M/s. Acme Auto Pvt. Ltd., New Delhi V. ACIT, New Delhi

ITA 4617/DEL/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 7369 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 14-12-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 05-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVI JAIN
• Assessee Lawyers: ABHISHEK ANAND; RAKESH GUPTA TARUN KUMAR
• Keywords: Reasonable cause
• Section: 273B; 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A : NEW DELHI) BEFORE SHRI J.S. REDDY, ACCOUNTANT MEMBER AND SHRI A.T. VARKEY, JUDICIAL MEMBER ITA NOS.4611 TO 4617/DEL./2013 (ASSESSMENT YEARS : 2004-05 TO 2010-11) M/S. ACME AUTO (P) LIMITED, VS. ACIT, CENTRAL CI RCLE IX, 305, AGGARWAL ARCADE, PLOT NO.6, NEW DELHI. SECTOR 12, DWARKA, NEW DELHI 110 078. (PAN : AACCA4888R) (APPELLANT) (RESPONDENT) ASSESSEE BY : S/SHRI RAKESH GUPTA, TARUN KUMAR AND ABHISHEK ANAND, ADVOCATE REVENUE BY : SHRI RAVI JAIN, CIT DR O R D E R PER A.T. VARKEY, JUDICIAL MEMBER : THESE APPEALS FILED BY THE ASSESSEE AGAINST THE CO MMON ORDER OF THE CIT (A)-XXXII, NEW DELHI DATED 28.05.2013 CONFIRMING TH E PENALTY IMPOSED OF RS.10,000/- FOR ALLEGED DEFAULT COMMITTED BY THE AS SESSEE ON 31.10.2011 UNDER SECTION 271(1)(B) OF THE INCOME-TAX ACT, 1961 (HERE INAFTER THE ACT). 2. THE AO HAS IMPOSED PENALTY U/S 271(1)(B) OF THE ACT FOR THE ASSESSEE NOT APPEARING BEFORE HIM ON TWO DAYS I.E. 24.10.2011 AN D 31.10.2011 OF RS.10,000/- FOR EACH ABSENCE AND THUS FOR TWO ABSEN CE BEFORE HIM I.E. RS.20,000/-. THE LD. CIT (A) HAS DELETED RS.10,000 /- AFTER TAKING NOTE OF THE 2 ITA NO.4611 TO 4617/DEL/2013 FACT THAT ON 24.10.2011, THE ASSESSEE HAD FILED THE ADJOURNMENT APPLICATION BEFORE THE AO, SO HE DELETED RS.10,000/-. HOWEVER, HE CONFIRMED PENALTY OF RS.10,000/- IMPOSED FOR THE DEFAULT FOR NOT APPEARI NG BEFORE THE AO ON 31.10.2011. LD. AR FOR THE ASSESSEE TOOK OUR ATTEN TION TO PAGE 8 OF THE PAPER BOOK, WHICH IS THE ADJOURNMENT APPLICATION FOR THE SAID DATE I.E. 31.10.2011 WHICH WE TAKE NOTE THAT HAS BEEN DULY ENDORSED BY T HE DEPARTMENT WITH DATE STAMP ENDORSING THE DATE 31.10.2011 ON WHICH DATE T HE ADJOURNMENT APPLICATION HAS BEEN FILED BEFORE THE AO. THE LD. AR TOOK OUR ATTENTION TO THE NOTING MADE BY THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE ON THE ADJOURNMENT APPLICATION I.E. AO IS ON LEAVE, SO NO ADJOURNMENT. HOWEVER, THE LD. CIT (A) WHILE REFUSING TO DELETE PENALTY FOR FAILURE OF THE ASSESSEE TO COMPLY WITH THE NOTICE U/S 142(1) OF THE ACT HAS REASONED THAT THE ASSESSEE COULD NOT PROVE THAT THE AO WAS ON LEAVE ON THAT PARTICULAR DATE, THEREF ORE, HE CONFIRMED THE PENALTY. NOW, THE ASSESSEE IS BEFORE US AGAINST THE IMPUGNED ORDER FOR ASSESSMENT YEARS 2004-05 TO 2010-11. LD. AR FURTHER SUBMITTED THAT THE GROUP CFO & AUTHORIZED REPRESENTATIVE, SHRI RAM AVTAR AGARWAL H AS SIGNED THE ADJOURNMENT APPLICATION AND ON THAT AN ENDORSEMENT IS WRITTEN TO THE EFFECT, AO IS ON LEAVE NO ADJOURNMENT . 3. ON THE OTHER HAND, THE LD. DR HAS POINTED OUT TH AT THE PENALTY HAS BEEN IMPOSED ON 09.11.2011 AND THE ASSESSMENT ORDER HAS BEEN PASSED LATER ON 30.12.2011. THIS GOES ON TO SHOW THAT THE AO GOT F ED UP WITH THE ASSESSEE AS 3 ITA NO.4611 TO 4617/DEL/2013 HE WAS NOT COOPERATING WITH THE ASSESSMENT PROCEEDI NGS, SO THE AO HAD TO INITIATE 271(1)(B) PROCEEDINGS BEFORE THE ASSESSMEN T ORDER WAS PASSED TO BRING THE ASSESSEE ON LINE. ACCORDING TO HIM, AFTER THE PENALTY WAS IMPOSED, THEN ONLY THE ASSESSEE COOPERATED WHICH CLEARLY GOES ON TO SHOW THAT THE ASSESSEE WAS TRYING TO DELAY ITS PARTICIPATION IN THE ENTIRE ASSESSMENT PROCEEDINGS. THEREFORE, HE DOES NOT WANT US TO INTERFERE WITH TH E ORDER OF THE LD. CIT (A). 5. WE HAVE HEARD BOTH THE SIDES ON THE ISSUE AND PE RUSED THE MATERIAL. WE FIND THAT THE AO HAD ISSUED NOTICE U/S 142(1) OF TH E ACT TO THE ASSESSEE TO APPEAR ON 31.10.2011 BUT, ACCORDING TO THE ASSESSEE , THE GROUP CFO AND AR, SHRI RAM AVTAR AGARWAL HAD FILED AN ADJOURNMENT APP LICATION DATED 31.10.2011 SEEKING ADJOURNMENT FOR THAT DATE AND SOUGHT A WEEK S TIME, A COPY OF WHICH IS SEEN PLACED AT PAGE 8 OF THE PAPER BOOK WITH ENDORS EMENT OF THE DEPARTMENT EVIDENCING THAT IT HAD RECEIVED IT AND DULY DATE ST AMPED THAT OF 31.10.2011. THE LD. DR COULD NOT CONTROVERT THE FACT AS TO WHETHER THE DATE STAMP AFFIXED ON THE ADJOURNMENT APPLICATION IS NOT OF THAT OFFICE OF TH E INCOME-TAX DEPARTMENT, TO BE MORE PRECISE THE VERACITY OF THE ADJOURNMENT APP LICATION FILED AND AS TO WHETHER IT IS STAMPED IN THE OFFICE OF THE ASSISTAN T COMMISSIONER, CC-IX, NEW DELHI COULD NOT BE CONTROVERTED BEFORE US. IT SHOU LD BE REMEMBERED THAT FOR NON-COMPLIANCE OF SECTION 271(1)(B) NOTICE DOES NOT MANDATE PENALTY UNLESS THE ASSESSEE DELIBERATELY ADOPTS DELAY TACTICS. AS PER SECTION 273B UNDER THE HEADING PENALTY NOT TO BE IMPOSED IN CERTAIN CASES , WHICH IS AN OVERRIDING 4 ITA NO.4611 TO 4617/DEL/2013 SECTION AND SHOULD BE CONSIDERED THE APPLICABILITY OF THE SAID SECTION WHEN PENALTY IS LEVIED UNDER SECTION 271(1)(B). AS PER CLAUSE (B) OF SUB-SECTION (1) OF SECTION 271, PENALTY IS NOT IMPOSABLE FOR ANY FAILU RE REFERRED TO IN THE SAID PROVISION, IF THE ASSESSEE IS ABLE TO PROVE THAT TH ERE WAS REASONABLE CAUSE FOR THE SAID FAILURE. HERE, WE FIND THE AUTHORIZED REPRESE NTATIVE, SHRI RAM AVTAR AGARWAL HAS DULY APPLIED FOR ADJOURNMENT ON THAT DA Y (I.E. 31.10.2011) WHEN THE CASE WAS FIXED FOR HEARING AND SOUGHT ADJOURNME NT FOR A WEEKS TIME. SINCE THE GENUINENESS OF THE SAID APPLICATION BEFORE US I S NOT CONTROVERTED, WE ARE OF THE CONSIDERED OPINION THAT PENALTY IS NOT WARRANTE D. MOREOVER, WE FIND THAT THE ASSESSEE HAD LATER ON COOPERATED AND ASSESSMENT ORD ER HAS BEEN PASSED ON 30.12.2011. THEREFORE, WE DIRECT DELETION OF THE P ENALTY OF RS.10,000/- IN ALL THE ASSESSMENT YEARS WHICH ARE BEFORE US. WE ORDER ACCORDINGLY. 6. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE A RE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THIS DAY OF 1 5 TH JANUARY, 2015. SD/- SD/- (J.S. REDDY) (A.T.VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 15 TH DAY OF JANUARY, 2016 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XXXII, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.