J. PATEL & CO., MUMBAI V. I.T.O.14(3)(2), MUMBAI

ITA 5476/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 79453 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: J
• Next Hearing Date: 03-07-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 30-08-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: MAYUR A SHAH
• Section: 143(3); 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER ./ ITA NO. 5473/M/2012 (AY: 2003 - 2004) ./ ITA NO. 5474/M/2012 (AY: 2004 - 2005) ./ ITA NO. 5475/M/2012 (AY: 2005 - 2006) ./ ITA NO. 5476/M/2012 (AY: 2006 - 2007) J. PATEL & CO, 164, DADAR GALLI, M.J. MARKET, MUMBAI - 400002. / VS. ITO - 14(3)(2), EARNEST HOUSE, 6 TH FLOOR, NARIMANPOINT, MUMBAI - 21. ( / APPELLANT) .. ( / RESPONDENT ) / ASSESSEE BY : SHRI MAYUR A. SHAH / REVENUE BY : SHRI MAURYA PRATAP, DR / DATE OF HEARING : 03 .7.2014 / DATE OF PRONOUNCEMENT : 18 .7.2014 / O R D E R PER D. KARUNAKARA RAO, AM: THERE ARE FOUR APPEALS UNDER CONSIDERATION. ALL THESE APPEALS ARE FILED BY THE ASSESSEE AGAINST THE COMMON ORDER OF THE CIT (A) - 25, MUMBAI DATED 1.6.2012 FOR THE AYS 2003 - 04 TO 2006 - 07. SINCE, THE GROUNDS RAISED IN ALL THE FOUR APPEALS ARE IDENTICAL, THEREFORE, FOR THE SAKE OF CONVENIENCE, THEY ARE CLUBBED, HEARD COMBINEDLY AND DISPOSED OF IN THIS CONSOLIDATED ORDER. APPEAL WISE AND GROUND WISE ADJUDICATION IS GIVEN IN THE FOLLOWING PARAS. 2. FIRSTLY WE SHALL TAKE UP THE APPEAL ITA NO.5473/M/2012 FOR THE AY 2003 - 2004 AND THE ASSESSEE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: 1. THE LD CIT (A) ERRED IN HOLDING THAT THE ITO WAS JUSTIFIED IN LEVYING PENALTY U/S 271(1)(B) OF THE ACT. IT IS PRAYED THAT THE PENALTY LEVIED AT RS. 30,000/ - BE DIRECTED TO BE DELETED. 2. THE LD CIT (A) ERRED IN HOLDING THAT THE ASSESSMENT IS EFFECTIVELY COMPLETED U/S 144 R.W.S 143(3) OF THE ACT EVEN THOUGH THE ASSESSMENT ORDER INDICATES THAT THE ORDER IS PASSED U/S 143(3) READ WITH SECTION 147 OF THE ACT. 3. DURING THE PROCEEDINGS BEFORE US, AT THE OUTSET, SHRI MAYUR A. SHAH, LD COUNSEL F OR THE ASSESSEE MENTIONED THAT ALL THE FOUR APPEALS UNDER CONSIDERATION ARE FILED AGAINST THE ORDER OF THE CIT (A), WHO CONFIRMED THE PENALTY LEVIED BY THE AO U/S 271(1)(B) OF THE ACT. FOR EACH ASSESSMENT YEAR, AO LEVIED PENALTY OF RS. 30,000/ - @ RS. 10,0 00/ - PER DEFAULT SPECIFIED IN THE SAID SECTION. AO LEVIED THE PENALTY FOR DEFAULT OF THE ASSESSEE FOR NOT COMPLYING THE NOTICES ISSUED ON 24.9.2010, 15.10.2010 AND 18.11.2010. THE OFFENCES ARE COMMON IN ALL THE FOUR ASSESSMENT YEARS UNDER CONSIDERATION. CIT (A) CONFIRMED ALL THE PENALTIES IN ALL THE ASSESSMENT YEARS. IT IS THE OPINION OF THE CIT (A) THAT THE AO LEVIED PENALTY AS PER THE PROVISIONS OF THE ACT AND THE ASSESSEE SHOULD NOT BE ALLOWED TO ENRICH OR BENEFITED UNJUSTLY FOR AN ACT OF ASSESSEES OWN WRONGS THAT IS TO SAY NON - COMPLIANCE OR NON - HEARING TO NOTICES. CIT (A) IS OF THE OPINION THAT THE ASSESSEE DOES NOT WARRANT ANY LENIENT APPROACH. AGGRIEVED WITH THE SAME, ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL FOR ALL THE ASSESSMENT YEARS. 4. T O START WITH, IN CONNECTION WITH THE SAID NOTICES ON THE THREE OCCASIONS, THE FINDINGS OF THE AO IN PENALTY ORDERS AND THE CONTENTION OF THE ASSESSEE ARE MENTIONED AS UNDER: DATE OF NOTICE DATE OF HEARING FINDINGS OF THE AO IN PENALTY ORDER ASSESSEES CONT ENTION 24.9.2010 14.10.2010 ASSESSEE VIDE ORDER DATED 14.10.2010 SOUGHT ADJOURNMENT AND HEARING ADJOURNED TO 27.10.2010. PAGE 1, PARA 2 OF PENALTY ORDER NOTICE COMPLIED WITH BY SEEKING AND ADJOURNMENT. 15.10.2010 27.10.2010 NO COMPLIANCE (PAGE 1, PARA2) ATTENDED AND ORAL REQUEST FOR ADJOURNMENT. PLEASE SEE AFFIDAVIT (PAGE 43 AND 44 OF PB AND WRITTEN SUBMISSIONS TO CIT (A) PAGE 1 AND 2 OF PB 18.11.2010 29.11.2010 NO COMPLIANCE (PAGE 1 PARA2) ORAL REQUEST FOR ADJOURNMENT AND DETAILS CALLED FOR SUBMITTED ON 16.12.201 0 (PAGE 2 PARA 5 OF PENALTY ORD ER) 5. FROM THE ABOVE, IT IS EVIDENT THAT THE ASSESSEE SOUGHT ADJOURNMENT IN RESPONSE TO THE NOTICES DATED 24.9.2010 AND THE HEARING WAS ACCORDINGLY ADJOURNED TO 27.10.2010. CONSIDERING THE INTENTION OF THE ASSESSEE IN SEEKING ADJOURNMENT, WE FIND THE ASSESSEE DISPLAYED OBEDIENCE TO THE NOTICE, THEREFORE, IN OUR OPINION THE PENALTY IS NOT SUSTAINABLE FOR THE ALLEGED DEFAULT TO THE NOTICE DATED 24.9.2010. AFTER HEARING THE PARTIES, WE FIND THAT THIS DEFAULT D OES NOT REQUIRE FOR LEVY OF PENALTY U/S 271(1)(B) OF THE ACT. HOWEVER, FOR THE DEFAULTS TO THE NOTICES DATED 15.10.2010 AND 18.10.2010, IT IS AN ADMITTED POSITION THAT THERE IS NO COMPLIANCE. IT IS THE CONTENTION OF THE ASSESSEE THAT ORAL REQUEST WAS MAD E FOR ADJOURNMENT AND IN SUPPORT OF THE SAME, ASSESSEE RELIES ON THE WRITTEN SUBMISSIONS MADE TO THE CIT (A). HOWEVER, THERE IS NO ADJOURNMENT LETTER FILED BEFORE THE AO. THEREFORE, ON HEARING BOTH THE PARTIES, WE ARE OF THE OPINION THAT THE PENALTY FOR THIS DEFAULT IS SUSTAINABLE. TO THAT EXTENT, THE ORDER OF THE CIT (A) DOES NOT CALL FOR ANY INTERFERENCE. ACCORDINGLY, GROUNDS RAISED BY THE ASSESSEE ARE PARTLY ALLOWED . ./ ITA NO. 5474/M/2012 (AY: 2004 - 2005) ./ ITA NO. 5475/M/2012 (AY: 2005 - 2006) ./ ITA NO. 5476/M/2012 (AY: 2006 - 2007) 6. ALL THE ABOVE THREE APPEALS ARE FILED BY THE ASSESSEE AGAINST THE COMMON ORDER OF THE CIT (A) - 25, MUMBAI DATED 1.6.2012 FOR THE AYS 2004 - 05 TO 2006 - 07. 7. THE GROUNDS RAISED IN ALL THESE THREE APPEALS ARE EXACTLY IDENTICAL TO THAT OF THE AY 2003 - 04. CONSIDERING THE COMMONALITY OF THE ISSUES, DEFAULTS, EXPLANATION, SUBMISSIONS AND OTHER EVIDENCES PLACED BEFORE US, WE ARE OF THE OPINION THAT THE ABOVE CITED CONCLUSIONS ARE EQUALLY APPLICAB LE TO THE REST OF THE APPEALS FOR THE ITA NO.5474/M/2012, ITA NO.5475/M/2012 AND ITA NO.5476/M/2012 FOR THE AYS 2004 - 05, 2005 - 06 AND 2006 - 07 RESPECTIVELY. ACCORDINGLY, GROUNDS RAISED BY THE ASSESSEE IN ALL THESE THREE APPEALS ARE PARTLY ALLOWED . 8. IN TH E RESULT, ALL THE FOUR APPEALS FILED BY THE ASSESSEE ARE PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH JULY, 2014. SD/ - SD/ - (SANJAY GARG) (D. KARUNAKARA RAO ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; 18 /07/2014 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI