M/s Sanya Hospital and Diagnostic Pvt. Ltd., New Delhi V. DCIT, New Delhi

ITA 4661/DEL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74220 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2008-2009
• Appeal Filed On: 06-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATPAL SINGH
• Assessee Lawyers: A K SRIVASTAVA
• Section: 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G NEW DELHI) BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A. NO.4661 TO 4664/DEL/2013 ASSESSMENT YEAR : 2008-09 TO 2011-12 SANYA HOSPITAL & DIAGNOSTIC DCIT, PVT. LTD. D-13/1, DEFENCE COLONY, CENTRAL CIRCLE-2 1, NEW DELHI. V. NEW DELHI. PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO.AALCS AALCS AALCS AALCS- -- -5308 5308 5308 5308- -- -M MM M AND I.T.A. NO.4665 TO 4670/DEL/2013 ASSESSMENT YEAR : 2005-06 TO 2011-12 EXCEPT ASSESSMENT YEAR 2 008-09 SANYA HOSPITALITY PVT. LTD. DCIT, PVT. LTD. D-13/1, DEFENCE COLONY, CENTRAL CIRCLE-2 1, NEW DELHI. V. NEW DELHI. PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO.AALCS AALCS AALCS AALCS- -- -5780 5780 5780 5780- -- -P PP P (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI A.K. SRIVASTAVA, C.A. RESPONDENT BY : SHRI SATPAL SINGH, SR. DR. ORDER PER BENCH: THESE ARE TWO GROUPS OF APPEALS FILED BY TWO DIFFERENT ASSESSEES BELONGING TO SAME GROUP. I.T.A. NO.4661 TO 4664/DEL/ 2013 ARE AGAINST DIFFERENT ORDERS OF LD CIT(A) DATED 27..5.2013 WHERE AS I.T.A. NO.S 4665 TO 4570DEL/2013 ARE AGAINST DIFFERENT ORDERS OF LD CI T(A) ALL DATED ITA NO../DEL/ 2 28.5.2013. THE ONLY ISSUE INVOLVED IN ALL THESE APPEAL S IS UPHOLDING OF PENALTY OF ` .10,000/- EACH IN EACH YEAR U/S 271(1)(B) OF THE INC OME TAX ACT, 1961. IN ASSESSMENT YEARS 2005-06 & 2006-07 IN I.T ..A. NO.4665 & I.T.A. NO.4666/DEL/2013 THE ASSESSEE HAS RAISED THE GROUN D OF ORDER BEING BAD IN LAW AS DURING THESE YEARS THE ASSESSEE WAS NON EXISTENT. 2. THE LD AR OF THE ASSESSEE SUBMITTED THAT IN OTHER GRO UP CASES UNDER SIMILAR CIRCUMSTANCES VARIOUS BENCHES OF THE ITAT DELHI HAS DELETED THE PENALTY IMPOSED. IT WAS FURTHER SUBMITTED THAT FACTS & CIRCUMSTANCES OF THE PRESENT APPEALS ARE SAME. THEREFORE , PENALTIES IMPOSED MAY BE DELETED IN THESE APPEALS ALSO. 3. THE LD DR RELIED UPON THE ORDER OF LD CIT(A). 4. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PAR TIES AND HAVE GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT NOTICE U/S 142(1) DATED 23.11.2012 WAS ISSUED FOR HEARI NG ON 29.11.2012. IN ALL THESE CASES DATE OF ISSUE OF NOTICE A ND DATE OF HEARING WAS SAME. WE FURTHER FIND THAT IN THE FOLLOW ING GROUP CASES UNDER SIMILAR FACTS AND CIRCUMSTANCES, THE TRIBUNAL HAS DELETED THE PENALTY. NAME OF ASSESSEE ITA NOS. BENCH DATE OF ORDER SMT. KAMLA MADAN 4671 TO 4677/D/13 D 31.1 .2014 LAKSHMI CHAND 4691 TO 4697/D/13 D 31.1. 2014 MANJUSHA MADAN 4698 TO 4703/D/13 E 31.1. 2014 ROOP KISHORE MADAN 4743 TO 4749/D/13 E 31.1.201 4 ITA NO../DEL/ 3 5. THE TRIBUNAL IN ITS ORDER DATED 31.1.2014 IN I.T .A. NO.4671 TO 4677 & 4691 TO 4697/DEL/13 HAS DEALT WITH THE ISSUE VI DE PARA 6 & 7 AS UNDER:-. HAVING HEARD THE PARTIES IN THE LIGHT OF THE MATERI AL PLACED ON RECORD, WE FIND THAT FIRSTLY EVEN AS PER THE PENALTY ORDERS, IT HAS BEEN OBSERVED THAT THE NOTICES U/S 142(1) OF THE ACT W ERE ISSUED ON 19.11.2012 FOR 26.11.2012, GIVING A VERY SHORT TI ME OF ONLY SIX DAYS. MOREOVER AS TO WHEN THESE NOTICES WERE SERVED R ATHER AS TO WHETHER SUCH NOTICES WERE SERVED AT ALL, DOES NOT FIND MENTION IN THE PENALTY ORDERS. THUS, THE ASSESSEE WAS NOT PROVIDED SUFFICIENT TIME TO RESPOND TO THE NOTICE. 7. FURTHER A PERUSAL OF THE ASSESSMENT ORDERS SHOWS THAT TH ERE IS NO MENTION THEREIN OF ANY NON COOPERATION BY THE ASSE SSEE WITH THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS. THEREFORE, WE DO NOT FIND THESE CASES TO BE FIT FOR IM POSITION OF PENALTY U/S 271(1)(B) OF THE ACT. SUCH PENALTIES ARE, THEREFORE, DELETED IN ALL THE CASES, THE FACTS MUTATIS MUTANDIS, BE ING EXACTLY SIMILAR IN ALL OF THEM. 6. WE FURTHER OBSERVE THAT IN I.T.A. NO.4665 & 4666/ DEL/2013 FOR ASSESSMENT YEAR 2005-06 AND 2006-07, THE ASSESSEE ITSELF WA S NOT IN EXISTENCE AS THE COMPANY WAS INCORPORATED ON 11.1.2007 ONLY AND ASSESSEE HAD SPECIFICALLY RAISED THIS GROUND BEFORE LD CIT (A) BUT LD CIT(A) WITHOUT LOOKING INTO THE FACTS PASSED THE ORDER S IN THESE TWO YEARS ALSO AS IN ALL OTHER YEARS. 7. THEREFORE, THE PENALTY ORDER FOR THESE YEARS DOES N OT STAND AS THE ASSESSEE WAS NOT INTO EXISTENCE IN THESE YEARS. REGARDI NG OTHER ITA NO../DEL/ 4 YEARS ALSO WE FIND THAT FACTS AND CIRCUMSTANCES EXACTLY ARE SAME AS IN THE ORDER REFERRED TO ABOVE AND THEREFORE RESPECTFUL LY FOLLOWING THE ORDER OF COORDINATE BENCHES WE ALSO DELETE THE PENALT IES IMPOSED BY THE ASSESSING OFFICER AND CONFIRMED BY LD CIT(A). 8. IN VIEW OF THE ABOVE, THE APPEALS FILED BY THE ASSE SSEE ARE ALLOWED. 9. ORDER PRONOUNCED IN THE OPEN COURT ON 14TH DAY O F FEBRUARY, 2014. SD/- SD/- (R.P. TOLANI) (T.S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. 14.02.2014. HMS COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI). DATE OF HEARING 7.2.2014 DATE OF DICTATION 10.2.2014 DATE OF TYPING 10.2.2014 DATE OF ORDER SIGNED BY 14.2.2014 BOTH THE MEMBERS & PRONOUNCEMENT. ITA NO../DEL/ 5 DATE OF ORDER UPLOADED ON NET & SENT TO THE BENCH CONCERNED.