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

ITA 4389/DEL/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 2837 (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: Allowed
• Bench Allotted: E
• Assessment Year: 2013-2014
• Appeal Filed On: 14-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure
• Section: 142(1); 153A; 201; 43; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER AND MS SUCHITRA KAMBLE, JUDICIAL MEMBER (THROUGH VIDEO CONFERENCING ITA NO. 4389 TO 4393 /DEL/2019 ( A.Y S 201 3 - 14 TO 2017 - 18 ) 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. GAYASUDDIN ANSARI, SR. DR ORDER PER R.K. PANDA, A M THE ABOVE F IVE APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE COMMON ORDER DATED 30 TH MARCH, 2019 OF THE CIT (A), GURGAON, FOR ASSESSMENT YEAR 2013 - 14 TO 2017 - 18, RESPECTIVELY. 2. SINCE IDENTICAL GROUNDS HAVE BEEN TAKEN BY THE ASSESSEE IN ALL THESE APPEALS, THEREFORE, THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER. DATE OF HEARING 1 9 .11.2020 DATE OF PRONOUNCEMENT 25 .11.2020 2 ITA NOS. 4389 TO 43 93 /DEL/2019 3. IN ALL THESE APPEALS, THE ASSESSEE HAS CHALLENG ED THE EX PARTE ORDER OF THE CIT(A) IN CONFIRMING THE PENALTY OF RS.10,000/ - FOR EACH ASSESSMENT YEAR LEVIED BY THE AO U/S 271 (1)(B) OF THE IT ACT. 4. FACTS OF THE CASE, IN BRIEF, ARE THAT A SEARCH AND SEIZURE OPERATION U/S 132 OF THE IT ACT WAS CARRIED ON ON 12 TH JANUARY, 2017 AT THE BUSINESS PREMISES OF M/S MASTANA FOODS PVT. LTD. AS WELL AS RESIDENTIAL PREMISES OF ITS DIRECTORS. IN RESPONSE TO THE NOTICE ISSUED U/S 153A OF THE IT ACT DATED 27 TH FEBRUARY, 2018, THE ASSESSEE FILED RETURN OF INCOME FOR THE ABOVE F IVE YEARS. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO ISSUED NOTICE U/S 142(1) DATED 26 TH OCTOBER, 2018 ALONG WITH THE QUESTIONNAIRE FOR THE RESPECTIVE ASSESSMENT YEAR. HOWEVER, THERE WAS NO RESPONSE FROM THE SIDE OF THE ASSESSEE TO T HE NOTICE ISSUED U/S 142(1) FOR WHICH THE AO INITIATED PENALTY PROCEEDINGS U/S 271(1)(B) AND, THEREAFTER, LEVIED PENALTY OF RS.10,000/ - FOR EACH OF THE ABOVE ASSESSMENT YEAR U/S 271(1)(B) OF THE IT ACT. SINCE THERE WAS NON - APPEARANCE FROM THE SIDE OF THE ASSESSEE, THE LD.CIT(A) IN HIS EX PARTE ORDER CONFIRMED THE PENALTY SO LEVIED BY THE AO U/S 271(1)(B) OF THE ACT. 5. AGGRIEVED WITH SUCH EX PARTE ORDER OF THE CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 6. THE LD. COUNSEL FOR THE ASSESSEE, AT THE OUTSET, SUBMITTED THAT THERE WAS ONLY ONE NOTICE OF HEARING ISSUED BY THE CIT(A) FOR THE HEARING OF THE APPEAL S AND NO SUFFICIENT OPPORTUNITY WAS GRANTED TO THE ASSESSEE. HE ACCORDINGLY SUBMITTED THAT IN THE INTEREST OF JUSTICE THE ASSESSEE SHOULD BE GIVE N ONE MORE OPPORTUNITY TO SUBSTANTIATE ITS CASE. 7. THE LD. DR, ON THE OTHER HAND, SUBMITTED THAT DUE TO UTTER DISREGARD OF THE ASSESSEE TO THE STATUTORY NOTICE S ISSUED BY THE AO AS WELL AS THE CIT(A), PENALTY LEVIED BY THE AO HAS RIGHTLY BEEN SUSTAIN ED BY THE CIT(A) . THEREFORE, 3 ITA NOS. 4389 TO 43 93 /DEL/2019 THE ORDER OF THE CIT(A) SHOULD BE UPHELD AND THE GROUNDS RAISED BY THE ASSESSEE SHOULD BE DISMISSED. 8. WE HAVE HEARD THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES AND PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE FIND, THE AO, IN THE INSTANT CASE, LEVIED PENALTY OF RS.10,000/ - FOR EACH OF THE ABOVE ASSESSMENT YEAR FOR NON - COMPLIANCE TO THE STATUTORY NOTICE ISSUED U/S 142(1) ALONG WITH THE QUESTIONNAIRE. WE FIND, THE LD.CIT (A) CONFIRMED THE PENALTY SO LEVIED BY THE AO ON THE GROUND THAT DESPITE ISSUE OF NOTICE THE ASSESSEE DID NOT APPEAR BEFORE HIM. IT IS THE SUBMISSION OF THE LD. COUNSEL THAT GIVEN AN OPPORTUNITY THE ASSESSEE IS IN A POSITION TO SUBSTANTIATE ITS CASE BEFOR E THE CIT(A) REGARDING THE NON - COMPLIANCE. CONSIDERING THE FACT THAT THE LD.CIT(A) HAS ISSUED ONLY ONE NOTICE OF HEARING TO THE ASSESSEE AND, THEREAFTER, PASSED THE EX PARTE ORDER, THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND IN THE IN TEREST OF JUSTICE, WE DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE CIT(A) WITH A DIRECTION TO GRANT ONE FINAL OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE ITS CASE AND DECIDE THE ISSUE AS PER FACT AND LAW. THE ASSESSEE IS ALSO HEREBY DIRECTED TO APPEAR BEFORE THE CIT(A) AND PRESENT ITS CASE FAILING WHICH THE LD.CIT(A) IS AT LIBERTY TO PASS APPROPRIATE ORDER AS PER LAW. WE HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 9 . IN RES ULT, ALL THE APPEAL S FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN T HE OPEN COURT ON THIS 2 5 T H DAY OF N OVEMBER , 2020 . S D / - S D / - (SUCHITRA KAMBLE) (R. K . PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 5 /11/2020 4 ITA NOS. 4389 TO 43 93 /DEL/2019 D K COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI