Smt Sarita Devi Goyal, New Delhi V. Deputy Commissioner of Income-tax, New Delhi

ITA 4492/DEL/2015

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5685 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: 2005-2006
• Appeal Filed On: 08-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEPT SHRI KAUSHALENDRA TEWARI
• Assessee Lawyers: LALIT KUMAR
• Keywords: Principle of natural justice; Reasonable cause
• Section: 273B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES G: NEW DELHI BEFORE SHRI R.K.PANDA, ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE, JUDICIAL MEMBER ITA NO. 4492/DEL/2015 ASSESSMENT YEAR 2005-06 ITA NO. 4494/DEL/2015 ASSESSMENT YEAR 2007-08 ITA NO. 4495/DEL/2015 ASSESSMENT YEAR 2008-09 SMT. SARITA DEVI GOYAL FLAT NO.4 R.R. APARTMENTS 3-4 MANGLAPURI MEHRAULI NEW DELHI 110 030 AEIPG8122K VS. DCIT, CC - 14 NEW DELHI (APPELLANT) (RESPONDENT) FOR ASSESSEE : SH. PIYUSH KUMAR KAMAL, ADV. AND SH.LALIT KUMAR, ADV. FOR DEPT. : SHRI KAUSHALENDRA TEWARI, SR.D.R. DATE OF HEARING : 21.06.2018 DATE OF PRONOUNCEMENT : 22.06.2018 ORDER PER BENCH THESE APPEALS ARE FILED BY THE ASSESSEE AGAINST THE ORDER DATED 08.05.2015 PASSED BY THE CIT(A)-XXVI, NEW DELHI FOR THE A.YS. 2005-06. 2007-08 AND 2008-09. ITA 4492/DEL/2015 A.Y.:2005-06 4494/DEL/15 AY: 2007-08 4495/DEL/15 AY 2008-09 SMT.SARITA DEVIGOYAL VS. DCIT 2 2. SINCE THE GROUNDS OF APPEAL IN ALL THE THREE MATTERS ARE SIMILAR, FOR REFERENCE WE ARE TAKING GROUNDS OF APPEAL FOR A.Y. 2005-06. THE GROUNDS OF APPEAL ARE AS UNDER: 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)- XXVI, NEW DELHI HAS ERRED BOTH IN LAW AND ON FACTS IN UPHOLDING THE LEVY OF PENALTY OF RS. 20,000/- U/S 271(L)(B) OF THE ACT. 2. THAT WHILE UPHOLDING THE LEVY OF PENALTY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED TO APPRECIATE THAT ORDER LEVYING PENALTY WAS BASED ON FINDINGS CONTRARY TO THE ORDER OF ASSESSMENT AND, OVERLOOKING THE REPLY FURNISHED BY THE APPELLANT DURING THE PENALTY PROCEEDINGS AND, THEREFORE UNTENABLE IN LAW. 2.1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ALSO FAILED TO APPRECIATE THAT THERE WAS REASONABLE CAUSE ON THE PART OF THE APPELLANT AND, AS SUCH PENALTY SUSTAINED IS ILLEGAL, INVALID AND UNTENABLE. 2.2. THAT ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS OTHERWISE ALSO BASED ON FACTUAL MISAPPRECIATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND, COMPLETE MISINTERPRETATION OF THE PROVISIONS CONTAINED IN SECTION 271(L)(B) OF THE ACT. 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS OTHERWISE TOO CONFIRMED THE PENALTY WITHOUT PROVIDING FAIR, REASONABLE AND MEANINGFUL OPPORTUNITY AND AS SUCH ORDER PASSED IS CONTRARY TO THE PRINCIPLES OF NATURAL JUSTICE AND, THEREFORE A NULLITY. IT IS THEREFORE PRAYED THAT THE PENALTY-LEVIED U/S 271(L)(B) OF THE ACT OF RS. 20,000/- AND UPHELD BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) BE DELETED AND, APPEAL OF THE APPELLANT BE ALLOWED. ITA 4492/DEL/2015 A.Y.:2005-06 4494/DEL/15 AY: 2007-08 4495/DEL/15 AY 2008-09 SMT.SARITA DEVIGOYAL VS. DCIT 3 3. THE PENALTY U/S 271(L)(B) OF THE INCOME TAX ACT, 1961 WAS IMPOSED BY THE ASSESSING OFFICER AS THE ASSESSEE FAILED TO COMPLY WITH THE STATUTORY NOTICES FOR HEARING. IN RESPONSE TO THE NOTICES DATED 21.3.2013 REQUIRING THE ASSESSEE TO SHOW CAUSE AS TO WHY PENALTY SHOULD NOT BE LEVIED FOR THE FAILURE TO COMPLY WITH THE STATUTORY NOTICES, THE ASSESSEE FILED LETTER IN THE OFFICE OF THE ASSESSING OFFICER ON 22.7.2013 STATING THAT THE NON-COMPLIANCE WAS UNINTENTIONAL AND FOR REASONS BEYOND HER CONTROL. THE ASSESSING OFFICER NOTED THAT THE PENALTY PROCEEDINGS WERE KEPT IN ABEYANCE SINCE THE HONBLE DELHI HIGH COURT HAD PASSED AN INTERIM ORDER DATED 22.3.2013 DIRECTING THE REVENUE NOT TO TAKE ANY COERCIVE MEASURES TILL THE NEXT DATE OF HEARING. SINCE THE STAY BY THE INTERIM ORDER OF THE HONBLE HIGH COURT STOOD VACATED VIDE THE FINAL ORDER DATED 20.12.2013, THE ASSESSING OFFICER EXAMINED THE REPLY OF THE ASSESSEE AND AFTER ITS REJECTION PROCEEDED TO IMPOSE PENALTY OF RS.20,000/- U/S 271(L)(B) OF THE ACT FOR NON-COMPLIANCE OF THE STATUTORY NOTICES. 4. BEING AGGRIEVED BY THE PENALTY ORDER THE ASSESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) IN COMMON ORDER FOR A.Y. 2005-06, 2006-07, 2007-08 AND 2008-09 DISMISSED THE APPEAL OF THE ASSESSEE. 5. THE LD. AR SUBMITTED THAT FOR THE A.Y. 2006-07 THE PENALTY IN ASSESSEES OWN CASE HAS BEEN DELETED BY THE TRIBUNAL VIDE ORDER DATED 20.3.2018. THUS, THESE THREE MATTERS ARE ALSO ARISING FROM THE SAME ORDER OF THE CIT(A) WHICH WAS CHALLENGED. THEREFORE, THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE. ITA 4492/DEL/2015 A.Y.:2005-06 4494/DEL/15 AY: 2007-08 4495/DEL/15 AY 2008-09 SMT.SARITA DEVIGOYAL VS. DCIT 4 6. THE LD. DR RELIED UPON THE PENALTY ORDER AND THE ORDER OF THE CIT(A). THE LD. DR FURTHER SUBMITTED THAT EACH ASSESSMENT YEAR IS HAVING DIFFERENT FACTUAL ASPECTS. THEREFORE THE TRIBUNAL ORDER WILL NOT BE APPLICABLE IN THE PRESENT CASE. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED ALL THE RECORDS. THE ITAT IN ASSESSEES OWN CASE FOR A.Y. 2006-07 IN ITA NO.4493/DEL/2015 FOLLOWING THE DECISIONS OF THE CO-ORDINATE BENCHES HAS HELD THAT THE ASSESSEE WAS PREVENTED BY A REASONABLE CAUSE FROM COMPLYING WITH THE NOTICES ISSUED BY THE A.O. AND THUS DELETED THE PENALTY. THE RELEVANT PARAGRAPH OF THE ORDER IS AS UNDER: 4. WE HAVE PERUSED THE COPY OF THE ORDER DATED 6.11.2017 IN ITA NOS. 4518 TO 4521/DEL/2015 WHEREIN THERE WAS A REFERENCE TO THE ORDERS IN ITA NO. 4426 TO 4434/DEL/2015. LEARNED AR SUBMITTED THAT THERE ARE MANY MORE APPEALS INVOLVING THE SIMILAR FACTS WITH SIMILAR DELETION OF THE PENALTY. IN ITA NOS. 4518 TO 4521/DEL/2015 VIDE PARAGRAPH NOS. 3 & 4, A COORDINATE BENCH OF THIS TRIBUNAL HELD THAT:- 3. AT THE OUTSET, IT IS SUBMITTED BY THE LD. AR THAT IN A NUMBER OF CASES RELATING TO THE COMPANIES OF MDLR GROUP, AUTHORITIES LEVIED PENALTY U/S 271(1)(B) OF THE ACT BUT AFTER CONSIDERING THE PLEA OF THE ASSESSEE ON FACTS, THE TRIBUNAL FOUND THAT THE DETENTION OF SH. GOPAL GOYAL WHO WAS ENTRUSTED WITH THE INCOME TAX MATTERS AND WAS LOOKING AFTER THE ENTIRE WORKING OF THE GROUP IN JUDICIAL CUSTODY, INITIATION OF ABOUT 300 GROUP ASSESSMENTS IN THE WAY OF SEARCH PROCEEDINGS, POOR TURN OUT OF THE EMPLOYEES RESULTING IN THE DELAYED COMPLIANCE BEING MADE THROUGH POST DO CONSTITUTE REASONABLE CAUSE FALLING WITHIN THE SCOPE AND AMBIT OF SECTION 273B OF THE ACT AND ON THAT GROUND, THE TRIBUNAL DELETED THE PENALTY. COPIES OF THE ORDERS DATED 28.8.2017 ITA 4492/DEL/2015 A.Y.:2005-06 4494/DEL/15 AY: 2007-08 4495/DEL/15 AY 2008-09 SMT.SARITA DEVIGOYAL VS. DCIT 5 AND 29.8.2017 IN ITA NOS. 4426/DEL/2015 ARE FILED. LD. DR PLACED RELIANCE ON THE ORDERS OF AUTHORITIES BELOW. 4. WE HAVE CAREFULLY GONE THROUGH THE RECORD AND THE ORDERS FILED BY THE LD. AR AND FOUND THAT UNDER SIMILAR CIRCUMSTANCES, A CO-ORDINATE BENCH OF THIS TRIBUNAL CONSIDERED THE FACTS PLEADED BY THE ASSESSEE AT LENGTH AND HELD THAT THE REASONS PLEADED BY THE ASSESSEE, WHICH ARE SIMILARLY PLEADED NOW, CONSTITUTE REASONABLE CAUSE WITHIN THE MEANING OF SECTION 273B OF THE ACT AND DELETED THE PENALTY LEVIED AGAINST THE ASSESSEE. WHILE RESPECTFULLY FOLLOWING THE SAME, WE HOLD THAT THE ASSESSEE WAS PREVENTED BY REASONABLE CAUSE FROM COMPLIANCE WITH THE NOTICE, AND ON THAT GROUND WE DELETE THE PENALTY LEVIED U/S 271(L)(B) OF THE ACT' . 5. IN VIEW OF THE FACT THAT IN ALL THESE MATTERS INCLUDING THE APPEALS NOW UNDER CONSIDERATION, THE SIMILAR FACTS ARE INVOLVED RAISING THE QUESTION OF THE SUSTAINABILITY OF THE PENALTY U/S 271(L)(B) OF THE ACT IN THE FACTS AND CIRCUMSTANCES PLEADED BY THE TAX PAYERS. INASMUCH AS THERE IS NO CHANGE IN THE FACTS AND CIRCUMSTANCES, WE DO NOT FIND ANY COMPELLING REASON TO DEVIATE FROM THE VIEW TAKEN BY DIFFERENT COORDINATE BENCHES OF THIS TRIBUNAL WHILE DELETING THE PENALTY HOLDING THAT THE UNCONTROVERTED FACTS PLEADED BY THE ASSESSEES DO CONSTITUTE SUFFICIENT REASON OR REASONABLE CAUSE WITHIN THE AMBIT OF SECTION 273B OF THE ACT. WITH THIS VIEW OF THE MATTER, WHILE RESPECTFULLY FOLLOWING THE DECISIONS OF THE COORDINATE BENCHES, WE HOLD THAT THE ASSESSEE WAS PREVENTED BY REASONABLE CAUSE FROM COMPLYING WITH THE NOTICE ISSUED BY THE AO. WHILE HOLDING SO, WE DELETE THE PENALTY LEVIED U/S 271(L)(B) OF THE ACT. 6. IN THE RESULT, APPEALS OF THE ASSESSEES ARE ALLOWED. IN LIGHT OF THE ORDER IN ASSESSEES OWN CASE PASSED BY THE TRIBUNAL, THE ISSUE IS SQUARELY COVERED IN ALL THE THREE ITA 4492/DEL/2015 A.Y.:2005-06 4494/DEL/15 AY: 2007-08 4495/DEL/15 AY 2008-09 SMT.SARITA DEVIGOYAL VS. DCIT 6 ASSESSMENT YEARS IN FAVOUR OF THE ASSESSEE. THEREFORE ALL THE THREE APPEALS OF THE ASSESSEE ARE ALLOWED. 6. IN THE RESULT, ALL THE THREE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND JUNE, 2018. SD/- SD/- (R.K. PANDA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DT. 22 ND JUNE, 2018 MANGA COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT - TRUE COPY - BY ORDER, ASSISTANT REGISTRAR ITAT DELHI BENCHES ITA 4492/DEL/2015 A.Y.:2005-06 4494/DEL/15 AY: 2007-08 4495/DEL/15 AY 2008-09 SMT.SARITA DEVIGOYAL VS. DCIT 7 DATE OF DICTATION 21.06.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 21.06.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 22.06.2018 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS 22.06.2018 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 22.06.2018 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 25.06.2018 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER