Upendra Kumar (Indl), Hyd, Hyderabad V. DCIT, Central Circle-7, Hyd, Hyderabad

ITA 547/HYD/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 91776 (ITAT-HYDERABAD)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 05-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J SIRI KUMAR
• Assessee Lawyers: JAINIK
• Keywords: Search and seizure; Opportunity of being heard
• Section: 142(1); 132; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B : HYDERABAD BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, ACCOUNTANT MEMBER ITA.NO. A.Y. APPELLANT RESPONDENT 535/H/2015 2003 - 04 MR. UPENDER KUMAR (IND), HYDERABAD. PAN ADXPA3145N DCIT, CENTRAL CIRCLE-7 HYDERABAD. 539/H/2015 2007 - 08 540/H/2015 2008 - 09 546/H/2015 2007 - 08 547/H/2015 2008 - 09 FOR ASSESSEE : MR. JAINIK FOR REVENUE : MR. J. SIRI KUMAR DATE OF HEARING : 16.07.2015 DATE OF PRONOUNCEMENT : 22 .07.2015 ORDER PER BENCH : OUT OF THESE FIVE APPEALS FILED BY THE ASSESSEE, THREE APPEALS BEING ITA.NO.535, 539 AND 540/HYD/201 5 ARE DIRECTED AGAINST THE COMMON ORDER OF THE LD. CI T(A)-I, GUNTUR DATED 18.02.2015 WHEREBY HE CONFIRMED THE PENALTY OF RS.10,000 EACH IMPOSED BY THE A.O. UNDER SECTION 271(1)(B) OF THE I.T. ACT, 1961 FOR A.YS. 2 003-04, 2007-08 AND 2008-09 WHILE REMAINING TWO APPEALS ARE DIRECTED AGAINST THE COMMON ORDER OF LD. CIT(A)-I, GUNTUR DATED 18.02.2015 WHEREBY HE CONFIRMED THE PENALTY O F RS.5000 EACH IMPOSED BY THE A.O. UNDER SECTION 271F OF THE I.T. ACT, 1961 FOR A.YS. 2007-08 AND 2008-09. 2 ITA.NOS.535, 539, 540, 546 & 547/HYD/2015 MR. UPENDRA KUMAR (IND.), HYDERABAD 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUAL. A SEARCH AND SEIZURE ACTION UNDER SECTI ON 132 WAS CONDUCTED IN THE GOUD GROUP OF CASES ON 15.09.2 008. DURING THE COURSE OF SAID ACTION, CERTAIN INCRIMINA TING MATERIAL PERTAINING TO THE ASSESSEE WAS FOUND AND S EIZED. CONSEQUENTLY, NOTICES UNDER SECTION 153C WERE ISSUE D BY THE A.O. ON 08.10.2010 REQUIRING THE ASSESSEE TO FU RNISH HIS RETURNS OF INCOME, INTER ALIA, FOR THE YEARS UN DER CONSIDERATION WITHIN 15 DAYS OF THE RECEIPT OF THE NOTICES. NO RETURNS OF INCOME HOWEVER, WERE FILED BY THE ASS ESSEE IN RESPONSE TO THE SAID NOTICES EITHER WITHIN THE S TIPULATED TIME OR EVEN BEFORE THE COMPLETION OF ASSESSMENTS B Y THE A.O. UNDER SECTION 144 READ WITH SECTION 153C ON 30.12.2010. FOR THIS NON-COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED UNDER SECTION 153C, PENALTY PROCEEDING UNDER SECTION 271F WERE INITIATE D BY THE A.O. AND SINCE THE ASSESSEE FAILED TO FURNISH A NY EXPLANATION IN RESPONSE TO THE SHOW CAUSE NOTICES I SSUED DURING THE COURSE OF THE SAID PENALTY PROCEEDINGS, THE A.O. PROCEEDED TO IMPOSE PENALTY OF RS.5000 UNDER SECTION 271F, INTER ALIA, FOR A.YS. 2007-08 AND 200 8-09. 2.1. DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR THE YEARS UNDER CONSIDERATION, NOTICES ISSUED B Y THE A.O. UNDER SECTION 142(1) AND 143(2) WERE ALSO REMA INED UN-COMPLIED WITH BY THE ASSESSEE AS A RESULT OF WHI CH, THE A.O. WAS LEFT WITH NO OPTION BUT TO COMPLETE THE ASSESSMENTS FOR THE YEARS UNDER CONSIDERATION TO TH E BEST OF HIS JUDGMENT UNDER SECTION 144 READ WITH SECTION 153C 3 ITA.NOS.535, 539, 540, 546 & 547/HYD/2015 MR. UPENDRA KUMAR (IND.), HYDERABAD OF THE ACT. FOR THIS NON-COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED UNDER SECTION 142(1) AND 143(2) OF THE ACT, THE A.O. INITIATED PENALTY PROCE EDINGS UNDER SECTION 271(1)(B) OF THE ACT AND SINCE THE AS SESSEE FAILED TO OFFER ANY EXPLANATION IN RESPONSE TO THE SHOW CAUSE NOTICES ISSUED DURING THE COURSE OF PENALTY PROCEEDINGS, PENALTY OF RS.10000 PER YEAR WAS IMPOS ED BY THE A.O. UNDER SECTION 271(1)(B) FOR ALL THE THREE YEARS UNDER CONSIDERATION I.E., A.Y. 2003-04, 2007-08 AND 2008-09. 2.2. THE PENALTIES IMPOSED BY THE A.O. UNDER SECTION 271F FOR A.YS. 2007-08 AND 2008-09 AND UNDE R SECTION 271(1)(B) FOR A.YS. 2003-04, 2007-08 AND 20 08-09 WERE CHALLENGED BY THE ASSESSEE IN THE APPEALS FILE D BEFORE THE LD. CIT(A). THERE WAS, HOWEVER, NO COMPLIANCE O N THE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY THE L D. CIT(A) FIXING THE APPEALS OF THE ASSESSEE FOR HEARING ON T WO OCCASIONS. KEEPING IN VIEW OF THIS NON-COMPLIANCE O N THE PART OF THE ASSESSEE, THE LD. CIT(A) PROCEEDED TO D ISPOSE OF THE APPEALS OF THE ASSESSEE EXPARTE CONFIRMING T HE PENALTIES IMPOSED BY THE A.O. UNDER SECTION 271F AN D 271(1)(B) FOR THE YEARS UNDER CONSIDERATION. AGGRIE VED BY THE ORDERS OF THE LD. CIT(A), THE ASSESSEE HAS PREF ERRED THESE APPEALS BEFORE THE TRIBUNAL. 3. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL ON REC ORD. IT IS OBSERVED THAT THE APPEALS FILED BY THE ASSESSEE FOR THE 4 ITA.NOS.535, 539, 540, 546 & 547/HYD/2015 MR. UPENDRA KUMAR (IND.), HYDERABAD YEARS UNDER CONSIDERATION CHALLENGING THE PENALTIES IMPOSED BY THE A.O. UNDER SECTION 271F AND 271(1)(B ) WERE DISMISSED BY THE LD. CIT(A) BY HIS IMPUGNED OR DERS FOR THE FOLLOWING REASONS : DURING THE COURSE OF APPELLATE PROCEEDINGS, THE CA SE FOR FIXED FOR HEARING ON 03.02.2015. A LETTER RECEI VED FROM THE OFFICE OF DEVA & CO., REQUESTING FOR LONG ADJOURNMENT DUE TO SRI DAVARAJU REDDY, CA, DEVA & CO., IS CONTESTING FOR, VICE PRESIDENT AND HE IS BU SY. THEREFORE, THE CASE WAS ADJOURNED TO 18.02.2015. THIS IS A SIMPLE CASE OF PENALTY LEVIED FOR NON- APPEARANCE. THE APPELLANT HAS FAILED TO COOPERATE I N ANY MANNER WITH REGARD TO SUBMISSION OF INFORMATION , THE UNDERSIGNED COMPLETE THE APPELLATE ORDER EXPART E BASING ON THE INFORMATION AVAILABLE ON RECORD. SINC E ALL THE ASST. YEARS FROM 2003-04 TO 2009-10, THE ISSUES ARE SIMILAR, SO I HAVE MADE THE COMMON APPELLATE ORDER FOR THE SAKE OF CONVENIENCE. 4. AT THE TIME OF HEARING BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE ABOVE REASONS GIVEN BY THE LD. CIT(A) FOR DISMISSIN G THE APPEALS OF THE ASSESSEE EXPARTE AND SUBMITTED THAT ONLY TWO OPPORTUNITIES OF HEARING WERE GIVEN BY THE LD. CIT(A) FIXING THE APPEALS OF THE ASSESSEE FOR HEARING ON 03.02.2015 AND 18.02.2015. HE HAS SUBMITTED THAT APPLICATION WAS DULY FILED BY THE ASSESSEE SEEKING ADJOURNMENT OF THE HEARING FIXED ON 03.02.2015 AND IT WAS ONLY ON 13.02.2015 THAT THERE WAS NON-APPEARANC E ON THE PART OF THE ASSESSEE AS HIS AUTHORISED REPRESENTATIVE COULD NOT REMAIN PRESENT FOR SOME UNAVOIDABLE REASONS. HE HAS CONTENDED THAT THE LD. CIT(A) THUS HAS DISMISSED THE APPEALS OF THE ASSESS EE 5 ITA.NOS.535, 539, 540, 546 & 547/HYD/2015 MR. UPENDRA KUMAR (IND.), HYDERABAD EXPARTE WITHOUT GIVING PROPER AND SUFFICIENT OPPORT UNITY OF BEING HEARD AND SINCE THE ASSESSEE WAS NOT WELL DURING THE COURSE OF PENALTY PROCEEDINGS, HE HAS NOT GOT A N EFFECTIVE OPPORTUNITY TO OFFER HIS EXPLANATION FOR NON- COMPLIANCE TO THE NOTICES ISSUED UNDER SECTION 153C AS WELL AS 142(1) AND 143(2). HE HAS URGED THAT ONE MO RE OPPORTUNITY MAY THEREFORE BE GIVEN TO THE ASSESSEE TO PUT FORTH HIS CASE BY OFFERING HIS EXPLANATION FOR SUCH NON- COMPLIANCE. 5. KEEPING IN VIEW OF THE FACTS OF THE CASE AND TH E SUBMISSIONS MADE BY THE LD. COUNSEL FOR THE ASSESSE E, WE CONSIDER IT FAIR AND PROPER AND IN THE INTEREST OF JUSTICE TO GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE TO OFF ER HIS EXPLANATION FOR THE NON-COMPLIANCE OF NOTICES UNDER SECTION 153C AS WELL AS 142(1) AND 143(2). ACCORDIN GLY, THE IMPUGNED ORDERS OF THE LD. CIT(A) CONFIRMING TH E PENALTIES IMPOSED BY THE A.O. UNDER SECTION 271F AN D 271(1)(B) FOR THE YEARS UNDER CONSIDERATION ARE SET ASIDE AND THE MATTER IS REMITTED BACK TO HIM FOR DISPOSIN G OF THE APPEALS OF THE ASSESSEE ON MERIT, AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD. AS UNDER TAKEN BY THE LD. COUNSEL FOR THE ASSESSEE AT THE TIME OF HEARING, THE ASSESSEE SHALL COMPLY WITH THE NOTICES ISSUED B Y THE LD. CIT(A) AND EXTEND FULL COOPERATION IN ORDER TO ENABLE THE LD. CIT(A) TO DISPOSE OF THE MATTER EXPEDITIOUS LY. 6. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 6 ITA.NOS.535, 539, 540, 546 & 547/HYD/2015 MR. UPENDRA KUMAR (IND.), HYDERABAD ORDER PRONOUNCED IN THE OPEN COURT ON 22.07.201 5. SD/- SD/- (SAKTIJIT DEY) (P.M. JAGTAP) JUDICIAL MEMBER ACOUNTANT MEMBER HYDERABAD, DATED 22 ND JULY, 2015 VBP/- COPY TO : 1. MR. UPENDRA KUMAR (IND.), HYDERABAD C/O. M/S. CH. G. KRISHNA MURTHY & CO., CHARTERED ACCOUNTANTS, 133/1, PRENDARGHAST ROAD, SECUNDERABAD500 003. 2. THE DCIT, CENTRAL CIRCLE - 7 , HYDERABAD. 3. CIT (A) - I , GUNTUR 7. PR. CIT, CENTRAL, HYDERABAD 8. D.R. ITAT B BENCH, HYDERABAD. 9. GUARD FILE