Hans Ispat Ltd., Ahmedabad V. DCIT, New Delhi

ITA 4998/DEL/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6391 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-07-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 02-07-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 30-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATPAL SINGH
• Section: 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH C, NEW DELHI) BEFORE SHRI U.B.S.BEDI, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A. NOS.4998,4999,5000,5001,5002,5003 & 5004/DEL /2013 (ASSESSMENT YEARS : 2004-05, 2005-06, 2006-07, 2007 -08, 2008-09, 2009-10 & 2010-2011 RESPECTIVELY) HANS ISPAT LTD., VS. DCIT, CC-25, C/O MEHTA LODHA & CO., C.A., NEW DELHI 105, SAKAR-I, ASHRAM ROAD, AHMEDABAD GIR / PAN:AABCH2447Q (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PRAKASH D SHAH, CA RESPONDENT BY : SHRI SATPAL SINGH, SR. DR ORDER PER T.S. KAPOOR, AM: THIS IS A BUNCH OF SEVEN APPEALS FILED BY THE ASSES SEE AGAINST THE SEPARATE ORDERS OF LD. CIT(A) ALL DATED 04.06.2013. THE COM MON ISSUE INVOLVED IN ALL THESE APPEALS IS REGARDING GRIEVANCE OF THE ASS ESSEE WITH THE ACTION OF LD. CIT(A) BY WHICH HE HAD UPHELD THE PENALTY IMPOSED B Y THE ASSESSING OFFICER U/S 271(1)(B) OF THE ACT. THESE APPEALS WE RE HEARD TOGETHER AND, THEREFORE, FOR THE SAKE OF CONVENIENCE, A COMMON AN D CONSOLIDATED ORDER IS BEING PASSED. 2. AT THE OUTSET, THE LD. A.R. SUBMITTED THAT THE N OTICE ISSUED BY THE ASSESSING OFFICER DATED 21.11.2011 WAS NOT RECEIVED BY THE ASSESSEE COMPANY AS THE MANAGEMENT OF COMPANY WAS CHANGED AN D AS REGARDS NOTICE U/S 142(1) DATED 01.12.2011, WHICH WAS RECEIVED ON 06.12.2011 AND THE ITA NO.4998-5004/DEL/13 2 ASSESSEE WAS REQUIRED TO FILE A REPLY WITHIN SEVEN DAYS WHICH THE ASSESSEE COULD NOT DO AS THE REGISTERED OFFICE OF THE ASSESS EE WAS SITUATED IN AHMEDABAD WHEREAS, THE ASSESSING OFFICER WAS AT NEW DELHI AND THEREFORE, THERE WAS LITTLE TIME LEFT TO COMPLY WITH THE NOTIC E. 3. THE LD. A.R. RELIED UPON THE ITAT ORDER IN I.T.A .NO. 4239/DEL.2013 PRONOUNCED ON 03.01.2014, WHEREIN THE TRIBUNAL HAD HELD THAT NOTICE OF LESS THAN 10 DAYS ALLOWED BY THE ASSESSING OFFICER FOR C OMPLYING WITH THE DETAILED QUESTIONNAIRE WAS NOT SUFFICIENT TIME AND, THEREFORE, PENALTY IMPOSED U/S 271(1)(B) WAS DELETED. LD. A.R. FURTHE R SUBMITTED THAT THE ASSESSMENT WAS COMPLETED U/S 144 WHICH WAS CHALLENG ED BEFORE LD. CIT(A) AND ALL THE ADDITIONS WERE DELETED AND REVENUE HAD NOT FILED ANY APPEAL BEFORE ITAT. IN VIEW OF THE ABOVE FACTS, IT WAS PR AYED THAT PENALTY IMPOSED BY THE ASSESSING OFFICER AND CONFIRMED BY LD. CIT(A ) BE DELETED. 4. LD. D.R. ON THE OTHER HAND ARGUED THAT IRRESPECT IVE OF THE APPEAL EFFECT ON ASSESSMENT ORDER, THE PENALTY U/S 271(1)( B) IS FOR NOT COMPLYING WITH THE NOTICE ISSUED U/S 142(1) AND, THEREFORE, L D. CIT(A) HAD RIGHTLY CONFIRMED THE SAME. 5. WE HAVE HEARD RIVAL PARTIES AND HAVE GONE THROUG H THE MATERIAL PLACED ON RECORD. WE FIND THAT LD. CIT(A) IN HIS ORDER HI MSELF HAD ADMITTED THAT NOTICE U/S 153C WAS NOT PROPERLY SERVED AND HE HAD ALSO ACCEPTED THAT THE ASSESSEE HAD RECEIVED NOTICE U/S 142(1) DATED 01.12 .2011 ONLY. RELEVANT FINDING OF LD. CIT(A) ARE CONTAINED IN PARA 3.2. 6. FROM THE ABOVE FINDINGS OF LD. CIT(A), WE FIND T HAT NOTICE DATED 01.12.2011 WAS RECEIVED BY THE ASSESSEE ON 06.12.20 11 AND THE APPELLANT HAD ONLY THREE DAYS TO COMPLY WITH THE NUMEROUS REQ UIREMENTS IN THE SAID ITA NO.4998-5004/DEL/13 3 NOTICE. WE FIND THAT THE PERIOD LEFT WITH THE ASSE SSEE WAS NOT SUFFICIENT TO REPLY THE NUMEROUS REQUIREMENT OF THE QUESTIONNAIRE AS ANNEXED WITH THE NOTICE U/S 142(1) AND, THEREFORE, CANNOT BE CONSIDE RED TO BE SUFFICIENT TIME BEING ALLOWED TO THE ASSESSEE. THEREFORE, FAILURE OF THE ASSESSEE TO COMPLY WITH SUCH NOTICE CANNOT BE SAID TO BE A DEFAULT WHI CH MAY JUSTIFY THE PENALTY U/S 271(1)(B) OF THE ACT. DELHI TRIBUNAL IN I.T.A. NO. 4239/DEL/2012 IN ORDER DATED 03.01.2014 HAS CONSIDERED THE PERIOD OF 10 DAYS AS NOT SUFFICIENT TIME FOR COMPLYING WITH SUCH NOTICE. THEREFORE, FO LLOWING THE ABOVE, WE ARE OF THE OPINION THAT TIME FOR REPLYING THE NOTICE WA S NOT SUFFICIENT AND, THEREFORE, PENALTY IMPOSED U/S 271(1)(B) WAS NOT IM POSABLE. 7. IN VIEW OF THE ABOVE, THE APPEALS FILED BY THE A SSESSEE ARE ALLOWED. 8. ORDER AS PRONOUNCED IN THE OPEN COURT ON THE CON CLUSION OF HEARING IS PRONOUNCED TODAY ON 04 TH JULY, 2014. SD./- SD./- ( U.B.S.BEDI ) (T.S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 04 TH JULY, 2014 SP 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). ITA NO.4998-5004/DEL/13 4 DATE OF HEARING DATE OF DICTATION DATE OF TYPING DATE OF ORDER SIGNED BY BOTH THE MEMBERS & PRONOUNCEMENT. DATE OF ORDER UPLOADED ON NET & SENT TO THE BENCH CONCERNED.