SMT KUSUM DAGA, Nagpur V. A,C.I.T CENT CIR. 1(4), Nagpur

ITA 440/NAG/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1324 (ITAT-NAGPUR)
• Duration Of Justice: 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 13-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AGNES P THOMAS
• Keywords: Reasonable cause; Non compliance
• Section: 273B

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. (S.M.C.) S.NO. ITA NO. ASSTT.YEAR APPELLANT RESPONDENT. 1 TO 7. 440 TO 446/NAG/2016 2004 - 05 TO 2010 - 11. SMT. KUSUM DAGA, NAGPUR. ASSTT. COMMISSIONER OF INCOME - TAX, CENTRAL CIR.1(4), NAGPUR. 8 TO 13 447 TO 452/NAG/2016. 2004 - 05 TO 2009 - 10. M/S SHUBH LABH INDUSTRIALISERS & ENVIRONMENTS PURIFICATION SPECIALIST PVT. LTD. ASSTT. COMMISSIONER OF INCOME - TAX, CENTRAL CIR.1(4), NAGPUR. 14 TO 20 453 TO 459/NAG/2016. 2004 - 05 TP 2010 - 11. SHRI KAUTILYA DAGA, NAGPUR. ASSTT. COMMISSIONER OF INCOME - TAX, CENTRAL CIR.1(4), NAGPUR. APPELLANT BY : SHRI MUKESH AGRAWAL. RESPONDENT BY : SMT. AGNES P. THOMAS. DATE OF HEARING : 0 5 - 10 - 2016 DATE OF PRONOUNCEMENT : 5 TH OCT., 2016 O R D E R. THESE ARE APPEALS BY THE ASSESSEES BELONGING TO THE SAME GROUP AGAINST THE RESPECTIVE ORDERS OF LEARNED CIT(APPEALS) CONFIRMING THE LEVY OF PENALTY U/S 271(1)(B) AMOUNTING TO RS.10,000/ - FOR EACH OF THE YEAR. 2. IN ALL THESE CASES THE AO NOTED THAT THERE WERE 11/12 NON COMPLIANCES/DEFAULTS BY THE ASSESSEE. REASONABLE CAUSE FOR THE DELAY SUBMITTED 2 BY THE ASSESSEE , THAT THE MAIN PERSON OF THE ASSESSEE LOOKING AFTER THE INCOME - TAX MATTER I.E. SHRI KAUTI LYA DAGA WAS SUFFERING FROM AILMENTS WAS NOT ACCEPTED BY THE AO AND THE LEARNED CIT(APPEALS). THE AO LEVIED THE PENALTY OF RS.10,000/ - FOR ONE DEFAULT. THE AO DID NOT SPECIFY AS TO WITH REFERENCE TO WHICH PARTICULAR DEFAULT HE IS NOT SATISFIED WITH THE REA SONABLE CAUSE ATTRIBUTED. THE ASSESSEE ALSO SUBMITTED BEFORE THE LEARNED CIT(APPEALS) THAT THIS ITAT IN THE CASE OF THE SAME GROUP OF ASSESSEE IN SAME CIRCUMSTANCES VIDE ORDER DATED 21 ST AUGUST, 2015 IN THE CASE OF M/S CENTRAL INDIA MINERALS HAS DELETED S IMILAR PENALTIES ON SIMILAR FACTS. HOWEVER, LEARNED CIT(APPEALS) IN HIS WISDOM HELD THAT THE SAID DECISION WAS ON A DIFFERENT SET OF FACTS. 3. AGAINST THE ABOVE ORDER THE ASSESSEES ARE IN APPEAL BEFORE THE ITAT. 4. I HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. I FIND THAT THE DIVISION BENCH OF THIS TRIBUNAL IN THE CASE OF M/S CENTRAL INDIA MINERALS (SUPRA) ON SAME SET OF FACTS HAS DELETED THE PENALTY HOLDING AS UNDER : 5. WE HAVE HEARD THE LEARNED D.R. ASSESSEES COUNSEL HAS SUBMITTED AN ADJOURNM ENT PETITION. HOWEVER, WE FIND THAT THE ISSUE INVOLVED IS A SMALL ONE AND CAN BE ADJUDICATED BY HEARING THE LEARNED D.R. AND PERUSING THE RECORDS. ACCORDINGLY THE ADJOURNMENT PETITION HAS BEEN REJECTED. 6. UPON CAREFUL CONSIDERATION WE FIND THAT PENALT Y OF ` .10,000/ - IN EACH YEAR HAS BEEN LEVIED UNDER SECTION 271(1)(B) OF THE I.T. ACT FOR THE FAILURE OF THE ASSESSEE TO COMPLY WITH THE NOTICE OF THE ASSESSING OFFICER. WE FIND THAT SECTION 273B PROVIDES THAT PENALTY IN SUCH CASES NEED NOT BE LEVIED IF IT IS PROVED THAT THERE WAS REASONABLE CAUSE OF THE SAID FAILURE. WE FIND THAT THE ASSESSEE HAS SUBMITTED THAT THE MAIN PARTNER OF THE FIRM WAS NOT KEEPING WELL IN THIS PERIOD. FOR THIS PURPOSE MEDICAL CERTIFICATES HAVE ALSO BEEN PRODUCED BEFORE THE LEARNED CIT(APPEALS). LEARNED CIT(APPEALS) HAS NOT DOUBTED THE CLAIM OF ILLNESS OF THE SAID MAIN PARTNER. IN OUR CONSIDERED OPINION THE ABOVE EXPLANATION WILL SUFFICE AS A REASONABLE CAUSE FOR THE FAILURE OF THE ASSESSEE SO AS TO NOT INVITE RIGOUR OF PENALTY UN DER SECTION 271(1)(B) OF THE I.T. ACT. ACCORDINGLY WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND DELETE THE LEVY OF PENALTY. 3 5. I FIND THAT THE FACTS IN THE ABOVE SAID CASE OF THE ITAT ARE SIMILAR TO THE FACTS IN THE PRESENT APPEALS. SINCE THE DIVISION BENCH OF THE ITAT HAS DELETED THE PENALTY IN SIMILAR CIRCUMSTANCES, I DO NOT FIND ANY REASON TO DEPART FROM THE SAME. FURTHER MORE I ALSO NOTE THAT AS AGAINST THE 11 /12 DEFAULTS NOTED BY THE AUTHORITIES BELOW, PENALTY FOR ONLY ONE DEFAULT HAS BEEN LEVIED WITHOUT SPECIFYING AS TO THE DEFAULT WITH REFERENCE TO WHICH PENALT Y WAS BEING LEVIED. HENCE I FIND THAT ON THE FACTS AND CIRCUMSTANCES OF THIS CASE RESPECTFULLY FOLLOWING THE PRECEDENT AS ABOVE, THE PENALTY FOR ONE DEFAULT IN THIS CASE DESERVES TO BE DELETED. ACCORDINGLY I SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND DE LETE THE LEVY OF PENALTY. 6. IN THE RESULT, THESE APPEALS BY THE ASSESSEE STAND ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 5 TH DAY OF OCT., 2016. SD / - ( SHAMIM YAHYA) ACCOUNTANT MEMBER. NAGPUR, DATED: 5 TH OCT. , 2016. COPY FORWARDED TO : 1. ________________________ 5, TEMPLE ROAD, CIVIL LINES, NAGPUR. 2. A.C.I.T., CENTRAL CIRCLE - 1( 4 ), NAGPUR. 3. C.I.T. - (CENTRAL), NAGPUR. 4. CIT(APPEALS), - 3, NAGPUR. 5. D.R., ITAT, NAGPUR. 6. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR. WAKODE.