Chand Seth, New Delhi V. ACIT, Central Circle-26, New Delhi

ITA 4987/DEL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3102 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 03-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N J SINGH
• Assessee Lawyers: VIJAY KHATANA ADV PROXY
• Keywords: Search and seizure
• Section: 142(1); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER ITA NO. 4987/DEL /2017, ITA 4988/D/2017, ITA 4989/D /2017 ASSESSMENT YEARS: 2009-10, 2010-11, 2011-12 ITA NO. 4990/DEL /2017, ITA 4991/D/17, ITA 4992/D/17, AND ITA 4993/DEL/2017 ASSESSMENT YEARS: 2012-13, 2013-14, 2014-15, 2015-16 SMT. CHAND SETH, C-1/203, 1 ST FLOOR, JANAKPURI, NEW DELHI-110058 VS ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-26, NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VIJAY KHATANA, ADV. (PROXY COUNSEL) RESPONDENT BY : SHRI N.J. SINGH, SR. DR DATE OF HEARING : 06.12.2017 DATE OF PRONOUNCEMENT: 08. 12.2017 ORDER PER DIVA SINGH, J.M. THESE SEVEN APPEALS FILED BY THE ASSESSEE ARE BEIN G DECIDED BY A COMMON ORDER AS THE SOLE ISSUE RAISED IN EACH OF TH ESE APPEALS IS THE CORRECTNESS OF THE CONSOLIDATED ORDER DATED 26.05.2 017 OF THE LD. CIT(A)-29, NEW DELHI IN THE RESPECTIVE ASSESSMENT YEARS WHERE IN THE PENALTY IMPOSED U/S 271(1)(B) BY THE ASSESSING OFFICER HAS BEEN UPH ELD IN APPEAL. 2. ON THE DATE OF HEARING, AN ADJOURNMENT APPLICATI ON WAS PLACED ON BEHALF OF THE COUNSEL SEEKING TIME TO CONSOLIDATE T HE APPEALS WITH OTHER CONNECTED APPEALS. THE RECORD SHOWS THAT REQUEST F OR TIME WAS MADE ON 4 TH DECEMBER, 2017; ON WHICH DATE, TIME WAS GRANTED. C ONSIDERING THE ITA NO. 4987 TO 4989/D/2017 & ITA 4990 TO 4993/D/17 AYS 2009-10 TO 11-12 & 2012-13 TO 2015-16 2 SUBMISSIONS OF THE LD. SR. DR MR. N.J. SINGH AND TA KING NOTE OF THE FACT THAT THE APPEALS COULD BE DECIDED ON THE BASIS OF MATERI AL AVAILABLE ON RECORD, THE REQUEST FOR TIME WAS REJECTED. PRESENCE OF MR. VIJAY KHATANA AS PROXY COUNSEL FOR THE LD. AR WAS TAKEN ON RECORD. 3. THE RECORD SHOWS THAT PENALTY U/S 271(1)(B) WA S IMPOSED UPON THE ASSESSEE IN THE RESPECTIVE YEARS IN VIEW OF THE FAC T THAT ON THE FOLLOWING SPECIFIC DATES AS SET OUT IN THE PENALTY ORDERS, TH E ASSESSEE EITHER SOUGHT ADJOURNMENT OR REMAINED UNREPRESENTED:- 3 .1 A PERUSAL OF THE PENALTY ORDER SHOWS THAT A SEARCH AND SEIZURE OPERATION U/S 132 OF THE IT ACT 1961 WAS CARRIED OU T IN THE CASE OF M/S G.D. FOODS & MANUFACTURING PVT. LTD. & OTHERS, AND THE C ASE OF THE ASSESSEE WAS ALSO COVERED IN THE SAID SEARCH. THE ASSESSEE WAS CONSEQUENTLY REQUIRED TO FILE RETURN IN RESPONSE TO NOTICE U/S 153A. THEREA FTER, NOTICE U/S 143(2)/142(1) ALONG WITH QUESTIONNAIRE AS PER RECOR D WAS ISSUED TO THE ASSESSEE ON 13.5.2016 FIXING THE DATE OF HEARING AS 22 ND JUNE 2016. ON THE SAID DATE, ADJOURNMENT APPLICATION WAS FILED. AS A RESULT OF FURTHER NOTICES ISSUED ON SPECIFIC DATES WHICH HAVE BEEN ELABORATED IN THE CHART ABOVE, PENALTY U/S 271(1)(B) WAS IMPOSED UPON THE ASSESSEE . SL. NO . NOTICE ISSUED U/S DATE OF ISSUE DATE OF HEARING REMARKS , 1 . 142(1) 23.08.2016 01.09.2016 ADJOURNMENT APPLICATION FILED 2. 142(1) 14.10.2016 25.10.2016 NO ONE APPEARED 3 142(1) 17.10.2016 27.10.2016 NO ONE APPEARED 4. 142(1) 03.11.2016 10.11.2016 ON 11.11.2016, PART SUBMISSION FILED 5 271 (1 )(B) 11.11.2016 16.11.2016 NO ONE APPEARED ITA NO. 4987 TO 4989/D/2017 & ITA 4990 TO 4993/D/17 AYS 2009-10 TO 11-12 & 2012-13 TO 2015-16 3 4. THE ASSESSEE, IN THE APPELLATE PROCEEDINGS BEFOR E THE CIT(A) FILED ITS DETAILED SUBMISSIONS VIDE LETTER DATED 24.5.2017 WH ICH HAVE BEEN EXTRACTED IN PARA 5 FROM PAGES 2 TO 7 OF THE IMPUGNED ORDER. THESE WERE FURTHER SUPPLEMENTED BY SUBMISSIONS CONTAINED IN LETTER DA TED 25.5.2017 AND ALSO SUPPORTED BY AN AFFIDAVIT OF THE AR MR. AJAI KUMAR AFFIRMING THE FACTS. HOWEVER, NOT CONVINCED WITH THE EXPLANATION, THE PE NALTY ORDERS WERE UPHELD, LEADING TO THE FILING OF THE PRESENT APPEAL S. 5. A PERUSAL OF THE EXPLANATION EXTRACTED IN THE IMPUGNED ORDER SHOWS THAT THE ASSESSEE SUBMITTED THAT ADMITTEDLY AS PER RECORD, ON TWO OCCASIONS, ADJOURNMENT APPLICATIONS WERE FILED AND ON ONE OF T HESE DATES, PART SUBMISSIONS WERE ALSO FILED. ACCORDINGLY, ON THESE TWO DATES, ASSESSEE CANNOT BE SAID TO BE NOT REPRESENTED. ON THE REMAI NING DATES, IT HAD BEEN ARGUED, THE ASSESSING OFFICER REMAINED FOCUSSED ON CONCLUDING THE ISSUES IN M/S G.D. FOODS MANUFACTURING INDIA P. LTD. AS THE A SSESSING OFFICER WAS OF THE VIEW THAT THE ISSUES WHICH WOULD BE THROWN UP F ROM THE SAID CASE WOULD HAVE AN IMPACT ON THE CASE OF THE ASSESSEE ALSO. AN AFFIDAVIT OF MR. AJAI KUMAR WAS RELIED UPON. MR. AJAI KUMAR AFFIRMED THA T AS ASSESSEES COUNSEL HE REMAINED PRESENT ON THAT DATE, AND HE AFFIRMED T HAT HE HAD BEEN ENTRUSTED WITH THE JOB OF ASSISTING THE ASSESSMENT PROCEEDINGS IN THE CASE OF M/S G.D. FOODS MANUFACTURING INDIA P. LTD. INCLUDIN G THE CASE OF THE ASSESSEE AND HE WAS PRESENT ON EACH OF THESE DATES. IN THESE PECULIAR FACTS AND CIRCUMSTANCES, I AM OF THE VIEW THAT AS FAR AS THE PENALTY IMPOSED U/S 271(1)(B) IS CONCERNED, THE DEFAULT STANDS EXPLAINE D. IN THE FACTS OF THE PRESENT CASE, IT IS SEEN THAT ONCE ON A SPECIFIC DA TE, AN ADJOURNMENT ITA NO. 4987 TO 4989/D/2017 & ITA 4990 TO 4993/D/17 AYS 2009-10 TO 11-12 & 2012-13 TO 2015-16 4 APPLICATION IS MOVED, IT CAN, BY NO STRETCH OF IMAG INATION, BE SAID TO BE A CASE OF NON-COMPLIANCE. SIMILARLY, WHERE PART INFO RMATION IS PLACED ON RECORD AND TIME IS SOUGHT, IT AGAIN CANNOT BE SAID TO BE A CASE OF ABSENTING ONESELF WITHOUT AN EXPLANATION. ON THE REMAINING D ATES, THE ASSESSEE HAS CONSISTENTLY ARGUED THAT HIS COUNSEL REMAINED PRESE NT. HOWEVER, THE FOCUS OF THE ASSESSING OFFICER REMAINED UPON THE MAIN APP EALS IN THE CASE OF M/S G.D. FOODS GROUP IN WHICH BACKGROUND, IT HAS BEEN S TATED THAT THE OCCASION FOR THE ASSESSEE TO REMAIN NOT PRESENT THROUGH HIS COUNSEL DID NOT ARISE. I FIND THAT THE COMMISSIONER OF INCOME TAX(A) THOUGH HAS TAKEN NOTE OF THESE ARGUMENTS, FACTS, SUBMISSIONS AND AFFIDAVIT, HOWEVE R, HAS REFUSED TO ACCEPT THE EXPLANATION. IN THE ABSENCE OF ANY JUSTIFIABLE REASON FOR REJECTION OF ASSESSEES EXPLANATION, THE ORDER CANNOT BE UPHELD. CONSIDERING THE SUBMISSIONS OF THE LD. SR. DR AND THE SUBMISSIONS O F THE ASSESSEE AS RECORDED IN THE IMPUGNED ORDER, I FIND THAT IN THE ABSENCE OF ANY GOOD REASON TO THE CONTRARY, THE PENALTY ORDER IN THE PE CULIAR FACTS AND CIRCUMSTANCES OF THE CASE DESERVES TO BE QUASHED. ORDERED ACCORDINGLY. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 6. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE ALLOWED. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT O N THE DATE OF HEARING ITSELF ON 08 DECEMBER, 2017. SD/- (DIVA SINGH) JUDICIAL MEMBER DATED: 08 DECEMBER, 2017 GS ITA NO. 4987 TO 4989/D/2017 & ITA 4990 TO 4993/D/17 AYS 2009-10 TO 11-12 & 2012-13 TO 2015-16 5 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT BY ORDER ASSISTANT REGI STRAR DRAFT DICTATED ON 06.12.2017 DRAFT PLACED BEFORE AUTHOR 06.12.2017 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. APPROVED DRAFT COMES TO THE SR.PS/PS KEPT FOR PRONOUNCEMENT ON 08.12.2017 FILE SENT TO THE BENCH CLERK 08.12.2017 DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.