Vijay Kumar, Uttar Pradesh V. ACIT, New Delhi

ITA 4466/DEL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74131 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2005-2006
• Appeal Filed On: 25-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAMEER SARMA
• Assessee Lawyers: V K DHING RA
• Keywords: Search and seizure; Principle of natural justice; Reasonable cause
• Section: 273B; 142(1); 144

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H : NEW DELHI BEFORE SHRI SHAMIM YAHYA , ACCOUNTANT MEMBER AND SHRI A. T. VARKEY, JUDICIAL MEMBER ITA NO. 4464/DEL/2013 (ASSESSMENT YEAR: 2003 - 04) ITA NO. 4465 /DEL/2013 (ASSESSMENT YEAR: 2004 - 05) ITA NO. 4466 /DEL/2013 (ASSESSMENT YEAR: 2005 - 06) ITA NO. 4467 /DEL/2013 (ASSESSMENT YEAR: 2006 - 07) ITA NO. 4468 /DEL/2013 (ASSESSMENT YEAR: 2007 - 08) ITA NO. 4457 /DEL/2013 (ASSESSMENT YEAR: 2008 - 09) ITA NO. 4458 /DEL/2013 (ASSESSMENT YEAR: 2009 - 10) VIJAY KUMAR, VILLA GE DARKULLI, TEHSIL/POST - SASANI , MAHA MAYA NAGAR, HATRAS, UTTAR PRADESH BANPK8254N VS. ACIT CENTRAL CIRCLE - 21, JANDEWALAN EXTENSION , NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY : V . K. DHINGRA, CA RESPONDENT BY: SAMEER SARMA , SR. DR O R D E R PER BENCH THESE APPEALS ARE DIRECTED AGAINST THE PENALTY CONFIRMED BY THE LD CIT(A) - II NEW DELHI UNDER SECTION 271(1)(B) DATED 24 . 06 .2013 FOR ASSESSMENT YEAR 2003 - 04 UP TO 2009 - 10. 2. THE SAID PENALTY WAS IMPOSED BY THE ASSESSING OFFICER AS THE ASSESSEE FAILED TO COMPLY WITH THE NOTICE SENT U/S 142(1) OF THE INCOME TAX ACT (HEREINAFTER THE ACT) DATED 13.12.2010. THE EVENT WHICH LED TO THE PENALTY WAS THAT NEITHER THE ASSESSEE NOR HIS REPRESENTATIVE CARED TO TURN UP ON 20.12.2010, THE DAY FIXED FOR HEARING BY THE ASSESSING OFFICER BY THE SAID NOTICE U/S 142(1) OF THE ACT. FINDING NO ONE PRESENT ON BEHALF OF THE ASSESSEE, THE ASSESSING OFFICER PROCEEDED EX - PARTE AND PASSED AN ASSESSMENT ORDER U/S 144 OF THE ACT ON 30.12.2010 AT AN INCOME OF RS. 5 LAKHS . THEREAFTER, BEFORE IMPOSING THE IMPUGNED PENALTY, A SHOW CAUSE NOTICE WAS ISSUED BY THE ASSESSING OFFICER ON 30.12.2010 , WHICH WAS NOT REPLIED BY THE ASSESSEE, THEREFORE ANOTHER SHOW CAUSE NOTICE DATED 27.05.2011 WAS ISSUED FIXING THE DATE OF HEARING ON 06.06.2011 . IN RESPONSE TO THE SAID SHOW CAUSE NOTICE THE PAGE NO. 2 ASSESSEE REPLIED VIDE LETTER DATED 1 3 .06.2011, THAT HE DID NOT RECEIVE ANY NOTICE. IN THE SAID REPLY HE MENTIONS HIS PERMANENT ADDRE SS AS VILLAGE - DARKULI, TEHSIL/POST SASANI, MAHA MAYA NAGAR, HATRAS, UTTAR PRADESH AND HE ALSO PLEADED THAT THERE WAS NO WILLFUL ACT ON THE PART OF THE ASSESSEE FOR NOT ATTENDING THE ASSESSMENT PROCEEDING IN PURSUANCE TO THE NOTICE ISSUED. DISSATISFIED WITH THE SAID REPLY OF THE ASSESSEE, THE ASSESSING OFFICER REJECTED THE SAID EXPLANATION TENDERED BY THE ASSESSEE AND THE ASSESSING OFFICER WAS OF THE OPINION THAT, NON - COMPLIANCE OF THE STATUTORY NOTICE WAS A DELIBERATE ACT OF THE ASSESSEE AND RULED THAT THE ASSESSEE WAS IN DEFAULT AND LIABLE FOR PENALTY U/S 271(1)(B) READ WITH SECTION 274 AND IMPOSED A PENALTY OF RS. 10,000/ - FOR EACH ASSESSMENT YEARS FROM ASSESSMENT YEAR 2003 - 04 TO ASSESSMENT YEAR 2009 - 10. 3. AGGRIEVED BY THE IMPOSITION OF PENALTY, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD CIT(A) ON THE GROUND OF VIOLATION OF PRINCIPLE OF NATURAL JUSTICE AND ON THE GROUND THAT THE PENALTY CAN BE IMPOSED ONLY ON ACTUAL OR HABITUAL DEFAULTERS AND COULD NOT BE IMPOSED FOR MERE TECHNICAL NON - COMPLIANCE. 4. O N THE STATEMENT OF FACTS ENCLOSED WITH THE APPEAL BEFORE LD CIT(A) IT WAS STATED BY THE ASSESSEE THAT THE ADDRESS GIVEN IN THE ASSESSMENT ORDER WAS THAT WA - 68 , SHAKARPUR, LAXMI NAGAR, DELHI AND WHEREAS HIS NEW PERMANENT ADDRESS IS VILL - DARKULLI, TEHSIL POST - SASANI, MAHA MAYA NAGAR, HATRAS, UTTAR PRADESH . AND DURING THE PENALTY PROCEEDINGS BEFORE THE ASSESSING OFFICER ALSO THE ASSESSEE HAS STATED THAT HE DID NOT RECEIVE ANY NOTICE/ COMMUNICATION SEND BY THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDING WHICH CULMINATED IN ASSESSMENT ORDER DATED 30.12.2010 . THIS PARTICULAR PLEA OF THE ASSESSEE IN RESPECT TO HIS CHANGE OF ADDRESS COULD NOT SATISFY THE LD CIT(A) WHO WAS OF THE VIEW THAT THE ASS ESSEE SHOULD HAVE DULY INTIMATED THE ASSESSING OFFICER ABOUT THE CHANGE OF HIS ADDRESS AND SINCE HE DID NOT INTIMATE THE SAME TO THE ASSESSING OFFICER WHICH HE WAS DUTY BOUND TO DO, THE LD CIT(A) WAS OF THE VIEW THAT ASSESSING OFFICER COULD HAVE SEND THE N OTICE TO THE ADDRESS THAT IS MENTIONED IN FORM 35 AND HELD THAT THE CHANGE OF ADDRESS CANNOT BE PLEADED BY THE ASSESSEE TO JUSTIFY FOR NOT ATTENDING IN COMPLIANCE TO THE STATUTORY NOTICE ISSUED AGAINST HIM . IT WAS ALSO PLEADED BY THE ASSESSEE THAT PENALTY SHOULD BE IMPOSED ONLY ON HABITUAL DEFAULTER AND NOT ON TECHNICAL NON - COMPLIANCE . THAT GROUND WAS ALSO TURNED DOWN BY THE LD CIT(A) WHO HELD THAT FOR EVERY NON - COMPLIANCE WITH THE STATUTORY NOTICE A PENALTY OF RS. 10,000 CAN BE IMPOSED AND HE LD THAT THERE WAS NO COGENT REASONS OR REASONABLE CAUSE COULD BE BROUGHT BEFORE THE ASSESSING OFFICER OR BEFORE HIM TO ALTER THE VIEW OF THE ASSESSING PAGE NO. 3 OFFICER. ON THE SAID REASONING THE LD CIT(A) CONFIRMED THE PENALTY LEVIED BY THE ASSESSING OFFICER. 5. A GGRIEVED BY THE SAID CONFIRMATION OF THE PENALTY BY THE LD CIT(A) THE ASSESSEE IS BEFORE US. 6. THE LD AR STATED THAT THE ASSESSEE WAS A ONLY A PETTY RETAILER AND WAS ONLY A MINOR DURING THE ASSESSMENT YEAR 2003 - 04 AND 2004 - 05. HE CONTENDED THAT THE NOTICE DATED 13.12.2010 U/S 142 (1) WAS AFFIXED ON THE ADDRESS WHERE THE ASSESSEE WAS A TENANT IN DELHI AND THAT TOO FOUR DAYS BEFORE THE DATE OF HEARING WHICH WAS FIXED ON 20.12.2010. THE LD AR CONTENDED THAT THE NOTICE COULD BE AFFIXED ON THE OLD ADDRESS ONLY IF OTHER MODE OF SERVICE OF NOTICE HAS FAILED AND HE ALSO STATED THAT THE TIME GIVEN TO THE ASSESSEE WAS TOO SHORT A PERIOD FOR ANSWERING THE DETAILED QUESTIONNAIRE AND IT WAS HUMANLY IMPOSSIBLE TO PROVIDE THE ANSWER S ALONG WITH SUPPORTING DOCUMENTS WITHIN THE SHORT PERIOD OF FOUR DAYS . ACCORDING TO THE LD AR THERE WAS NO NECESSITY FOR THE UNDUE HASTE SHOWN BY THE A O TO PASS THE ORDER ON 30.12.2010 ITSELF . ACCORDING TO THE AR THE MATTER COULD NOT HAVE BECOME TIME BARRED. THE LD DR RELIED ON THE ORDER OF THE ASSESSING OFFICER AND LD CIT(A) . 7. LD DR ALSO BROUGHT TO OUR NOTICE THAT THE QUANTUM APPEAL IS PENDING BEFORE THE LD CIT(A) AND ANY ADVERSE OBSERVATIONS/COMMENTS/DECISION MAY AFFECT THE OUTCOME OF THE SAID QUANTUM APPEAL PREFERRED BY THE ASSESSEE IN THE VERY SAME CASE AGAINST THE ASSESSEE . 8 . WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RECORDS AND CASE LAWS CITED BY THE PARTIES. AT THE OUTSET LET US MAKE IT CLEAR THAT WE ARE NOT ADJUDICATING OR MAKING ANY OBSERVATION ON THE LEGALITY OF THE NOTICE SERVED U/S 153(C) AND LEGAL TENABILIT Y OF THE AFFIXTURE OF NOTICE U/S 142(1). WE ARE NOT EXPRESSING ANY OPINION ON THE MERITS OR LEGAL ISSUES INVOLVED IN THE SAID NOTICES. THE OPINION AND OBSERVATIONS GIVEN IN THIS ORDER WILL IN NO WAY AFFECT THE GROUNDS RAISED IN THE QUANTUM APPEAL PROCEEDIN G PENDING BEFORE THE CIT(A) . 9 . WITH THE SAID CAVEAT WE WOULD LIKE TO MAKE IT CLEAR THAT WE CONFINE OURSELVES TO EXAMINE IN THIS MATTER WHETHER THERE WAS REASONABLE CAUSE FOR THE ASSESSEE NOT TO HAVE BEEN PRESENT BEFORE THE ASSESSING OFFICER, AFTER KNOWLED GE OF NOTICE U/S 142(1) OR NOT. LET US LOOK INTO THE PROVISIONS OF LAW CONCERNING THE SAME. SECTION 271 FAILURE TO FURNISH RETURNS, COMPLY WITH NOTICES, CONCEALMENT OF INCOME, ETC. (1) IF THE ASSESSING OFFICER OR THE COMMISSIONER (APPEALS) IN THE COURSE OF ANY PROCEEDINGS UNDER THIS ACT, IS SATISFIED THAT ANY PERSON - PAGE NO. 4 (A) ( OMITTED ) (B) HAS FAILED TO COMPLY WITH A NOTICE UNDER SUB - SECTION (1) OF SECTION 142 OR SUB - SECTION (2) OF SECTION 143 OR FAILS TO COMPLY WITH A DIRECTION ISSUED UNDER SUB - SECTION ( 2A) OF SECTION 142; OR (C) HAS CONCEALED THE PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF SUCH INCOME, HE MAY DIRECT THAT SUCH PERSON SHALL PAY BY WAY OF PENALTY, - (I) ( OMITTED ) (II) IN THE CASES REFERRED TO IN CLAUSE (B), IN ADDITION TO ANY TAX PAYABLE BY HIM, A SUM WHICH SHALL NOT BE LESS THAN ONE THOUSAND RUPEES BUT WHICH MAY EXTEND TO TWENTY - FIVE THOUSAND RUPEES FOR EACH SUCH FAILURE; (III) IN THE CASES REFERRED TO IN CLAUSE (C), IN ADDITION TO ANY TAX PAYABLE BY HIM, A SU M WHICH SHALL NOT BE LESS THAN BUT WHICH SHALL NOT EXCEED THREE TIMES THE AMOUNT OF TAX SOUGHT TO BE EVADED BY REASON OF THE CONCEALMENT OF PARTICULARS OF HIS INCOME OR THE FURNISHING OF INACCURATE PARTICULARS OF SUCH INCOME : EXPLANATION 1 : WHERE IN RESP ECT OF ANY FACTS MATERIAL TO THE COMPUTATION OF THE TOTAL INCOME OF ANY PERSON UNDER THIS ACT, - (A) SUCH PERSON FAILS TO OFFER AN EXPLANATION OR OFFERS AN EXPLANATION WHICH IS FOUND BY THE ASSESSING OFFICER OR THE COMMISSIONER (APPEALS) TO BE FALSE, OR ( B) SUCH PERSON OFFERS AN EXPLANATION WHICH HE IS NOT ABLE TO SUBSTANTIATE AND FAILS TO PROVE THAT SUCH EXPLANATION IS BONA FIDE AND THAT ALL THE FACTS RELATING TO THE SAME AND MATERIAL TO THE COMPUTATION OF HIS TOTAL INCOME HAVE BEEN DISCLOSED BY HIM, THE N, THE AMOUNT ADDED OR DISALLOWED IN COMPUTING THE TOTAL INCOME OF SUCH PERSON AS A RESULT THEREOF SHALL, FOR THE PURPOSES OF CLAUSE (C) OF THIS SUB - SECTION BE DEEMED TO REPRESENT THE INCOME IN RESPECT OF WHICH PARTICULARS HAVE BEEN CONCEALED. SECTION 273B IN THE INCOME - TAX ACT, 1995 273B. PENALTY NOT TO BE IMPOSED IN CERTAIN CASES. - NOTWITHSTANDING ANYTHING CONTAINED IN THE PROVISIONS OF CLAUSE (B) OF SUB - SECTION (1) OF SECTION 271, SECTION 271A, SECTION 271AA, SECTION 271B , SECTION 271BA, SECTION 2 71BB, SECTION 271C, SECTION 271CA, SECTION 271D, SECTION 271E, SECTION 271F, SECTION 271FA, SECTION 271FB,SECTION 271G, CLAUSE (C) OR CLAUSE (D) OF SUB - SECTION (1) OR SUB - SECTION (2) OF SECTION 272A, SUB - SECTION (1) OF SECTION 272AA OR SECTION 272B OR SUB - SECTION (1) OR SUB - SECTION (1A) OF SECTION 272BB OR SUB - SECTION (1) OF SECTION 272BBB OR CLAUSE (B) OF SUB - SECTION (1) OR CLAUSE (B) OR CLAUSE (C) OF SUB - SECTION (2) OF SECTION 273, NO PENALTY SHALL BE IMPOSABLE ON THE PERSON OR THE ASSESSEE, AS THE CASE M AY BE, FOR ANY FAILURE REFERRED TO IN THE SAID PROVISIONS IF HE PROVES THAT THERE WAS REASONABLE CAUSE FOR THE SAID FAILURE. 10 . FROM A PERUSAL OF THE ABOVE PROVISIONS, WE CAN UNDERSTAND THAT, NOTWITHSTANDING ANYTHING CONTAINED IN THE PROVISIONS OF CLAUSE (B) OF SUB - SECTION (1) OF SECTION 271, NO PENALTY SHALL BE IMPOSED ON THE PERSON OR THE ASSESSEE AS THE CASE MAY BE, FOR ANY FAIL URE REFERRED TO IN THE SAID PROVISION, IF HE PROVES THAT THERE WAS REASONABLE CAUSE FOR THE SAID FAILURE. SO IT CAN BE UNDERSTOOD THAT PENALTY CANNOT BE IMPOSED, IF THE ASSESSEE IS ABLE TO PROVE THAT THERE WAS REASONABLE PAGE NO. 5 CAUSE FOR THE SAID FAILURE OF NOT C OMPLYING WITH THE NOTICE SERVED ON THEM UNDER SUB - SECTION (1) OF SECTION 142 OF THE ACT . 11 . THE MEANING OF REASONABLE CAUSE HAS BEEN STATED IN THE CASE OF WODWARD GOVERNOR INDIA P. LTD. VS. CIT AND ORS. (2002) 253 ITR 745 (DELHI) PARA 5 & 6, IS REPRODUC ED BELOW: - WHAT WOULD CONSTITUTE REASONABLE CAUSE CANNOT BE LAID DOWN WITH PRECISION. IT WOULD DEPEND UPON FACTUAL BACKGROUND AND THE SCOPE FOR EXTREMELY LIMITED AND UNLESS THE CONCLUSIONS ARE PERVERSE BASED ON CONJECTURES OR SURMISES AND/ OR HAVE BEEN ARRIVED AT WITHOUT CONSIDERATION OF RELEVANT MATERIAL AND/ OR HAVE BEEN ARRIVED AT WITHOUT CONSIDERATION OF NO SCOPE FOR INTERFERENCE. REASONABLE CAUSE, AS APPLIED TO HUMAN ACTION IS THAT WHICH WOULD CONSTRAIN A PERSON OF AVERAGE INTELLIGENCE AND ORDINARY PRUDENCE. THE EXPRESSION REASONABLE IS NOT SUSCEPTIBLE OF A CLEAR AND PRECISE DEFINITION; FOR AN ATTEMPT TO GIVE A SPECIFIC MEANING TO THE WORD NOT SPACE. IT CAN BE DESCRIBED AS RATIONAL ACCORDING TO THE DICTATES OF REASON AND IS NOT EXCESSIVE OR IMMODER ATE. THE WORD REASONABLE HAS IN LAW THE PRIMA FACIE MEANING OF REASONABLE WITH REGARD TO THOSE CIRCUMSTANCES OF WHICH THE ACTOR, CALLED ON TO ACT REASONABLY, KNOWS OR OUGH6T O KNOW (SEE IN RE, A SOLICITOR (1945) KB 368 (CA).REASONABLE CAUSE CAN BE REASON ABLY SAID TO BE A CAUSE WHICH PREVENTS A MAN OF AVERAGE INTELLIGENCE AND ORDINARY PRODUCE, ACTING UNDER NORMAL CIRCUMSTANCES, WITHOUT NEGLIGENCE OR INACTION OR WANT OF BONA FIDES. 12 . IN THE CASE OF AZADI BACHAO ANDOLAN V. UNION OF INDIA 252 ITR 471 (DEL HI), DELHI, THE HON BLE HIGH COURT HELD THAT IS (REPRODUCED BELOW): - SECTION 273B STARTS WITH A NON OBSTANTE CLAUSE AND PROVIDES THAT NOTWITHSTANDING ANYTHING CONTAINED IN SEVERAL PROVISIONS ENUMERATED THEREIN INCLUDING SECTION 271C, NO PENALTY SHALL BE IMPOSABLE ON THE PERSON OR THE ASSESSEE, AS THE CASE MAY BE, FOR ANY FAILURE REFERRED TO IN THE SAID PROVISIONS, IF HE PROVES THAT THERE WAS REASONABLE CAUSE FOR THE SAID FAILURE A CLAUSE BEGINNING WITH 'NOTWITHSTANDING ANYTHING' IS SOMETIMES APPENDED TO A SECTION IN THE BEGINNING WITH A VIEW TO GIVE THE ENACTING PART OF THE SECTION IN CASE OF CONFLICT AN OVERRIDING EFFECT OVER THE PROVISION OF ACT MENTIONED IN THE NON OBSTANTE CLAUSE (SEE ORIENT PAPER AND INDUSTRIES LTD V STATE OF ORISSA, AIR 1991 SC 672) A NON OBSTANTE CLAUSE MAY BE USED AS A LEGISLATIVE DEVICE, TO MODIFY THE AMBIT OF THE PROVISION OF LAW MENTIONED IN THE NON OBSTANTE CLAUSE, OR TO OVERRIDE IT IN SPECIFIED CIRCUMSTANCES (SEE T R THANDUR V UNION OF INDIA, AIR 1996 SC 1643) THE TRUE EFFECT OF THE NON OBSTANTE CLAUSE IS THAT IN SPITE OF THE PROVISION OR ACT MENTIONED IN THE NON OBSTANTE CLAUSE, THE ENACTMENT FOLLOWING IT WILL HAVE ITS FULL OPERATION OR THAT THE PROVISIONS EMBRACED IN THE NON OBSTANTE CLAUSE WILL NOT BE AN IMPEDIMENT FOR THE O PERATION OF THE ENACTMENT (SEE SMT PARAYANKANDIYAL ERAVATH KANAPRAVAN KALLIANI AMMA V K DEVI, AIR 1996 SC 1963) THEREFORE, IN ORDER TO BRING IN APPLICATION OF SECTION 271C IN THE BACKDROP OF SECTION 273B, ABSENCE OF REASONABLE CAUSE, EXISTENCE OF WHICH HAS TO BE ESTABLISHED BY THE ASSESSEE, IS THE SINE QUA NON LEVY OF PENALTY UNDER SECTION 271C IS NOT AUTOMATIC BEFORE LEVYING PENALTY, THE CONCERNED OFFICER IS REQUIRED TO FIND OUT THAT EVEN IF THERE WAS ANY FAILURE REFERRED TO IN THE CONCERNED PROVISION THE SAME WAS PAGE NO. 6 WITHOUT A REASONABLE CAUSE THE INITIAL BURDEN IS ON THE ASSESSEE TO SHOW THAT THERE EXISTED REASONABLE CAUSE WHICH WAG THE REASON FOR THE FAILURE REFERRED TO IN THE CONCERNED PROVISION THEREAFTER THE OFFICER DEALING WITH THE MATTER HAS TO CONSIDER WHETHER THE EXPLANATION OFFERED BY THE ASSESSEE OR THE PERSON, AS THE CASE MAY BE, AS REGARDS THE REASON FOR FAILURE, WAS ON ACCOUNT OF REASONABLE CAUSE 'REASONABLE CAUSE' AS APPLIED TO HUMAN ACTION IS THAT WHICH WOULD CONSTRAIN A PERSON OF AVERAGE INTELL IGENCE AND ORDINARY PRUDENCE IT CAN BE DESCRIBED AS PROBABLE CAUSE IT MEANS AN HONEST BELIEF FOUNDED UPON REASONABLE GROUNDS, OF THE EXISTENCE OF A STATE OF CIRCUMSTANCES, WHICH ASSUMING THEM TO BE TRUE, WOULD REASONABLY LEAD ANY ORDINARILY PRUDENT AND CAU TIOUS MAN, PLACED IN THE POSITION OF THE PERSON CONCERNED, TO COME TO THE CONCLUSION THAT THE SAME WAS THE RIGHT THING TO DO THE CAUSE SHOWN HAS TO BE CONSIDERED AND ONLY IF IT IS FOUND TO BE FRIVOLOUS, WITHOUT SUBSTANCE OR FOUNDATION, THE PRESCRIBED CONSE QUENCES FOLLOW THE ABOVE BEING THE POSITION, THE COMMISSIONER'S NON - CONSIDERATION OF THE PLEA RAISED BY THE ASSESSEE ABOUT THE EXISTENCE OF REASONABLE CAUSE VITIATED THE ORDER ON THAT SCORE, WE FIND THE ORDER PASSED BY THE COMMISSIONER TO BE NON - MAINTAINABLE . 13 FROM A PERUSAL OF THE RECORDS IT REVEALS THAT THE FIRST NOTICE U/S 142(1) WAS SERVED AT THE ADDRESS OF THE ASSESSEE IN DELHI, WHICH HE CLAIMS TO HAVE SHIFTED TO U.P. ON 13.12.2010 DIRECTING HIM TO BE PRESENT BEFORE THE A.O. ON 20.12.2010 WITH RECORDS AND ANSWERS TO THE DETAILED QUESTIONNAIRE FOR THE ASSESSMENT YEAR 2003 - 04 TO 2009 - 10(I.E . 7 YEARS) . THIS 153C PROCEEDING S WAS INITIATED AFTER A SEARCH AND SEIZURE WHICH WAS CONDUCTED ON 20.10.2008 ON THE PREMISES OF ANOTHER ASSE SSEE NAMELY B.K. DHINGRA, SMT POONAM DHINGRA M/S. MADHUSUDA BUILDCON PVT LTD. AND ON THE BASIS OF CERTAIN DETAILS OF THE BANK ACCOUNT OF THE ASSESSEE FOUND IN THE SAID PREMISES; IN THE SAID BACKGROUND THE ASSESSING OFFICER INITIATED 153C PROCEEDING AGAINST THE ASSESSEE. AS STATED BEFORE NOTICE U/S 142(1) WAS FIRST SENT ON 13.12.2010 AND SECTION 144 ASSESSMENT WAS COMPLETED ON 30.12.2010 . EVEN IF FOR ARGUMENT SAKE IT IS ACCEPTED THAT THE NOTICE WAS RECEIVED BY THE ASSESSEE ON 14 TH OR 15 TH OF DECEMBER 2010, STILL, HE WOULD NOT HAVE BEEN ABLE TO ANSWER THE STANDARD DETAILED QUESTIONNAIRE FORWARDED TO HIM ALONG WITH THE NOTICE U/S 142(1) AND BE PRESENT BEFORE THE ASSESSING OFFICER WITH ALL SUPPORTING DOCUMENTS FOR 7 YEARS WITHIN A SPAN OF 5 T O 6 DAYS. EVEN IF ADJOURNMENT WAS SOUGHT ON 20.12.2010, STILL AN O THER 10 DAYS, I.E. ON 30.12.2010 WHEN THE SECTION 144 ASSESSMENT WAS PASSED, THE ASSESSEE COULD NOT HAVE ANSWERED OR PRODUCED ALL THE RECORD BEFORE THE ASSESSING OFFICER. SO IN THE SAID BACKG ROUND WHEN WE LOOK AT THE CLAIM OF THE ASSESSEE THAT HE DID NOT RECEIVE THE NOTICE U/S 142(1) SINCE HE CHANGED HIS ACCOMMODATION FROM DELHI TO U.P., WE DO NOT FIND ANY DIFFERENCE AS TO WHETHER HE RECEIVED THE NOTICE OR NOT. THE QUESTION AS TO WHETHER THE A SSESSEE WAS RESIDENT IN THE ADDRESS WITH THE PAGE NO. 7 DEPARTMENT IS A QUESTION OF FACT, WHICH IS EASILY VERIFIABLE BY THE DEPARTMENT AND WE DO NOT FIND ANY REPORT OF THE ITIS TO HOLD THE CONTRARY THAT THE ASSESSEE WAS A RESIDENT AT THE DELHI ADDRESS WHEN THE NOTIC E WAS ISSUED BY THE ASSESSING OFFICER AND HE IN FACT HAD RECEIVED THE NOTICE U/S 142(1). FROM THE REPLY OF THE ASSESSEE TO THE SHOW - CAUSE NOTICE IN THE PENALTY PROCEEDINGS DATED 13.06.2011, THE ASSESSEE HAS INTIMATED THAT HE IS RESIDING IN A DIFFERENT ADDR ESS, WHICH ITSELF MEANS THAT HE DID NOT RECEIVE THE NOTICE SENT BY THE DEPARTMENT TO THE OLD ADDRESS. WE DO NOT FIND ANY MATERIAL ON THE RECORD TO SUGGEST THAT THE ASSESSEE WAS RESIDING IN THE ADDRESS AT DELHI WHEN THE STATUTORY NOTICE WAS SERVED AT THE SA ID ADDRESS. EVEN IF FOR ARGUMENT SAKE IT IS TAKEN THAT HE HAS RECEIVED THE NOTICE STILL IT WOULD BE HUMANLY IMPOSSIBLE TO FURNISH ALL THE DETAILS AND ANSWER ALL THE QUERIES WITHIN A SHORT PERIOD OF SEVEN DAYS AND EVEN IF A ADJOURNMENT WAS GIVEN TILL THE DA TE OF ASSESSMENT ORDER, THEN ALSO HE WOULD NOT HAVE BEEN ABLE TO FURNISH ALL THE DETAILS BEFORE THE ASSESSING OFFICER. IT HAS BEEN HELD BY A COORDINATE BENCH OF THIS TRIBUNAL WHEREIN AN IDENTICAL CASE PENALTY WAS LEVIED U/S 271(1)(B) OF THE ACT ON SIMILAR FACTS , T HE TRIBUNAL HAD HELD IN ITA NO. 4239/DEL/2013 AT PAGE 7 OF THE PAPER BOOK, WHEREIN THE HONBLE VICE PRESIDENT HELD IN PARA 3 AS UNDER: - 3. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. THE PENALTY HAD BEEN LEVIED BY THE ASSESSING OFFICER FOR NON - COMPLIANCE OF THE NOTICE DATED 07.11.2010. FROM THE ASSESSMENT ORDER, IT IS EVIDENT THAT THE NOTICE UNDER SECTION 142(1)/143(2) DATED 07.11.2010 ALONGWITH THE DETAILED QUESTIONNAIRE WAS ISSUED FIXING THE CASE FOR 18.11.2010. THES E DETAILS HAVE BEEN MENTIONED BY THE ASSESSING OFFICER IN PARAGRAPH 2 PAGE 1 OF THE ASSESSMENT ORDER. THUS, TOTAL TEN DAYS TIME WAS ALLOWED FROM THE DATE OF ISSUE OF THE NOTICE. IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAS NOT MENTIONED THE DATE OF WHICH SUCH NOTICE WAS SERVED UPON THE ASSESSEE. THEREFORE, IN OUR OPINION, THE TIME OF LESS THAN TEN DAYS ALLOWED BY THE ASSESSING OFFICER FOR COMPLYING WITH THE DETAILS QUESTIONNAIRE CANNOT BE SAID TO BE A SUFFICIENT TIME BEING ALLOWED TO THE ASSESSEE AND , THEREFORE, FAILURE OF THE ASSESSEE TO COMPLY WITH SUCH NOTICE CANNOT BE SAID TO BE A DEFAULT WHICH MAY JUSTIFY THE LEVY OF PENALTY UNDER SECTION 271(1)(B) OF THE ACT. ACCORDINGLY, THE SAME IS CANCELLED. 14 . THEREFORE IN VIEW OF THE DECISION OF THE TRI BUNAL ON SIMILAR MATTER , WE RESPECTFULLY CONCUR AND ARE ALSO OF THE VIEW THAT THE TIME LESS THAN 10 DAYS GRANTED TO THE ASSESSEE WAS NOT SUFFICIENT FOR ANSWERING THE DETAIL ED QUESTIONNAIRE FOR THE ASSESSMENT YEAR 2003 - 04 TO 2009 - 10 AND THEREFORE, FAILURE OF THE ASSESSEE TO COMPLY WITH SUCH NOTICE CANNOT BE SAID TO BE A DEFA ULT WHICH MAY JUSTIFY THE LEVY OF PAGE NO. 8 PENALTY U/S 271(1)(B) OF THE ACT . THEREFORE, WE SET ASIDE THE ORDER OF THE LD CIT(A) AND DELETE THE SAID PENALTY. 15 . IN VIEW O F THE ABOVE THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 3 1 . 01 . 2014 . - S D / - - S D / - ( SHAMIM YAHYA ) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 3 1 / 01 / 2014 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI