M/s. Sanya Automobiles Pvt. Ltd., New Delhi V. DCIT, New Delhi

ITA 4742/DEL/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3513 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 8 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 17-04-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 08-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: A K SRIVASTAVA
• Section: 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA , ACCOUNTANT MEMBER I.T.A. NOS.4741-4742 & 4750-4754/DEL/2013 ASSESSMENT YEARS: 2005-06 TO 2011-12 M/S SANYA AUTOMOBILES PVT. LTD. VS. DCIT, CC-21 D-13, DEFENCE COLONY, NEW DELHI NEW DELHI (PAN: AAICS5590C) (ASSESSEE) (RESPONDENT) ASSESSEE BY : SH. A.K. SRIVASTAVA, CA REVENUE BY : SH. N.K. BANSAL, SR. DR ORDER PER BENCH THESE 07 APPEALS ARE FILED BY ASSESSEE AGAINST THE SEPARATE ORDERS ALL DATED 27.05.2013 PASSED BY THE LD. CIT( A)-II, NEW DELHI RELATING TO ASSESSMENT YEARS 2005-06 TO 2011-12 RES PECTIVELY. SINCE THE ISSUE INVOLVED IN ALL THESE APPEALS IS SIMILA R AND IDENTICAL, HENCE, THE APPEALS WERE HEARD TOGETHER AND ARE BEIN G DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE, BY DEALING WITH ITA NO. 4741/DEL/2013 (AY 2005-06). 2. THE COMMON GROUNDS RAISED IN ALL THE APPEALS REA D AS UNDER:- 1. THAT LD. CIT(A) HAS GROSSLY ERRED IN CONFIRMING THE PENALTY U/S. 271(1)(B) OF THE ACT IN SPITE OF THE FACT THAT NO REASONABLE OPPORTUNITY WAS GRANTED TO THE ASSESSEE FOR 2 BEING PRESENT ON THE DATE OF HEARING AND ASSESSEE H AVING FULLY COOPERATED IN THE OVERALL ASSESSMENT PROCEEDI NGS. 2. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND, D ELETE OR ALTER ANY ONE OR MORE OF THE AFORESAID GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 3. THE BRIEF FACTS OF THE CASE ARE THAT AS PER THE PENALTY ORDER FOR ASSESSMENT YEARS 2005-06, NOTICE U/S 142(1) OF THE IT ACT ALONG WITH QUESTIONNAIRE WERE ISSUED ON 19.11.2012, FIXING THE CASE FOR 26.11.2012. ON 26.11.2012, NEITHER ANYBODY ATTENDED THE PROCEEDINGS, NOR THE REQUISITE INFORMATION/DETAILS WERE FILED. A SHOW CAUSE NOTICE IMPOSING PENALTY U/S 271 (L)(B) OF THE ACT WAS ISSUED ON 07.12.2012. IN RESPONSE, VIDE REPLY DATED 26.12.201 2, THE ASSESSEE EXPLAINED THAT HIS ACCOUNTANT WAS NOT FEELING WELL. THE ASSESSING OFFICER, NOT SATISFIED WITH THE SAID REPLY, IMPOSED PENALTY OF RS. 10,000/- U/S 271(L)(B) OF THE ACT. 4. AGAINST THE AFORESAID PENALTY, ASSESSEE APPEALE D BEFORE THE LD. CIT(A) WHO VIDE HIS IMPUGNED ORDER HAS CONFIRMED T HE PENALTY. 5. AGGRIEVED WITH THE AFORESAID PENALTY, THE ASSESS EE IS IN APPEAL BEFORE THE TRIBUNAL. 6. AT THE TIME OF HEARING, ID. COUNSEL FOR THE ASS ESSEE HAS CONTENDED THAT THE NOTICE ISSUED U/S 142 (1) HAD BEEN ISSUED AFFORDING A VERY SHORT PERIOD OF TIME, FIXING THE DATE FOR 26.11.201 2. IT IS CONTENDED THAT THE PENALTY WAS WRONGLY IMPOSED SINCE THE ASSE SSEE DID NOT 3 COMMIT ANY DEFAULT IN APPEARANCE BEFORE THE ASSESSI NG OFFICER IN THE ASSESSMENT PROCEEDINGS. HE FURTHER STATED THAT THE ISSUE IN DISPUTE IS SQUARELY COVERED BY THE VARIOUS ORDERS OF DIFFERENT BENCHES OF ITAT, DELHI IN OTHER CASES OF THE GROUP OF THE ASSESSEE, AS PER DETAILS GIVEN BELOW AND FILED THE COPIES OF THE ORDERS. - ITAT, D BENCH, DELHI KAMLA MADAN VS. DCIT IN ITA NO. 4671 TO 4677/DEL/2013 DATED 31.1.14 - ITAT, D BENCH, DELHI LAKSHMI CHAND MADAN VS. DCIT IN ITA NO. 4691 TO 4697/DEL/2013 DATED 31.1.14 - ITAT, E BENCH, DELHI MANJUSHA MADAN IN ITA N O. 4698 TO 4703/DEL/2013 DATED 31.1.14 - ITAT, F BENCH, DELHI ROOP KISHORE MADAN IN I TA NO. 4743 TO 4749/DEL/2013 DATED 30.1.14 - ITAT, G BENCH, DELHI SANYA HOSPITAL & DIAGNOS TIC PVT. LTD. IN ITA NO. 4661 TO 4664/DEL/2013 DATED 14.2.14 - ITAT, G BENCH, DELHI SANYA HOSPITALITY PVT. L TD. IN ITA NO. 4665 TO 4670/DEL/2013 DATED 14.2.14 - ITAT, B BENCH, DELHI DHRUV MADAN IN ITA NO. 4678 TO 4683/DEL/2013 DATED 24.6.14 4 - ITAT, B BENCH, DELHI CHHAVI DASS IN ITA NO. 4684 TO 4690/DEL/2013 DATED 25.6.14 - ITAT, A BENCH, DELHI BELA MADAN IN ITA NO. 4 738 & ORS. /DEL/2013 DATED 28.11.14 5. ON THE CONTRARY, THE LD. DR, HAS PLACED STRONG RELIANCE ON THE IMPUGNED ORDER. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS, ESPECIALLY THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE CASE LAWS CITED BY THE LD. COUNSEL OF THE ASSESSEE IN OTHER CASES OF THE GROUP OF THE ASSESSEE, AS AFORESAID. WE FIND THAT FIRSTLY, EVEN AS PER THE PENALTY ORDERS, IT HAS BEEN OBSERVED THAT THE NOTICES U/S 1 42(1) OF THE ACT WERE ISSUED ON 19.11.2012, FOR FIXING THE CASE FOR 26.11.2012, GIVING A VERY SHORT TIME OF ONLY SIX DAYS. MOREOVER, AS TO WHEN THESE NOTICES WERE SERVED, RATHER AS TO WHETHER SUCH NOTICES WERE AT ALL, DOES NOT FIND MENTION IN THE PENALTY ORDERS. THUS THE ASSESS EE WAS NOT PROVIDED SUFFICIENT TIME TO RESPOND TO THE NOTICE. WE FURTHER FIND THAT ITAT D BENCH, DELHI IN OTHER GROUP OF ASSESSEE I. E. KAMLA MADAN VS. DCIT IN ITA NO. 4671 TO 4677/DEL/2013 & LAKSHMI CHA ND MADAN VS. DCIT IN ITA NO. 4691 TO 4697/DEL/2013 VIDE DATED 31 .1.14 HAS HELD AS UNDER:- 6. HAVING HEARD THE PARTIES IN THE LIGHT OF THE MATERIAL PLACED ON RECORD, WE FIND THAT FIRSTLY, 5 EVEN AS PER THE PENALTY ORDERS, IT HAS BEEN OBSERVED THAT THE NOTICES U/S 142(1) OF THE ACT WERE ISSUED ON 19.11.2012, FOR 26.11.2012, GIVING A VERY SHORT TIME OF ONLY SIX DAYS. MOREOVER, AS TO WHEN THESE NOTICES WERE SERVED, RATHER AS TO WHETHER SUCH NOTICES WERE AT ALL, DOES NOT FIND MENTION IN THE PENALTY ORDERS. THUS THE ASSESSEE WAS NOT PROVIDED SUFFICIENT TIME TO RESPOND TO THE NOTICE. 6.1 FURTHER, A PERUSAL OF THE ASSESSMENT ORDERS SHOWS THAT THERE IS NO MENTION THEREIN, OF ANY NON-COOPERATION BY THE ASSESSEE WITH THE AO DURING THE ASSESSMENT PROCEEDINGS. THEREFORE, WE DO NOT FIND THESE CASES TO BE FIT FOR IMPOSITION OF PENALTY U/S. 271(1)(B) OF THE ACT. SUCH PENALTIES ARE, THEREFORE, DELETED IN ALL THE CASES, THE FACTS, MUTATIS MUTANDIS BEING EXACTLY SIMILAR IN ALL OF THEM. 7. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND RESPECTFULLY FOLLOWING THE PRECEDENTS, AS AFORESAID , WE DO NOT SEE ANY NON-COOPERATION ON THE PART OF THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS. THEREFORE, WE DO NOT FIND THESE CASES TO BE FIT FOR IMPOSITION OF PENALTY U/S. 271(1)(B) OF THE ACT. SU CH PENALTIES ARE, 6 THEREFORE, DELETED IN ALL THE CASES, THE FACTS, MUT ATIS MUTANDIS BEING EXACTLY SIMILAR IN ALL OF THEM. 8. IN THE RESULT, ALL THE 07 APPEALS FILED BY THE A SSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 19/04/2017 . SD/- SD/- [ ANADEE NATH MISSHRA ] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 19/04/2017 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES