M/s. Gobind Kanda & Sons HUF, Haryana V. DCIT, New Delhi

ITA 4528/DEL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2954 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 5 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: 2008-2009
• Appeal Filed On: 09-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARUN KUMAR YADAV SENIOR
• Assessee Lawyers: PIYUSH KUMAR KAMAL S

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH C CC C : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI G.D. AGRAWAL, G.D. AGRAWAL, G.D. AGRAWAL, G.D. AGRAWAL, PRESIDENT PRESIDENT PRESIDENT PRESIDENT AND AND AND AND MS. SUCHITRA KAMBLE MS. SUCHITRA KAMBLE MS. SUCHITRA KAMBLE MS. SUCHITRA KAMBLE, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER ITA ITAITA ITA NO NONO NO S SS S . .. . 4522 TO 4528/DEL/2015 4522 TO 4528/DEL/2015 4522 TO 4528/DEL/2015 4522 TO 4528/DEL/2015 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR S SS S : : : : 2002 2002 2002 2002 - -- - 03 TO 2008 03 TO 2008 03 TO 2008 03 TO 2008 - -- - 09 0909 09 M/S GOBIND KANDA & SONS M/S GOBIND KANDA & SONS M/S GOBIND KANDA & SONS M/S GOBIND KANDA & SONS HUF, HUF, HUF, HUF, H.NO.21, W H.NO.21, W H.NO.21, W H.NO.21, WARD NO.1, ARD NO.1, ARD NO.1, ARD NO.1, GALI KHAJANCHAIN, GALI KHAJANCHAIN, GALI KHAJANCHAIN, GALI KHAJANCHAIN, SIRSA, SIRSA, SIRSA, SIRSA, HARYANA HARYANA HARYANA HARYANA 125 055. 125 055. 125 055. 125 055. PAN : AADHG8888D. PAN : AADHG8888D. PAN : AADHG8888D. PAN : AADHG8888D. VS. VS. VS. VS. DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE- -- -15, 15, 15, 15, [CC [CC [CC [CC- -- -14, NEW DELHI], 14, NEW DELHI], 14, NEW DELHI], 14, NEW DELHI], NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI GAUTAM JAIN AND SHRI PIYUSH KUMAR KAMAL, ADVOCATES. RESPONDENT BY : SHRI ARUN KUMAR YADAV, SENIOR DR. DATE OF HEARING : 07.12.2017 07.12.2017 07.12.2017 07.12.2017 DATE OF PRONOUNCEMENT : 26.12.2017 26.12.2017 26.12.2017 26.12.2017 ORDER ORDER ORDER ORDER PER G.D. AGRAWAL, PER G.D. AGRAWAL, PER G.D. AGRAWAL, PER G.D. AGRAWAL, PRESIDENT PRESIDENT PRESIDENT PRESIDENT : :: :- -- - ALL THESE APPEALS BY THE ASSESSEE ARE AGAINST THE LEVY O F PENALTY AMOUNTING TO `20,000/- UNDER SECTION 271(1)(B) OF T HE INCOME-TAX ACT, 1961. 2. THE ASSESSEE HAS RAISED AS MANY AS FIVE GROUNDS. HOWEVE R, THEY ARE ALL AGAINST THE LEVY OF PENALTY U/S 271(1)(B ) OF THE ACT AMOUNTING TO `20,000/-. 3. AT THE TIME OF HEARING BEFORE US, IT IS STATED BY T HE LEARNED COUNSEL THAT THE ASSESSING OFFICER ISSUED NOTICE U/S 271(1 )(B) DATED ITA NOS.4522 TO 4528/D/2015 2 24 TH JUNE, 2013. HOWEVER, IN THE PENALTY NOTICE, THERE IS NO MENTION IN RESPECT OF ANY DEFAULT COMMITTED BY THE ASSESSEE. THUS, THE LEVY OF PENALTY ON THE BASIS OF SUCH PENALTY NOTICE IS VOID AND BAD IN LAW. HE ALSO REFERRED TO THE PENALTY ORDER AND POINTED OUT T HAT EVEN IN THE PENALTY ORDER, THE ASSESSING OFFICER HAS NOT MENTIONED W HICH PARTICULAR NOTICE WAS NOT ATTENDED BY THE ASSESSEE. TH ERE IS ONLY A GENERAL REMARK THAT DIFFERENT NOTICES ISSUED BY HIS OF FICE FROM TIME TO TIME REMAINED UNCOMPLIED WITH. THAT IN THE PENALTY PROCEEDINGS, UNLESS THE DEFAULT IS SPECIFIED, THE ASSESSEE CANNOT BE PE NALIZED IN RESPECT OF SUCH ALLEGED DEFAULT. HE ALSO STATED THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISIO N OF ITAT IN OTHER APPEALS OF THE SAME GROUP I.E., IN THE CASE OF M .M. BUILDCON PVT.LTD. VS. DCIT VIDE ITA NOS.4518 TO 4521/DEL/2015. 4. LEARNED SENIOR DR, ON THE OTHER HAND, RELIED UPO N THE ORDERS OF AUTHORITIES BELOW AND HE STATED THAT THE ASSESSEE IS A HA BITUAL DEFAULTER AND HAS MADE NO COMPLIANCE DURING THE ASSESSM ENT PROCEEDINGS WHICH RESULTED IN THE ASSESSMENT U/S 144. TH EREFORE, THE LEVY OF PENALTY U/S 271(1)(B) IS FULLY JUSTIFIED. HE ALSO STATED THAT THE MEAGER PENALTY OF `20,000/- IS LEVIED WHICH SHOULD BE SUSTAINED. 5. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF BOTH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. THE COPY OF THE PENALTY NOTICE IS PLACED AT PAGE 6 OF THE ASSESSEES PAPER BOOK, THE RELEVANT PORTION OF WHICH READS AS UNDER :- PLEASE REFER TO PENALTY PROCEEDINGS REFERRED TO ABO VE. IN THIS CONNECTION, YOU ARE HEREBY GIVEN AN OPPORTUNITY TO FILE YOUR EXPLANATION ALONGWITH EVIDENCE. YOUR CASE IS FI XED FOR HEARING ON 04/07/2013. ITA NOS.4522 TO 4528/D/2015 3 PLEASE NOTE IN CASE OF NON-COMPLIANCE, THE SAID PENAL TY PROCEEDINGS WILL BE DECIDED ON MERITS. 6. FROM THE ABOVE, IT IS EVIDENT THAT THE ASSESSING OFFI CER HAS NOT SPECIFIED THE DEFAULT I.E., THE SPECIFIC NOTICE WHICH , ACCORDING TO HIM, REMAINED UNCOMPLIED WITH BY THE ASSESSEE. THE RELEVAN T PORTION OF THE PENALTY ORDER READS AS UNDER :- 2. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE FAILED TO ATTEND THE PROCEEDINGS AS AND WHEN IT WAS REQUIRED THROUGH DIFFERENT NOTICES ISSUED BY THIS O FFICE FROM TIME TO TIME. WHATEVER THE SUBMISSION FILED BY T HE ASSESSEE WERE FILED IN DAK AND THE ASSESSEE PREFERRED IN NOT ATTENDING THE ASSESSMENT PROCEEDINGS BEFORE THE AO. ACCORDINGLY, PROCEEDINGS U/S 271(1)(B) OF THE ACT WER E INITIATED WHILE FINALIZING THE ASSESSMENT ON 21.03.2013 . AS PER THE NOTE SHEET FAILED TO ATTEND THE PROCEEDINGS AS WAS REQUIRED BY THIS OFFICE ON 30.11.2012 & 28.12.2012, AND WHATEVER REMAINING COMPLIANCE WAS MADE BY THE ASSESSEE WAS MADE THROUGH DAK. 7. THUS, EVEN IN THE PENALTY ORDER, THE OBSERVATION O F THE ASSESSING OFFICER IS GENERAL IN NATURE. IN OUR OPINION, BEFOR E THE PENALTY CAN BE LEVIED UPON THE ASSESSEE U/S 271(1)(B), IT IS ESSENTIAL ON THE PART OF THE ASSESSING OFFICER TO SPECIFY THE PARTICULAR NOTICE WHICH , ACCORDING TO THE ASSESSING OFFICER, REMAINED UNCOMPLIED WITH. THE A SSESSING OFFICER SHOULD CLEARLY MENTION THE DATE OF ISSUE OF N OTICE, THE DATE OF SERVICE OF THE NOTICE AND THE DATE ON WHICH OR BY WH ICH THE ASSESSEE WAS SUPPOSED TO COMPLY WITH THE SAID NOTICE. IN THE C ASE UNDER CONSIDERATION BEFORE US, NO SUCH PARTICULARS ARE GIVEN. ON THESE FACTS, WE ARE OF THE OPINION THAT THE PENALTY ORDER IS VAGU E AND THE SAME CANNOT BE SUSTAINED. WE ALSO OBSERVE THAT ON MERITS, UN DER SIMILAR CIRCUMSTANCES, THE ITAT HAS ALREADY CANCELLED THE PENA LTY IN THE CASE OF M.M. BUILDCON PVT.LTD. IN ITA NOS.4518 TO 4521/DE L/2015, ORDER DATED 6 TH NOVEMBER, 2017. IN VIEW OF THE ABOVE, WE DO NOT F IND IT A FIT ITA NOS.4522 TO 4528/D/2015 4 CASE FOR CONFIRMING THE PENALTY LEVIED U/S 271(1)(B) OF THE ACT. THE SAME IS CANCELLED IN THE CASE OF ALL THE ABOVE YEARS. 8. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALL OWED. DECISION PRONOUNCED IN THE OPEN COURT ON 26.12.2017. SD/- SD/- (SUCHITR (SUCHITR (SUCHITR (SUCHITR A KAMBLE A KAMBLE A KAMBLE A KAMBLE ) )) ) ( (( ( G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL ) )) ) JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER PRESIDENT PRESIDENT PRESIDENT PRESIDENT VK. COPY FORWARDED TO: - 1. APPELLANT : M/S GOBIND KANDA & SONS HUF, M/S GOBIND KANDA & SONS HUF, M/S GOBIND KANDA & SONS HUF, M/S GOBIND KANDA & SONS HUF, H.NO.21, WARD NO.1, GALI KHAJANCHAIN, H.NO.21, WARD NO.1, GALI KHAJANCHAIN, H.NO.21, WARD NO.1, GALI KHAJANCHAIN, H.NO.21, WARD NO.1, GALI KHAJANCHAIN, SIRSA, HARYANA SIRSA, HARYANA SIRSA, HARYANA SIRSA, HARYANA 125 055. 125 055. 125 055. 125 055. 2. RESPONDENT : DEP DEP DEP DEPUTY COMMISSIONER OF INCOME TAX, UTY COMMISSIONER OF INCOME TAX, UTY COMMISSIONER OF INCOME TAX, UTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE- -- -15, [CC 15, [CC 15, [CC 15, [CC- -- -14, NEW DELHI], 14, NEW DELHI], 14, NEW DELHI], 14, NEW DELHI], NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR