Andarsul Urban Co-op. Bank Ltd., Nashik V. Deputy Commissioner of Income-tax,

ITA 46/PUN/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1575 (ITAT-PUNE)
• Duration Of Justice: 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-07-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 12-07-2016
• Assessment Year: 2012-2013
• Appeal Filed On: 11-01-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANIL CHAWARE
• Section: 143(3); 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , . . , BEFORE MS. SUSHMA CHOWLA , JM AND SHRI R.K. PANDA , AM ITA NO S . 46, 1318 & 1319 /PN/201 6 ASSESSMENT YEAR : 2012 - 13 ANDARSUL URBAN CO - OP. BANK LTD., AT POST ANDARSUL, TALUKA YEOLA, DIST. NASHIK 422 203. . APPELLANT PAN : AAAAA2015N VS. THE DY. COMMISSIONER OF INCOME TAX, CIRCLE 3, MALEGAON. . RESPONDENT / APPELLANT BY : WRITTEN SUBMISSIONS / DEPARTMENT BY : SHRI ANIL CHAWARE / / / DATE OF HEARING : 12 .0 7 .201 6 / DATE OF PRONOUNCEMENT: 14 . 0 7 .201 6 / ORDER PER SUSHMA CHOWLA, JM : THIS BUNCH OF THREE APPEALS FILED BY THE ASSESSEE ARE AGAINST THE SEPARATE ORDER S OF CIT(A) - 1 , NASHIK , ALL DATED 02.11.2015 RELATING TO ASSESSMENT YEAR 2012 - 13 AGAINST PENALTY LEVIED UNDER SECTION 271(1)(B) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. ALL THE CAPTIONED APPEALS RELAT ING TO THE SAME ASSESSEE ON IDENTICAL ISSUE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE 2 ITA NOS.46, 1318 & 1319/PN/2016 SAKE OF CONVENIENCE. REFERENCE IS BEING MADE TO THE FACTS AND ISSUES IN ITA NO. 46 /PN/20 1 6 RELATING TO ASSESSMENT YEAR 2012 - 13 TO ADJUDICATE THE ISSUE. 3. THE ASSESSEE IN ITA NO. 46 /PN/201 6 HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. ON THE BASIS OF FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND AS PER LAW, THE COMMISSIONER OF INCOME TA X, (APPEALS) - I, NASHIK IS NOT JUSTIFIED IN CONFIRMING THE PENALTY OF RS.10,000/ - U/S. 271(1)(B) OF THE ACT. 2. THE APPELLANT CRAVES FOR ADDITION TO, DELETION, ALTERATION, MODIFICATION , CHANGE ANY OF THE GROUNDS CONFIRMING THE ABOVE MENTIONED PENALTY. 4 . DESPITE SERVICE OF NOTICE, NONE APPEARED ON BEHALF OF THE ASSESSEE. HOWEVER, WRITTEN SUBMISSIONS ARE FILED, WHICH ARE TAKEN ON RECORD AND AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE, THE ISSUE RAISED IN THE PRESENT APPEALS IS AD JUDICATED. 5. THE ONLY ISSUE ARISING IN THE PRESENT APPEAL IS AGAINST LEVY OF PENALTY UNDER SECTION 271(1)(B) OF THE ACT. SECTION 271(1)(B) OF THE ACT. 6. BRIEFLY, IN THE FACTS OF THE CASE, THE ASSESSMENT OF ASSESSEE WAS SELECTED FOR SCRUTINY. THE ASSESSING OFFICER ISSUED THE NOTICE DATED 06.08.2013 UNDER SECTION 143(2) OF THE ACT FOR APPEARANCE ON 26.08.2013. THE ASSESSEE FAILED TO COMPLY WITH THE SAID NOTICE AND HENCE, THE ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS UNDER SECTION 271(1)(B) OF THE ACT AND IMPOSED PENALTY AT RS. 10,000/ - . 7. BEFORE THE CIT(A), THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT COMPLIANCE TO THE NOTICES ISSUED UNDER SECTION 142(1) OF THE ACT WERE MADE ON 23.12.2014 AND ON 29.12.2014. FURTHER, COMPLIANCES WERE MADE IN THE MONT HS OF JANUARY AND FEBRUARY, 2015 AND SINCE THE ASSESSEE HAS COOPERATED IN THE ASSESSMENT, WHERE THE SAID ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF THE ACT WITHOUT ANY WHISPER OF ANY NON - COMPLIANCE BY THE ASSESSEE. THE 3 ITA NOS.46, 1318 & 1319/PN/2016 ASSESSEE FURTHER CLAIMED THAT HE WAS SITUATED I N A VERY REMOTE PLACE AND DOES NOT HAVE SUFFICIENT INFRASTRUCTURE OR STAFF TO FORMALLY REPRESENT THE CASE. SINCE THERE WAS TOTAL COMPLIANCE, THE ASSESSEE PLEADED THAT THERE WAS NO MERIT IN LEVY OF PENALTY UNDER SECTION 271(1)(B) OF THE AC T. HE FURTHER POINTED OUT THAT BECAUSE OF AUDIT WORK, THERE WAS DEFAULT IN APPEARANCE BEFORE THE ASSESSING OFFICER. THE CIT(A) NOTED THAT ALTOGETHER THREE NOTICES WERE ISSUED AND IN RESPONSE TO NONE OF THE NOTICES COMPLIANCE WAS MADE AND IN VIEW THEREOF, PENALTY LEVIED UNDER SECTION 271(1)(B) OF THE ACT WAS UPHELD BY THE CIT(A). 8. FURTHER, THE ASSESSING OFFICER HAD ISSUED NOTICE UNDER SECTION 142(1) OF THE ACT ON 15.07.2014 AND SINCE THE ASSESSEE DID NOT COMPLY WITH THE SAID NOTICE, THE ASSESSING OFFI CER LEVIED PENALTY UNDER SECTION 271(1)(B) OF THE ACT FOR THE SAID DEFAULT AND IMPOSED PENALTY OF RS.10,000/ - . THE CIT(A) UPHELD THE SAID PENALTY AND THE ASSESSEE HAS FILED AN APPEAL BEING ITA NO.1318/PN/2016. FURTHER, FOR DEFAULT OF NON - APPEARANCE BEFOR E THE ASSESSING OFFICER IN REPLY TO NOTICE UNDER SECTION 142(1) OF THE ACT , WHICH WAS ISSUED ON 02.04.2014, THE ASSESSING OFFICER HELD THE ASSESSEE TO BE IN DEFAULT AND LEVIED PENALTY UNDER SECTION 271 (1)(B) OF THE ACT AT RS.10,000/ - , WHICH WAS UPHELD BY T HE CIT(A). THE ASSESSEE IS IN APPEAL AGAINST THE SAID ORDER OF CIT(A) VIDE ITA NO.1319/PN/2016. 9 . THE ASSESSEE HAS FURNISHED WRITTEN SUBMISSIONS AND HAS POINTED OUT THAT PENALTY UNDER SECTION 271(1)(B) OF THE ACT HAS BEEN LEVIED ON ACCOUNT OF THREE DEFA ULTS; ONE FOR NON - COMPLIANCE OF NOTICE ISSUED UNDER SECTION 143(2) OF THE ACT FOR APPEARANCE ON 26.08.2013, THE OTHER TWO ON ACCOUNT OF NO N - COMPLIANCE OF NOTICES ISSUED UNDER SECTION 142(1) OF THE ACT FOR APPEARANCE ON 29.04.2014 AND ON 25.07.2014. THE PL EA OF THE ASSESSEE WAS THAT THE DEFAULT IN NON - APPEARANCE WAS NOT DELIBERATE NOR IN DEFIANCE OF LAW . THE ASSESSEE WAS BUSY IN STATUTORY AUDIT AS THE ASSESSEE WAS CONTROLLED BY THE RESERVE BANK OF INDIA AND ALSO CO - 4 ITA NOS.46, 1318 & 1319/PN/2016 OPERATIVE COMMISSIONER. FURTHER, THE ASS ESSEE CLAIMS THAT IT HAD COMPLIED WITH THE NOTICES THEREAFTER ISSUED AND HAD FILED COMPLETE DETAILS AND HENCE, NO MERIT IN LEVY OF PENALTY UNDER SECTION 271(1)(B) OF THE ACT. 10 . ON PERUSAL OF RECORD AND WRITTEN SUBMISSIONS FILED BY THE ASSESSEE, THE CASE OF THE ASSESSEE WAS PICKED UP FOR SCRUTINY BY THE ASSESSING OFFICER. THE FIRST NOTICE WAS ISSUED UNDER SECTION 143(2) OF THE ACT ON 06.08.2013 FOR COMPLIANCE ON 26.08.2013 . THE ASSESSEE BEFORE US CLAIMS THAT IT HAD APPEARED BEFORE THE ASSESSING OFFICER, BUT BECAUSE IT WAS FIRST NOTICE, ON SUCH DAY, NOTHING HAPPENED. THEREAFTER, THE ASSESSING OFFICER HA D ISSUED TWO NOTICES UNDER SECTION 142(1) OF THE ACT; ONE ON 02.04.2014 FOR COMPLIANCE ON 29.04.2014 AND SECOND ON 15.07.2014 FOR COMPLIANCE ON 25.07.2014 . THEREAFTER ALSO NOTICES WERE ISSUED TO THE ASSESSEE AND HE COMPLIED WITH AND APPEARED IN ASSESSMENT PROCEEDINGS IN THE MONTHS OF DECEMBER, 2014, JANUARY AND FEBRUARY, 2015 AND ASSESSMENT HAS BEEN COMPLETED UNDER SECTION 143(3) OF THE ACT. DURING THE CO URSE OF ASSESSMENT PROCEEDINGS, NO SUCH DEFAULT UNDER SECTION 271(1)(B) OF THE ACT WAS BROUGHT TO THE NOTICE OF ASSESSEE. THEREAFTER, THE ASSESSING OFFICER ISSUED SEPARATE NOTICES FOR LEVYING PENALTY UNDER SECTION 271(1)(B) OF THE ACT. UNDER THE PROVISIO NS OF THE SAID SECTION WHERE A PERSON HAS DEFAULTED TO COMPLY WITH THE NOTICE ISSUED UNDER SECTION 143(2) / 142(1) AND/OR FAILED TO FURNISH THE INFORMATION/DOCUMENTS SOUGHT FOR, THEN THE ASSESSING OFFICER MAY DIRECT THAT SUCH PERSON TO PAY BY WAY OF PENALT Y , A SUM OF RS.10,000/ - EACH FOR SUCH FAILURE. THE SAID PENALTY IS PAYABLE IN ADDITION TO TAX, IF A NY, PAYABLE BY THE SAID PERSON. IN THE FACTS OF THE PRESENT CASE, THOUGH THERE WAS INITIAL DEFAULT OF NON - APPEARANCE BEFORE THE ASSESSING OFFICER, ON LATER DATES, THE ASSESSEE APPEARED BEFORE THE ASSESSING OFFICER AND FURNISHED COMPLETE INFORMATION. HOWEVER, MERELY BECAUSE THE ASSESSEE HAS FURNISHED COMPLETE INFORMATION DOES NOT ABSOLVE THE ASSESSEE OF HIS DEFAULT IN NOT COMPLYING WITH VARIOUS NOTICES ISSUE D UNDER SECTION 142(1) / 143(2) OF THE ACT. THE ASSESSING 5 ITA NOS.46, 1318 & 1319/PN/2016 OFFICER HAS LEVIED PENALTY UNDER SECTION 271(1)(B) OF THE ACT AT RS.10,000/ - FOR EACH SUCH DEFAULT, TOTALING RS.30,000/ - . HOWEVER, WE ARE OF THE VIEW THAT IN THE FACTS AND CIRCUMSTANCES OF THE CAS E, ENDS OF JUSTICE WOULD BE MET BY RESTRICTING THE PENALTY TO ONLY RS.10,000/ - FOR SUCH DEFAULTS AND WE CONFIRM THE SAME. THUS, PENALTY IMPOSED AT RS.10,000/ - UNDER SECTION 271(1)(B) OF THE ACT IS UPHELD AND THE BALANCE PENALTY LEVIED UNDER SECTION 271(1) (B) OF THE ACT AT RS.10,000/ - EACH FOR TWO OTHER DEFAULTS IS DELETED. THUS, THE GROUND OF APPEAL RAISED BY THE ASSESSEE IN ITA NO.46/PN/2016 IS DISMISSED AND GROUND OF APPEAL RAISED IN ITA NOS.1318 & 1319/PN/2016 IS ALLOWED. 1 1 . IN THE RESULT, THE APPEAL OF ASSESSEE IN ITA NO.46/PN/2016 IS DISMISSED AND APPEALS OF ASSESSEE IN ITA NOS.1318 & 1319/PN/2016 ARE ALLOWED. ORDER PRONOUNCED ON THIS 14 TH DAY OF JULY , 201 6 . SD/ - SD/ - SD/ - SD/ - ( R.K. PANDA ) ( SUSHMA CHOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER PUNE ; DATED : 14 TH JULY , 201 6 . / GCVSR / COPY OF THE O RDER IS FORWARDED TO : 1 ) THE ASSESSEE; 2 ) THE DEPARTMENT; 3 ) THE CIT(A) - 1 , NASHIK; 4 ) THE PR. CIT - 1 , NASHIK ; 5 ) THE DR A BENCH, I.T.A.T., PUNE; 6 ) GUARD FILE. / BY ORDER , //TRUE COPY// / SR. PRIVATE SECRETARY , / ITAT, PUNE