Mastana Foods Pvt Ltd, New Delhi V. DCIT Central Circle, Karnal

ITA 4388/DEL/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 2842 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Assessment Year: 2012-2013
• Appeal Filed On: 14-05-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Non compliance
• Section: 142(1); 153A; 274; 144

Judgement Text

1 ITA NOS. 4387 & 4388/DEL/2019 IN THE INCOME TAX APPELLAT E TRIBUNAL DELHI BENCH: E NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBE R AND MS SUCHITRA KAMBLE, JUDIC IAL MEMBER ITA NO. 4387/DEL/2019 ( A .Y 2011-12) ITA NO. 4388/DEL/2019 ( A .Y 2012-13) (THROUGH VIDEO CONFEREN CING) MASTANA FOODS PVT. LTD. 2646, FF, GALI RAGHUNANDAN, NAYA BAZAR, NEW DELHI AACCM9944N (APPELLANT) VS DCIT CENTRAL CIRCLE KARNAL (RESPONDENT) APPELLANT BY MS. SWEETY KOTHARI, ADV, MS. RINKY SHARMA, ITP RESPONDENT BY SH. VIPUL KASHYAP, SR. DR ORDER PER SUCHITRA KAMBLE, JM THESE TWO APPEALS ARE FILED BY THE ASSESSEE AGAINS T THE ORDER DATED 31/3/2019 PASSED BY CIT(A)-3, GURGAON, FOR ASSESSM ENT YEAR 2011-12 & 2012-13 RESPECTIVELY. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- ITA NO. 4387/DEL/2019 1. THE CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRM ING THE IMPOSITION THE PENALTY OF RS. 10,000/- U/S 271(L)(B) OF THE ACT BY DISPOSING OFF THE APPEAL A) WITHOUT AFFORDING A REASONABLE OPPORTUNITY TO THE A SSESSEE TO EXPLAIN ITS CASE AND B) BY ALLEGING THAT NONE ATTENDED ON THE DATE OF HEAR ING IGNORING THAT AN ADJOURNMENT APPLICATION WAS SENT THROUGH EMAIL. DATE OF HEARING 18.11.2020 DATE OF PRONOUNCEMENT 25.11.2020 2 ITA NOS. 4387 & 4388/DEL/2019 THUS, THE LEVY OF PENALTY SHOULD BE DELETED.. 2. THE CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMI NG THE IMPOSITION THE PENALTY OF RS. 10,000/- U/S 271(L)(B) OF THE ACT IG NORING THAT THE SPECIFIC DEFAULT WAS NOT MENTIONED IN THE NOTICE ISSUED U/S 274 R.W.S 271(L)(B) OF THE ACT AND THUS CONDITIONS FOR LEVY OF PENALTY WERE NO T FULFILLED. THUS, THE LEVY OF PENALTY SHOULD BE DELETED. 3. THE CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMI NG THE IMPOSITION THE PENALTY OF RS. 10,000/- U/S 271(L)(B) OF THE ACT IG NORING THAT THE SAID PENALTY IS LEVIED FOR NON-COMPLIANCE ON A PARTICULAR DATE A ND ALSO IGNORING THAT THE NOTICE DATED 22/06/2018 FIXING THE DATE OF HEARING ON 20/7/2018 WAS DULY ATTENDED BY THE ASSESSEE BY FILING A REQUEST FOR AD JOURNMENT OF THE HEARING ON THE SAID DATE AS MENTIONED IN THE ASSESSMENT ORD ER ITSELF. THUS, THE LEVY OF PENALTY SHOULD BE DELETED. ITA NO. 4388/DEL/2019 1. THE CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE IMPOSITION THE PENALTY OF RS. 10,000/- U/S 271(L)(B) OF THE ACT BY DISPOSING OFF THE APPEAL A) WITHOUT AFFORDING A REASONABLE OPPORTUNITY TO THE A SSESSEE TO EXPLAIN ITS CASE AND B) BY ALLEGING THAT NONE ATTENDED ON THE DATE OF HEARI NG IGNORING THAT AN ADJOURNMENT APPLICATION WAS SENT THROUGH EMAIL. THUS, THE LEVY OF PENALTY SHOULD BE DELETED. 2. THE CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMI NG THE IMPOSITION THE PENALTY OF RS. 10,000/- U/S 271(L)(B) OF THE ACT IG NORING THAT THE SPECIFIC DEFAULT WAS NOT MENTIONED IN THE NOTICE ISSUED U/S 274 R.W.S 271(L)(B) OF THE ACT AND THUS CONDITIONS FOR LEVY OF PENALTY WERE NO T FULFILLED. THUS, THE LEVY OF PENALTY SHOULD BE DELETED. 3 ITA NOS. 4387 & 4388/DEL/2019 3. THE CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMI NG THE IMPOSITION THE PENALTY OF RS. 10,000/- U/S 271(L)(B) OF THE ACT IG NORING THAT THE SAID PENALTY IS LEVIED FOR NON-COMPLIANCE ON A PARTICULAR DATE A ND ALSO IGNORING THAT THE NOTICE DATED 22/06/2018 FIXING THE DATE OF HEARING ON 2/7/2018 WAS DULY ATTENDED BY THE ASSESSEE BY FILING A REQUEST FOR A DJOURNMENT OF THE HEARING ON THE SAID DATE AS MENTIONED IN THE ASSESSMENT ORD ER ITSELF. THUS, THE LEVY OF PENALTY SHOULD BE DELETED. 3. THE PENALTY ORDER UNDER SECTION 271(1)(B) WAS PA SSED ON 14.11.2018 FOR NON COMPLIANCE OF THE NOTICE UNDER SECTION 142 (1 ) ON 17 OCCASIONS. THE ASSESSMENT ORDER WAS PASSED UNDER SECTION 153A R.W. S. 144 OF THE INCOME TAX ACT, 1961 ON 21.12.2018. 4. BEING AGGRIEVED BY THE PENALTY ORDER UNDER SECTI ON 271(1)(B) OF THE ACT, THE ASSESSEE FILED APPEAL BEFORE THE CIT(A). THE C IT(A) DISMISSED THE APPEAL OF THE ASSESSEE. 5. THE LD. AR SUBMITTED THAT THE CIT(A) HAS NOT GIV EN THE APPROPRIATE OPPORTUNITY OF HEARING TO THE ASSESSEE TO REPRESEN T HIS CASE. 6. THE LD. DR RELIED UPON THE ASSESSMENT ORDER AND THE ORDER OF THE CIT(A). 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. IT IS PERTINENT TO NOTE THAT THE ASSESSING OFFICER OBSERVED IN THE ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS NOT COMPLY ING WITH THE NOTICE UNDER SECTION 142(1) OF THE ACT, HENCE THE PENALTY ORDER UNDER SECTION 271(1)(B) HAS BEEN LEVIED. BEFORE THE CIT(A) NONE APPEARED AND TH E LD. AR SUBMITTED DURING THE HEARING THAT NOTICE OF HEARING BEFORE CIT(A) WA S NOT RECEIVED BY THE ASSESSEE. FROM THE PERUSAL OF THE ORDER OF THE CIT (A), IT CAN BE SEEN THAT THE CIT(A) HAS NOT GIVEN ANY CATEGORICAL FINDING ON MER IT OF THE CASE. THEREFORE, IT 4 ITA NOS. 4387 & 4388/DEL/2019 WILL BE APPROPRIATE TO GIVE THE OPPORTUNITY OF HEAR ING TO THE ASSESSEE BEFORE THE CIT(A). HENCE, WE ARE REMANDING BACK THE ENTIRE IS SUE TO THE FILE OF THE CIT(A) TO BE DECIDED ON MERIT. NEEDLESS TO SAY, THE ASSES SEE BE GIVEN OPPORTUNITY OF HEARING BY FOLLOWING PRINCIPLES OF NATURAL JUSTICE. WE FURTHER DIRECT THE ASSESSEE TO CO-OPERATE THE REVENUE AUTHORITIES FOR JUST AND PROPER DISPOSAL BY REMAINING PRESENT ON THE HEARING DATES AND SUBMIT T HE RELEVANT DOCUMENTS, OTHERWISE, THE REVENUE IS AT LIBERTY TO DISMISS THE APPEALS OF THE ASSESSEE EX- PARTE ON MERIT. BOTH THE APPEALS OF THE ASSESSEE AR E PARTLY ALLOWED FOR STATISTICAL PURPOSE. 8. IN RESULT, BOTH THESE APPEAL FILED BY THE ASSES SEE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 25TH D AY OF NOVEMBER, 2020 . SD/- SD/- (R. K. PANDA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL M EMBER DATED: 25/11/2020 R. NAHEED COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 5 ITA NOS. 4387 & 4388/DEL/2019