Hiralal Rathi, New Delhi V. ACIT, New Delhi

ITA 4831/DEL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 81829 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 20-10-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 12-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH C CC C : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE BEFORE SHRI G.D. AGRAWAL, VICE BEFORE SHRI G.D. AGRAWAL, VICE BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND PRESIDENT AND PRESIDENT AND PRESIDENT AND SHRI SHRI SHRI SHRI ABY T. VARKEY ABY T. VARKEY ABY T. VARKEY ABY T. VARKEY, JUDICIAL , JUDICIAL , JUDICIAL , JUDICIAL MEMBER MEMBER MEMBER MEMBER ITA NO ITA NO ITA NO ITA NO S SS S . .. . 4829/DEL/2013 TO 4832/DEL/2013 4829/DEL/2013 TO 4832/DEL/2013 4829/DEL/2013 TO 4832/DEL/2013 4829/DEL/2013 TO 4832/DEL/2013 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR S SS S : : : : 2007 2007 2007 2007 - -- - 08 TO 2010 08 TO 2010 08 TO 2010 08 TO 2010 - -- - 11 1111 11 SHRI HIRALAL RATHI, SHRI HIRALAL RATHI, SHRI HIRALAL RATHI, SHRI HIRALAL RATHI, F FF F- -- -12, 12, 12, 12, LADOSARAI, LADOSARAI, LADOSARAI, LADOSARAI, OLD M.B. ROAD, OLD M.B. ROAD, OLD M.B. ROAD, OLD M.B. ROAD, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. PAN : AHQPR2733N. PAN : AHQPR2733N. PAN : AHQPR2733N. PAN : AHQPR2733N. VS. VS. VS. VS. ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE- -- -11, 11, 11, 11, ARA CENTRE, ARA CENTRE, ARA CENTRE, ARA CENTRE, JHANDEWALAN, JHANDEWALAN, JHANDEWALAN, JHANDEWALAN, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : NONE. RESPONDENT BY : SMT. PARMINDER KAUR, SR.DR. ORDER ORDER ORDER ORDER PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP : :: : THESE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-XXXI, NEW DELHI DATED 25 TH SEPTEMBER, 2013 FOR THE AY 2007-08 TO 2010-11. 2. THE ONLY GROUND RAISED BY THE ASSESSEE IN THESE APPEALS IS AGAINST THE LEVY OF PENALTY OF `10,000/- UNDER SECT ION 271(1)(B) OF THE INCOME-TAX ACT, 1961 FOR EACH ASSESSMENT YEAR. 3. WE HAVE HEARD THE ARGUMENTS OF LEARNED DR AND PE RUSED RELEVANT MATERIAL PLACED BEFORE US. FROM A PERUSAL OF THE PENALTY ORDER, IT IS EVIDENT THAT IN ALL THE FOUR YEARS, TH E ASSESSING OFFICER HAS LEVIED THE PENALTY FOR FAILURE OF THE ASSESSEE TO C OMPLY WITH THE NOTICE DATED 5 TH DECEMBER, 2011. HOWEVER, FROM THE PENALTY ORDER, IT IS ITA-4829 TO 4832/D/2013 2 NOTICED THAT THE NOTICE DATED 5 TH DECEMBER, 2011 WAS SENT BY POST. THE DATE OF SERVICE OF THE NOTICE IS NOT MENTIONED IN THE PENALTY ORDER OF ANY OF THE YEAR. THE ASSESSEE WAS ASKED TO MAKE COMPLIANCE ON OR BEFORE 15 TH DECEMBER, 2011. THEREFORE, NOW THE LIMITED QUESTI ON BEFORE US IS WHETHER THE ASSESSING OFFICER HAD ALLO WED ADEQUATE TIME TO THE ASSESSEE TO COMPLY WITH THE NOTICE DATED 5 TH DECEMBER, 2011? THE ASSESSING OFFICER HAS NOT GIVEN THE DATE OF SER VICE OF NOTICE, THEREFORE, EVEN IF WE PRESUME THAT THE NOTICE WAS S ERVED WITHIN THE PERIOD OF FIVE DAYS FROM THE DATE OF NOTICE, THEN, THE NOTICE WOULD HAVE BEEN SERVED BY 10 TH DECEMBER, 2011 AND THE ASSESSEE WAS REQUIRED TO SUBMIT THE DETAILS BY 15 TH DECEMBER, 2011. THUS, THE TIME ALLOWED FOR COMPLYING WITH THE NOTICE WAS LESS THAN A WEEK WHIC H CANNOT BE SAID TO BE AN ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WHEN THE ASSESSING OFFICER HAS NOT ALLOWED ADEQUATE TIME TO THE ASSESSEE TO COMPLY WITH THE NOTICE DATED 5 TH DECEMBER, 2011, IN OUR OPINION, THE PENALTY UNDER SECTION 271(1)(B) COULD NOT BE LEVIED FOR NON-COMPLIANCE OF SUCH NOTICE BECAUSE THE ASSESSING OFFICER HIMSEL F HAS NOT ALLOWED ADEQUATE TIME TO MAKE NECESSARY COMPLIANCE. WE, TH EREFORE, CANCEL THE PENALTY LEVIED UNDER SECTION 271(1)(B) OF THE A CT IN ALL THE FOUR YEARS. 4. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE A RE ALLOWED. DECISION PRONOUNCED IN THE OPEN COURT ON 21 ST OCTOBER, 2014. SD/- SD/- ( (( ( ABY T. VARKEY ABY T. VARKEY ABY T. VARKEY ABY T. VARKEY ) )) ) (G.D. AGRAWAL (G.D. AGRAWAL (G.D. AGRAWAL (G.D. AGRAWAL ) )) ) JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 21.10.2014 VK. ITA-4829 TO 4832/D/2013 3 COPY FORWARDED TO: - 1. APPELLANT : SHRI HIRALAL RATHI, SHRI HIRALAL RATHI, SHRI HIRALAL RATHI, SHRI HIRALAL RATHI, F FF F- -- -12, LADOSARAI, OLD M.B. ROAD, NEW DELHI. 12, LADOSARAI, OLD M.B. ROAD, NEW DELHI. 12, LADOSARAI, OLD M.B. ROAD, NEW DELHI. 12, LADOSARAI, OLD M.B. ROAD, NEW DELHI. 2. RESPONDENT : ASSISTANT COMMISSIONER OF INCOME TA X, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE- -- -11, ARA CENTRE, JHANDEWALAN, 11, ARA CENTRE, JHANDEWALAN, 11, ARA CENTRE, JHANDEWALAN, 11, ARA CENTRE, JHANDEWALAN, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR