PRAVIN SAWANT, THANE V. ITO WD 3(4), KALYAN

ITA 5289/MUM/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3621 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 20-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M SALMAN KHAN
• Section: 142(1); 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH C, MUMBAI BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.5289/M/2014 ASSESSMENT YEAR: 2005-06 M/S. PRAVIN SAWANT, B-62, S.P. BHAGAT SOCIETY, KOPAR ROAD, DOMBIVALI (W), THANE 421 202 PAN: ANTPS3885K VS. ITO WARD 3(4), RANI MANSION, MURBAD ROAD, KALYAN (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI AJAY DAGA, A.R. REVENUE BY : SHRI M. SALMAN KHAN, D.R. DATE OF HEARING : 08.03.2016 DATE OF PRONOUNCEMENT : 08.03.2016 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE, AGAINST THE ORDER DATED 29.05.2014 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO ASSESSMENT Y EAR 2005-06, AGITATING THE LEVY OF PENALTY UNDER SECTION 271(1)(B) OF THE ACT. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E FILED RETURN OF INCOME DECLARING TOTAL INCOME OF RS.90,000/- FOR THE ASSES SMENT YEAR UNDER CONSIDERATION. THE CASE WAS SELECTED FOR SCRUTINY AND ACCORDINGLY NOTICE UNDER SECTION 143(2) WAS ISSUED AND SERVED ON THE ASSESSE E ON 12.05.10. HOWEVER, SINCE THERE WAS NO COMPLIANCE OF THE NOTICE, ANOTHE R NOTICE UNDER SECTION 143(2)/141 WAS SERVED ON THE ASSESSEE ON 03.10.10 C ALLING TO APPEAR ON 06.10.10 BUT NONE APPEARED. THEREAFTER, THE ASSESS ING OFFICER (HEREINAFTER REFERRED TO AS THE AO) SERVED NOTICES ON 23.10.10 F OR APPEARANCE ON 28.10.10, DATED 29.10.10 FOR APPEARANCE ON 04.11.10 AND FINAL LY DATED 30.10.10 FOR ITA NO.5289/M/2014 M/S. PRAVIN SAWANT 2 APPEARANCE ON 08.11.10. SINCE NONE APPEARED ON BEH ALF OF THE ASSESSEE, THE AO ISSUED SHOW CAUSE FOR PENALTY UNDER SECTION 271( 1)(B) OF THE ACT. THE AO THEREAFTER COMPLETED THE ASSESSMENT EX-PARTE UNDER SECTION 144 READ WITH SECTION 147 OF THE ACT. IN THE PENALTY PROCEEDINGS UNDER SECTION 271(1)(B) OF THE ACT, AFTER HEARING THE LD. REPRESENTATIVE OF TH E ASSESSEE, THE AO IMPOSED PENALTY OF RS.10,000/- FOR DEFAULT IN APPEARING BEF ORE THE AO. THE LD. CIT(A) CONFIRMED THE SAID PENALTY. THE ASSESSEE IS, THUS, IN APPEAL BEFORE US. 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND HAVE ALS O GONE THROUGH THE RECORDS. THE LD. A.R. OF THE ASSESSEE HAS BROUGHT O UR ATTENTION TO PAGE-1 OF THE PAPER BOOK WHICH IS THE COPY OF THE NOTICE DATED 08 .01.10 UNDER SECTION 142(1) OF THE ACT ISSUED BY AO WARD 26(2)(4), CHARNI ROAD, MUMBAI. THE ASSESSEE REPLIED TO THE SAID NOTICE VIDE LETTER DATED 18.01. 10 AND STATED THAT HE HAS FILED HIS INCOME TAX RETURN WITH THE AO OF WARD 3(4) KALY AN. THE ASSESSEE HAS FURTHER INVITED OUR ATTENTION TO COPY OF NOTICE DAT ED 24.03.10 ISSUED UNDER SECTION 148 OF THE ACT BY ITO WARD 26(2)(4) MUMBAI. THE ASSESSEE HAS ALSO INVITED OUR ATTENTION TO NOTICE UNDER SECTION 142(1 ) OF THE ACT DATED 12.05.10 ISSUED BY ITO WARD 3(4), KALYAN TO WHICH THE ASSESS EE HAS FILED A REPLY DATED 08.12.10 RECEIVED UNDER THE STAMP DATED 14.12.10 BY THE ITO KALYAN. IN THE SAID REPLY, THE ASSESSEE HAS NOT ONLY EXPLAINED THE REASONS FOR HIS NON APPEARANCE BEFORE THE AO ON EARLIER DATES STATING T HAT THE CONCERNED C.A. NAMELY MR. RAJESH SHAH WAS NOT AVAILABLE FOR LONG T IME AND THEREFORE THE MATTER WAS ENTRUSTED TO ANOTHER C.A. NAMELY MR. PRA DEEP GUPTA. IT WAS ALSO EXPLAINED THAT THE RETURN OF INCOME WAS FILED WITH THE ITO KALYAN AND THE SAME WAS PROCESSED UNDER SECTION 143(1). IT WAS AL SO STATED THAT AFTER THE END OF THE RELEVANT ASSESSMENT YEAR, NO RECOURSE CAN BE TAKEN UNDER SECTION 142(1) OF THE ACT. HOWEVER, THE PROPER COURSE WAS TO ISSU E THE NOTICE UNDER SECTION 148 OF THE ACT AND THAT THE ASSESSEE WAS READY TO C OMPLY AND COOPERATE WITH THE PROCEEDINGS UNDER SECTION 148 ON THE SAME BEING INITIATED. WE FIND THAT AFTER THE RECEIPT OF THE REPLY DATED 08.12.10, THE AO PASSED THE ASSESSMENT ITA NO.5289/M/2014 M/S. PRAVIN SAWANT 3 ORDER DATED 27.12.10 COMPLETING THE ASSESSMENT UNDE R SECTION 144 READ WITH SECTION 147 OF THE ACT. A PERUSAL OF THE ASSESSMEN T ORDER IN QUESTION REVEALS THAT THE AO HAS RELIED UPON THE NOTICE ISSUED UNDER SECTION 148 BY THE ITO OF WARD NO.26(2)(4), MUMBAI, WHEREAS, THE ASSESSMENT H AS BEEN COMPLETED BY THE AO WARD 3(4) KALYAN. THE ASSESSEE HAS EXPLAINE D THE REASON FOR NON APPEARANCE BEFORE THE AO AND THE CIRCUMSTANCES WHIC H WERE BEYOND HIS CONTROL AND HAS ALSO OBJECTED TO THE REOPENING OF T HE ASSESSMENT VIDE LETTER DATED 14.12.10. UNDER SUCH CIRCUMSTANCES, WE DO NO T FIND IT A CASE OF WILLFUL DEFAULT ON THE PART OF ASSESSEE FOR NON APPEARANCE BEFORE THE AO ON THE RELEVANT DATE. THE LEVY OF PENALTY UNDER SECTION 2 71(1)(B) IN THIS CASE, IN OUR VIEW, IS NOT JUSTIFIED AND THE SAME IS ACCORDINGLY ORDERED TO BE DELETED. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS HER EBY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 08.03.2016. SD/- SD/- (RAJESH KUMAR) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 11.03.2016. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.