Harish Kumar, Delhi V. ITO, New Delhi

ITA 4599/DEL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2874 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 29-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 142(1); 144

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SH. K. N. CHARY , JM ITA NO. 4599 /DEL/2016 : ASSTT. YEAR : 2007 - 08 MR. HARISH KUMAR, 621, HAMILTON ROAD, KASHMIRI GAT E, DELHI - 110006 VS INCOME TAX OFFICER, WARD - 2 6(3 ), NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A AUPK8812A ASSESSEE BY : NONE REVENUE BY : SH. ARUN KUMAR YADAV , SR. DR DATE OF HEARING : 14 .12 .201 7 DATE OF PRONOUNCE MENT : 18 .12 .201 7 ORDER PER N. K. SAINI, AM : THIS IS AN APPEAL BY THE ASS ESSEE AGAINST THE ORDER DATED 27.05 .2016 OF LD. CIT(A ) - 12 , NEW DELHI . 2. THE ONLY EFFECTIVE GROUND RAISED IN THIS AP PEAL READS AS UNDER: 1. THAT THE LD. CIT(A) HAS ERRED BOTH IN LAW AND FACTS OF THE CASE IN CONFIRMING THE PENALTY WITHOUT APPRECIATING THE FACTS THAT NO NOTICE WAS SERVED WITHOUT MAKING PROPER ENQUIRY. 3 . THE ONLY GRIEVANCE OF THE ASSESSEE IN THIS APPEA L RELATES TO THE SUSTENANCE OF PENALTY OF RS.10,000/ - LEVIED BY ITA NO . 4599 /DE L/2016 HARISH KUMAR 2 THE AO U/S 271(1)(B) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 4 . FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSMENT IN THIS CASE WAS COMPLETED U/S 144 OF THE ACT BY DETERMINING THE INCOME OF THE ASSESSEE AT RS.5,00,000/ - AS AGAINST RETURNED INCOME OF RS.2,97,576/ - . DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO ISSUED NOTICE DATED 01.12.2009 U/S 142(1) OF THE ACT TO THE ASSESSEE AND DATE OF HEARING WAS FIXED ON 1 8.12.2009 , ON THE SAID DATE NONE ATTENDED AND THE ASSESSMENT WAS FRAMED EX - PARTE U/S 144 OF THE ACT ON 29.12.2009. THE AO LEVIED THE PENALTY OF RS.10,000/ - U/S 271(1)(B) OF THE ACT FOR NON - COMPLIANCE OF THE NOTICE DATED 01.12.2009 ISSUED U/S 142(1) OF THE ACT. 5 . BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND SUBMITTED THAT NO NOTICE WAS SERVED UPON HIM. IT WAS ALSO POINTED OUT THAT THE NOTICE WAS SENT AT 521, HAMILTON ROAD, KASHMERE GATE, DELHI - 6 INSTEAD OF 621, HAMILTON ROAD, KAS HMERE GATE, DELHI - 6 AND THAT NO NOTICE WAS EVER RECEIVED OR SERVED UPON THE ASSESSEE. HOWEVER, THE LD. CIT(A) DID NOT FIND MERIT IN THE SUBMISSION OF THE ASSESSEE AND SUSTAINED THE PENALTY BY OBSERVING IN PARA 9.3 OF THE IMPUGNED ORDER AS UNDER: ITA NO . 4599 /DE L/2016 HARISH KUMAR 3 9.3 FROM PE RUSAL OF PENALTY ORDER U/S 271(1 )(B), IT IS SEEN THAT NOTICE FOR INITIATION OF PENALTY U/S 271(1 )(B) WAS ISSUED AT THE/ADDRESS 521, HAMILTON ROAD, KASHMERE GATE, DELHI - 110006 AND IT IS ALSO/SEEN THAT COUNSEL OF THE APPELLANT VIDE LETTER DATED 04.05.2010 HAD SUBMITTED THAT PENALTY PROCEEDINGS BE KEPT IN ABEYANCE. THEREFORE, IT IS APPARENT THAT THE ADDRESS OF APPELLANT AT 521, HAMILTON ROAD, KASHMERE GATE, DELHI WAS CORRECT AND APPELLANT HAD ALSO RECEIVED THE NOTICE AND, THEREFORE, APPELLANT HAS NO BASIS TO CLAIM THAT NOTICES WERE NOT RECEIVED BY HIM. FURTHER, IT IS SEEN THAT ADDRESS GIVEN ON PAGE 1 OF FORM NO. 3CD BY THE AUDITOR WAS 521, HAMILTON ROAD, KASHMERE GATE, DELHI - 06. THEREFORE, THERE IS NO BASIS IN THE CLAIM OF APPELLANT. ACCORDINGLY, ASSESSING (O FFICER HAS COR RECTLY IMPOSED PENALTY U/S 271(1 )(B), AS THERE WAS NO COMPLIANCE BY THE APPELLANT AND THEREFORE, PENALTY OF RS.10,000/ - U/S 271( 1)(B ) IS SUSTAINED. 6 . NOW THE ASSESSEE IS IN APPEAL. NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE. WE HAVE CO NSIDERED THE SUBMISSIONS OF THE LD. DR WHO SUPPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A). 7. IN THE PRESENT CASE, IT IS NOTICED THAT THE CLAIM OF THE ASSESSEE WAS THAT NO NOTICE WAS ISSUED AT HIS ADDRESS I.E. 621, HAMILTON ROAD, KASHMERE GATE, DE LHI - 6. THE ABOVE FACTS APPEARS TO BE CORRECT BECAUSE THE ASSESSMENT ORDER HAS BEEN FRAMED AT 521, HAMILTON ROAD, KASHMERE GATE, DELHI - ITA NO . 4599 /DE L/2016 HARISH KUMAR 4 6 AND IN THE FORM NO. 35, THE ADDRESS GIVEN BY THE ASSESSEE IS 621, HAMILTON ROAD, KASHMERE GATE, DELHI - 6. IN THE PRESENT CASE, NOTHING IS BROUGHT ON RECORD TO SUBSTANTIATE THAT THE NOTICE U/S 142(1) OF THE ACT WAS SERVED UPON THE ASSESSEE AT THE CORRECT ADDRESS OF THE ASSESSEE. WE, THEREFORE, BY CONSIDERING THE TOTALITY OF THE FACTS, DELETE THE PENALTY SUSTAINED BY THE LD. C IT(A) WHICH WAS LEVIED BY THE AO U/S 271(1)(B) OF THE ACT. 8 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED . ( ORDER PRON OUNCED IN THE COURT ON 18 /12 / 2017 ) SD/ - SD/ - (K. N. CHARY ) (N. K. SAINI) JUDIC IAL MEMBER ACCOUNTANT MEMBER DATED: 18 /12 /2017 *SUBODH* COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR