE BEING DISPOSED OF BY THIS SINGLE CONSOLIDATED ORDER. 2. SOLE GROUND RAISED BY THE RESPECTIVE APPELLANT S IN THESE APPEALS READ AS UNDER:- 1. THE LD. COMMISSIONER OF INCOME TAX(A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE HAS ERRED IN CONFIRMING THE LEVY OF PENALTY OF RS. 10,000/- U/S 271(1)(B) OF THE ACT. 3. BRIEFLY STATED THE FACTS GIVING RISE TO THESE AP PEALS ARE THAT SEARCH AND SEIZURE OPERATION WAS CONDUCTED IN MAHESH MEHTA GRO UP OF CASES ON 30.06.2009. AS PER SEARCH WARRANT AND PANCHNAMA, T HE ASSESSEES COMPANIES WERE ALSO COVERED U/S 132/130A OF THE ACT . DURING THE ASSESSMENT PROCEEDINGS, VARIOUS NOTICES U/ 143(2) A ND 142(1) ALONG WITH QUESTIONNAIRE WERE ISSUED TO THE ASSESSEE. THE ASS ESSING OFFICER OBSERVED ITA NO. 4378 TO 4382/DEL/2013 & ITA 4383 TO 4386/D/2013 ASSTT.YEARS: 2006-07 TO 2010-11 3 THAT ON 18.07.2011 NEITHER THE ASSESSEE NOR HIS AUT HORIZED REPRESENTATIVE ATTENDED THE PROCEEDINGS AND NOR ANY WRITTEN SUBMIS SIONS OR APPLICATION FOR ADJOURNMENT WERE FILED IN THE RESPECTIVE CASES. AD MITTEDLY, ASSESSMENTS WERE COMPLETED U/ 143(3) R/W SECTION 153A OF THE AC T IN ALL THESE CASES. SUBSEQUENTLY, THE ASSESSING OFFICER ISSUED A NOTICE U/ 271(1)(B) OF THE ACT ASKING THE ASSESSEE TO SHOW CAUSE THAT WHY PENALTY U/S 271(1)(B) OF THE ACT SHOULD NOT BE IMPOSED FOR NON-COMPLIANCE OF THE NOT ICE. DURING THE PENALTY PROCEEDINGS, ON THE DATE FIXED FOR HEARING I.E. 20. 9.2011, NOBODY ATTENDED NOR ANY WRITTEN SUBMISSION OR ANY ADJOURNMENT APPLI CATION HAD BEEN FILED TO EXPLAIN THE FAILURE TO ATTEND ASSESSMENT PROCEEDING S ON 18.07.2011. THE ASSESSING OFFICER IMPOSED A PENALTY OF RS.10,000 IN EACH CASE. 4. THE AGGRIEVED ASSESSEE PREFERRED SEPARATE APPEAL S BEFORE THE COMMISSIONER OF INCOME TAX(A) WHICH WERE ALSO DISMI SSED BY CONFIRMING THE PENALTY ORDER. NOW, THE ASSESSEES ARE IN THIS SECOND APPEAL BEFORE THIS TRIBUNAL WITH THE SOLE GROUND AS REPRODUCED HEREINA BOVE. 5. WE HAVE HEARD RIVAL ARGUMENTS OF BOTH THE PARTIE S AND CAREFULLY PERUSED THE RECORD, INTER ALIA ASSESSMENT ORDER, PE NALTY ORDER AND IMPUGNED ORDERS. THE LD. AUTHORIZED REPRESENTATIVE OF THE A SSESSEE (AR) SUBMITTED THAT AS PER PARA 3 OF THE ASSESSMENT ORDER, SHRI DINESH JAIN AND AR ATTENDED THE PROCEEDINGS IN THESE CASES AND THE ASSESSING OFFICE R HAS NOT RECORDED ANY ITA NO. 4378 TO 4382/DEL/2013 & ITA 4383 TO 4386/D/2013 ASSTT.YEARS: 2006-07 TO 2010-11 4 FINDING IN THIS REGARD THAT THE ASSESSEE DID NOT CO MPLY WITH THE NOTICES ISSUED DURING THE ASSESSMENT PROCEEDINGS. THE AR FURTHER CONTENDED THAT THE NOTICES INITIATING THE ASSESSMENT PROCEEDINGS IN CO NSEQUENCE OF THE SEARCH ACTION STARTED AFTER ONE YEAR AND NINE MONTHS LEAVI NG LESS THAN 6 MONTHS FOR COMPLETION OF SEARCH ASSESSMENT INVOLVING MORE THAN 70 CASES TO COMPLETE. THE AR FURTHER CONTENDED THAT THE ASSESSEE AND HIS AUTHORIZED REPRESENTATIVE ATTENDED ENTIRE ASSESSMENT PROCEEDINGS EXCEPT ONE D ATE OF HEARING AND SINGLE INSTANCE OF NON-COMPLIANCE AND THE ASSESSMENT U/S 1 43(3) R/W SECTION 153A OF THE ACT WAS COMPLETED IN THE LAST TWO WEEKS OF D ECEMBER I.E. 27.12.2011 ON THE RETURNED INCOME AND NO ADDITION FOR DISALLOW ANCE WAS MADE BY THE ASSESSING OFFICER. THE LEARNED AR VEHEMENTLY CONTE NDED THAT THE PENALTY U/S 271(1)(B) OF THE ACT COULD NOT BE IMPOSED IN TH ESE CASES BECAUSE EXCEPT A SINGLE INSTANCE, ENTIRE PROCEEDINGS WERE ATTENDED BY THE ASSESSEE AND HIS REPRESENTATIVE. THE AR FURTHER CONTENDED THAT THE SINGLE INSTANCE OF ABSENCE COULD NOT BE HELD AS NON-COMPLIANCE BECAUSE SHRI DI NESH JAIN, CA, WHO WAS ATTENDING PROCEEDINGS ON BEHALF OF THE ASSESSEE HAD TO GO TO MUMBAI TO ATTEND SOME PROFESSIONAL COMMITMENTS AND SUBSEQUENT LY, MR. DINESH JAIN ATTENDED THE PROCEEDINGS TILL COMPLETION OF ASSESSM ENT. 6. REPLYING TO THE ABOVE, LD. DR SUBMITTED THAT THE ASSESSEE AND HIS REPRESENTATIVE IS DUTY BOUND TO ATTEND ASSESSMENT P ROCEEDINGS AND FAILURE IN ITA NO. 4378 TO 4382/DEL/2013 & ITA 4383 TO 4386/D/2013 ASSTT.YEARS: 2006-07 TO 2010-11 5 THIS REGARD ATTRACTS PENALTY U/S 271(1)(B) OF THE A CT. THE DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE ASSESSEE COULD NOT EXPLAIN REASONABLE CAUSE FOR NON-COMPLIANCE OF THE NOTICES, THEREFORE, PENALTY IS IMPOSABLE. 7. ON CAREFUL CONSIDERATION OF ABOVE RIVAL SUBMISSI ONS, CONTENTIONS AND PERUSAL OF THE ENTIRE RECORD, AT THE OUTSET, WE OBS ERVE THAT THE ASSESSMENT IN ALL THESE APPEALS WAS COMPLETED U/S 143(3) R/W SECT ION 153A OF THE ACT. FROM THE ASSESSMENT ORDERS, WE CLEARLY OBSERVE THAT SHRI DINESH JAIN, CA AND AUTHORIZED REPRESENTATIVE OF THE ASSESSEE ATTEN DED THE ASSESSMENT PROCEEDINGS AND ALSO FILED NECESSARY DETAILS AND DO CUMENTS AS PER REQUIREMENT OF THE ASSESSING OFFICER. IN THIS SITU ATION, MERE SINGLE INSTANCE OF ABSENCE WHICH OCCURRED DUE TO OUTSTATION VISIT O F THE AR TO MUMBAI DOES NOT ATTRACT PENALTY U/S 271(1)(B) OF THE ACT. FROM THE ASSESSMENT AND PENALTY ORDERS, WE ALSO OBSERVE THAT THE ASSESSING OFFICER HAS NOT RECORDED ANY FINDING OF FACT THAT THE ASSESSEE WAS HABITUAL OF NON-COMPLIANCE OF NOTICES ISSUED BY THE DEPARTMENT AND MOREOVER, WE A LSO OBSERVE THAT THE ASSESSMENTS WERE COMPLETED ON 27.12.2011 ON THE RET URNED DOCUMENT WITHOUT MAKING ANY DISALLOWANCE OR ADDITION. IN TH IS SITUATION, WE ARE INCLINED TO HOLD THAT THE AUTHORITIES BELOW WRONGLY IMPOSED AND CONFIRMED THE PENALTY U/S 271(1)(B) OF THE ACT. ACCORDINGLY, SOLE GROUND OF THE ITA NO. 4378 TO 4382/DEL/2013 & ITA 4383 TO 4386/D/2013 ASSTT.YEARS: 2006-07 TO 2010-11 6 ASSESSEE IS ALLOWED AND PENALTY ORDER AS WELL AS IM PUGNED ORDER ARE SET ASIDE BY CANCELLING THE PENALTY LEVIED U/S 271(1)(B) OF T HE ACT. 8. IN THE RESULT, ALL THE APPEALS ARE ALLOWED IN TH E MANNER AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH JANUARY 2014. SD/- SD/- (G.D. AGRAWAL) (CHANDRAMOHAN GARG) VICE PRESIDENT JUDICIAL MEMBER DT. 17TH JANUARY 2014 GS COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. C.I.T.(A) 4. C.I.T. 5. DR BY ORDER ASSTT.REGISTRAR