MAYUR VINOD FARIA, MUMBAI V. DCIT (OSD) II CEN RG 7, MUMBAI

ITA 5124/MUM/2012

• Counselvise Citation: 512419914 RSA 2012
• Duration Of Justice: 1 year(s) 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 13-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JITENDRAYADEV
• Assessee Lawyers: KIRAN D SEJPAL
• Keywords: Search and seizure
• Section: 144; 142(1)

Judgement Text

B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI .. , ; BEFORE SHRI P.M. JAGTAP, AM AND SHRI VIVEK VARMA, J M ./ I.T.A. NOS. 5122 TO 5125/MUM/2012 ( / ASSESSMENT YEARS : 2003-04, 2004-05, 2005-06 & 2006-07) SHRI MAYUR VINOD FARIA, FLAT NO. 3, FAIRY MANOR 13, GUNBOW STREET, FORT, MUMBAI-400001 / VS. DY. CIT (OSD) - II , CENTRAL RANGE -7, ROOM NO. 413, AAYAKAR BHAVAN, MUMBAI-400020 ./ PAN : AAMPF 4763 B ( # / APPELLANT ) .. ( $%# / RESPONDENT ) # & / APPELLANT BY : MISS KIRAN D. SEJPAL $%# & / RESPONDENT BY : SHRI JITENDRA YADEV & + / DATE OF HEARING : 03-03-2014 & + / DATE OF PRONOUNCEMENT : 0720322014 / O R D E R PER P.M. JAGTAP, A.M . .. , THESE FOUR APPEALS FILED BY THE ASSESSEE ARE DIRECT ED AGAINST A COMMON ORDER PASSED BY THE LD. CIT(A) -40, MUMBAI DATED 23- 05-2012 WHEREBY HE CONFIRMED THE PENALTY OF RS. 10, 000/- EACH IMPOSED BY THE A.O. U/S 271(1)(B) OF THE INCOME TAX ACT, 1961 FOR ASSESSMENT YEARS 2003-04 TO 2006-07. 2. THE RELEVANT FACTS OF THE CASE GIVING RISE OF TH ESE APPEALS ARE THAT A SEARCH AND SEIZURE ACTION U/S 132(1) OF THE INCOME TAX ACT, 2 ITA NOS 5122 TO 5125 /MUM/2012 SHRI MAYUR VINOD FARIA. 1962 (THE ACT) WAS CONDUCTED IN THE CASES BELONGING TO SHRI VINOD FARIA/MILAN DALAL GROUP ON 30-5-2008. PURSUANT TO T HE SAID ACTION, NOTICES U/S 153-A OF THE ACT WERE ISSUED BY THE A.O. REQUIRING THE ASSESSEE TO FILE ITS RETURNS OF INCOM E FOR ALL THE FOUR YEARS UNDER CONSIDERATION. THE ASSESSEE DID NOT CO MPLY WITH THE SAID NOTICES WHICH WERE DULY SERVED ON HIM ON 16-12 -2009. THE A.O., THEREFORE, ISSUED NOTICES U/S 142(1) OF THE A CT ON 27-10-2010 WHICH AGAIN REMAINED UN-COMPLIED WITH BY THE ASSESS EE. KEEPING THIS NON-COMPLIANCE OF THE ASSESSEE, THE A.O. PROCE EDED TO COMPLETE THE ASSESSMENTS EX-PARTE U/S 144 OF THE AC T AND ALSO INITIATED PENALTY PROCEEDINGS U/S 271(1)(B) OF THE ACT FOR ALL THE FOUR YEARS UNDER CONSIDERATION. IN REPLY TO THE NOT ICES ISSUED BY THE A.O. DURING THE COURSE OF PENALTY PROCEEDINGS, IT WAS SUBMITTED BY THE ASSESSEE THAT HE WAS NOT LIABLE TO FILE THE RETURNS OF INCOME FOR ALL THE FOUR YEARS UNDER CONSIDERATIO N BEING A MINOR AT THE RELEVANT TIME AND HE, THEREFORE, COULD NOT B E HELD GUILTY FOR NOT FILING THE RETURNS FOR THE SAID YEARS OR FOR NO T RESPONDING TO THE NOTICES ISSUED U/S 153-A/142(1) OF THE ACT. THIS EX PLANATION OF THE ASSESSEE WAS NOT FOUND ACCEPTABLE BY THE A.O. IN TH E ABSENCE OF ANY EVIDENCE FILED BY THE ASSESSEE SHOWING HIS DATE OF BIRTH. HE ALSO HELD THAT THE ASSESSEE WAS A MAJOR AT THE TIME OF RECEIVING NOTICES U/S 153A/142(1) OF THE ACT AND HIS FAILURE TO COMPLY WITH THE SAID NOTICES MADE BY HIM LIABLE TO PENALTY U/S 271(1)(B) OF THE ACT. ACCORDINGLY, PENALTY OF RS. 10,000/- WAS IMPO SED BY THE A.O. U/S 271(1)(B) OF THE ACT FOR EACH OF THE FOUR YEARS UNDER CONSIDERATION. 3. `THE PENALTY IMPOSED BY THE A.O. U/S 271(1)(B) O F THE ACT FOR ALL THE FOUR YEARS UNDER CONSIDERATION WAS CHALLENG ED BY THE ASSESSEE BY FILING APPEALS BEFORE THE LD. CIT(A) AN D IT WAS REITERATED ON BEHALF OF THE ASSESSEE BEFORE THE LD. CIT(A) THA T HE WAS NOT 3 ITA NOS 5122 TO 5125 /MUM/2012 SHRI MAYUR VINOD FARIA. LIABLE TO FILE THE RETURNS FOR ALL THE FOUR YEARS U NDER CONSIDERATION BEING A MINOR AT THE RELEVANT TIME AND HE, THEREFOR E, COULD NOT BE HELD GUILTY FOR NOT COMPLYING WITH THE NOTICES ISSU ED U/S 153A/142(1) OF THE ACT. THE LD. CIT(A) ACCEPTED THE FACTUAL POSITION THAT THE ASSESSEE HAVING BIRTH DATE OF 27-12-1988 W AS NOT REQUIRED TO FILE THE RETURNS OF INCOME FOR ALL THE FOUR YEAR S UNDER CONSIDERATION. HE, HOWEVER, HELD THAT THE ASSESSEE HAD BECOME MAJOR WHEN THE NOTICES U/S 142(1) WERE SERVED ON HI M AND HE THEREFORE WAS LEGALLY BOUND TO COMPLY WITH THE SAID NOTICES EVEN THOUGH HIS REPLY COULD HAVE CONTAINED ONLY THE FACT THAT HE WAS NOT REQUIRED TO FILE THE RETURNS OF INCOME. ACCORDI NG TO THE LD. CIT(A), THE ASSESSEE THUS HAD COMMITTED A DEFAULT F OR WHICH PENALTY U/S 271(1)(B) OF THE ACT WAS RIGHTLY LEVIE D BY THE A.O. AGGRIEVED BY THE ORDERS OF THE LD. CIT(A), THE ASSE SSEE HAS PREFERRED THESE APPEALS BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE FACT THAT THE ASSESSEE HAVING BORN ON 27-12-1988 WAS NOT LIABLE T O FILE THE RETURNS OF INCOME FOR ALL THE FOUR YEARS UNDER CONS IDERATION BEING A MINOR AT THE RELEVANT TIME IS NOT IN DISPUTE. IN TH E CASE OF KUM. SHRUTI MALIK VS. ITO [1991] 39 TTJ 122 (INDORE) CIT ED BY THE LD. COUNSEL FOR THE ASSESSEE, A SIMILAR ISSUE WAS INVOL VED AND IT WAS HELD BY THE TRIBUNAL THAT EVEN THOUGH THE ASSESSMEN T COULD BE MADE IN THE HANDS OF THE MINORS, PENALTY COULD NOT BE LEVIED DIRECT ON THEM SINCE THEIR GUARDIAN WAS RESPONSIBLE FOR FI LING THE RETURNS OF THEIR INCOME. IT WAS HELD THAT ANY NOTICE TO A M INOR SHOULD NECESSARILY BE ISSUED THROUGH A GUARDIAN AND SINCE THE MINOR WAS LEGALLY INCOMPETENT TO RECEIVE A NOTICE AND TO MAKE COMPLIANCE THEREOF, THE PENALTY LEVIED ON THE MINOR COULD NOT BE SUSTAINED. RESPECTFULLY FOLLOWING THE DECISION OF THE INDORE B ENCH OF ITAT IN 4 ITA NOS 5122 TO 5125 /MUM/2012 SHRI MAYUR VINOD FARIA. THE CASE OF KUM. SHRUTI MALIK (SUPRA), WE CANCEL TH E PENALTY IMPOSED BY THE A.O. U/S 271(1)(B) OF THE ACT AND CO NFIRMED BY THE LD. CIT(A) FOR ALL THE FOUR YEARS UNDER CONSIDERATI ON AND ALLOW THE APPEALS FILED BY THE ASSESSEE. 5. IN THE RESULT, ALL THE FOUR APPEALS FILED BY THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH MARCH, 2014. & 8 9 0720322014 & SD/- SD/- (VIVEK VARMA) (P.M. JAGTAP ) JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; 9 DATED 0720322014 ../ R.K. SR. PS ' #%& '& / COPY OF THE ORDER FORWARDED TO : 1. # / THE APPELLANT 2. $%# / THE RESPONDENT. 3. < () / THE CIT (A) - 40 , MUMBAI 4. < /CIT CENTRAL II, MUMBAI 5. $@ , + @ , / DR, ITAT, MUMBAI B BENCH 6. / GUARD FILE. / BY ORDER, % $ //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI