Nitin Yadav, New Delhi V. ITO, New Delhi

ITA 4379/DEL/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6801 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 20-10-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 10-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SAMEER SHARMA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SM C - II , NEW DELHI BEFORE SH. N. K. SAINI, A CCOUNTANT M EMBER ITA NO. 4379 /DEL/2016 : ASSTT. YEAR : 2008 - 09 MR. NITIN YADAV, HOUSE NO. 249, OPP. FUN N FOOD VIL LAGE, NEAR MOTHER LAND SCHOOL KAPASHERA, NEW DELHI - 110037 VS INCOME TAX OFFICER, WARD - 2 6(3) , NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A BFPY2271E ASSESSEE BY : SH. SAMEER SHARMA, CA REVENUE BY : SH. RAJESH KUMAR , SR. DR DATE OF HEARING : 20 .10 .201 6 DATE OF PRONOUNCEMENT : 26 . 10 .201 6 ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 26 .0 6 .2016 OF LD. CIT(A) - 15 , DELHI . 2. THE ONLY GRIEVANCE OF THE ASSESSEE IN THIS APPEAL RELATES TO THE CONFIR MATION OF PENALTY LEVIED BY THE AO U/S 271(1)(B) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 3. FACTS OF THE CASE IN BRIEF ARE THAT THE AO LEVIED THE IMPUGNED PENALTY BY OBSERVING THAT THE NOTICES WERE ISSUED TO THE ASSESSEE ON VARIO US DATES BUT THERE WAS NO COMPLIANCE. ACCORDINGLY, PENALTY OF RS. 10,000/ - WAS LEVIED U/S 271(1)(B) OF THE ACT. ITA NO. 4379 /DEL /201 6 NITIN YADAV 2 4. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO SUSTAINED THE PENALTY LEVIED BY THE AO U/S 271(1)(B) OF THE ACT. 5. NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO NOTICE ISSUED BY THE AO WAS RECEIVED BY THE ASSESSEE AND NOTHING IS BROUGHT ON RECORD THAT THE NOTICE SENT BY SPEED POST WAS SERVED UPON THE ASSESSEE . IT WAS FURTHER SUBMITTED T HAT IN CASE OF THE NOTICES WERE NOT SERVED, T HE AO COULD HAVE TAKEN ANOTHER COURSE TO SERVE THE NOTICE ON THE ASSESSEE BY ISSUING THE SAME THROUGH RPAD OR BY AFFIXTURE. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE WAS NO MALAFIDE INTENTION TO DISO BEY THE NOTICE ISSUED BY THE DEPARTMENT , HOWEVER, THE ASSESSEE COULD NOT APPEAR BECAUSE NO NOTICE WAS RECEIVED BY HIM. HE REQUESTED FOR THE DELETION OF PENALTY LEVIED BY THE AO AND SUSTAINED BY THE LD. CIT(A) U/S 271(1)(B) OF THE ACT. 6. IN HIS RIVAL SUBM ISSIONS THE LD. DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE ASSESSEE DID NOT COMPLY WITH THE VARIOUS NOTICES ISSUED BY THE AO. THEREFORE, PENALTY WAS RIGHTLY LEVIED BY THE AO AND CONFIRMED BY THE LD. CIT(A) U/S 271(1)(B) OF THE ACT. ITA NO. 4379 /DEL /201 6 NITIN YADAV 3 7. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE AO LEVIED THE PENALTY U/S 271(1)(B) OF THE ACT BY OBSERVING THAT THE NOTICE S U/S 142 (1)/143(2) OF THE ACT, WERE ISSUE D TO THE ASSESSEE BUT NOWHERE HE HAD STAT ED THAT ANY OF SUCH NOTICES WAS RECEIVED BY THE ASSESSEE . THEREFORE, IN THE ABSENC E OF SUCH OBSERVATION OF THE AO, T HE PENALTY U/S 271(1)(B) OF THE ACT WAS NOT JUSTIFIED. ACCORDINGLY , THE SAME IS DELETED. 8 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . (ORDER PRON OUNCED IN THE COURT ON 26 /10 /2016) SD/ - (N. K. SAINI) ACCOUNTANT MEMBER DAT ED: 26 /10 /2016 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR