HEENA N. KANAKIA, MUMBAI V. ACIT CC 32, MUMBAI

ITA 5492/MUM/2013

• Counselvise Citation: 549219914 RSA 2013
• Duration Of Justice: 1 year(s) 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 03-02-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 16-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JEETENDRA KUMAR
• Assessee Lawyers: GOVIND JAVERI
• Keywords: Reasonable cause
• Section: 273B

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES H MUMBAI . . , . . , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI R.C.SHARMA , ACCOUNTANT MEMBER ITA NO.5492/MUM/2013(A.Y. 2009-10) HEENA N. KANAKIA, 701/702, QUARTER DECK, J.P.ROAD, VERSOVA, ANDHERI (E), MUMBAI 400 061 PAN:ANTPK4556B (APPELLANT ) VS. THE ACIT, CC-32, MUMBAI. (RESPONDENT) APPELLANT BY : SHRI GOVIND JAVERI RESPONDENT BY : SHRI JE ETENDRA KUMAR. DATE OF HEARING : 03/02/2015 DATE OF PRONOUNCEMENT : 03 /02/2015 ORDER PER I.P.BANSAL, J.M: THIS IS AN APPEAL FILED BY THE ASSESSEE AND IT IS DIRECTED AGAINST ORDER PASSED BY LD. CIT(A)-41, MUMBAI DATED 3/5/2013 FOR ASSESSM ENT YEAR 2009-10. GROUNDS OF APPEAL READ AS UNDER:- 1. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FAC TS IN UPHOLDING THE RODER PASSED BY THE ASSESSING OFFICER U/S. 271(1)(B) OF T HE INCOME-TAX ACT, 1961 WHICH IS INVALID AND BAD IN LAW. 2. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN SUSTAINING THE PENALTY OF RS.30,000/- LEVIED BY THE ASSESSING OFFICER FOR THE ALLEGED FAILURE OF APPELLANT IN NOT RESPONDING TO THE VARIOUS NOTICES ISSUED BY THE ASSESSING OFFICER DURING THE COURSE OF THE ASSESSMENT PROCEE DINGS. ITA NO.5492/MUM/2013(A.Y. 2009-10) 2 3. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACT S IN NOT APPRECIATING THAT THERE WAS REASONABLE CAUSE FOR NOT COMPLYING WITH T HE NOTICES ISSUED BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 2. IN THE PRESENT CASE PENALTY UNDER SECTION 271(1) (B) IS LEVIED FOR DEFAULT OF NON-ATTENDANCE TO THE VARIOUS NOTICES ISSUED BY AO, WHICH ARE LISTED AT PAGE-2 OF THE ORDER PASSED BY LD. CIT(A). IT WAS SUBMITTED T HAT FOR SIMILAR DEFAULT OF THE ASSESSEE A PENALTY OF RS.70,000/- ALSO IMPOSED IN RESPECT OF A.Y 2004-05 TO 2007-08 AND TRIBUNAL AFTER CONSIDERING THE SUBMISSI ONS OF BOTH THE PARTIES HAS ARRIVED AT A CONCLUSION THAT LEVY OF PENALTY WAS SA VED BY SECTION 273B. FOR THIS PURPOSE RELIANCE HAS BEEN PLACED ON THE DECISION OF TRIBUNAL DATED 21/11/2014 IN ITA NOS. 5206 TO 5209/MUM/2013, COPY OF THIS ORDER IS PLACED AT PAGES 9 TO 15 OF THE PAPER BOOK. IN RESPECT OF A.Y 2008-09 THE T RIBUNAL HAS FOLLOWED THE AFOREMENTIONED DECISION AND REFERENCE IN THIS REGAR D WAS MADE TO ORDER DATED 10/12/2014 PASSED IN ITA NO.5419/MUM/2013, COPY OF WHICH IS ALSO FILED AT PAGES 17 TO 19 OF THE PAPER BOOK. IT WAS FURTHER S UBMITTED THAT FOR ASSESSMENT YEAR 2003-04 ALSO VIDE ORDER DATED 23/1/2015 TRIBUNAL HA S DELETED THE PENALTY FOLLOWING EARLIER ORDERS AND REFERENCE WAS MADE TO ORDER PASSED IN ITA NO.5299/MUM/2013, COPY OF WHICH IS FILED AT PAGES 2 0 TO 23 OF THE PAPER BOOK. 2.1 IT WAS SUBMITTED THAT FOR SIMILAR DEFAULT ON SI MILAR DATES THE IMPUGNED PENALTY HAS BEEN LEVIED AND, THUS, IT IS COVERED B Y THE AFOREMENTIONED DECISIONS OF THE TRIBUNAL IN ASSESSEES OWN CASE. 3. THOUGH LD. DR COULD NOT CONTROVERT THE AFOREMEN TIONED ARGUMENTS OF LD. AR BUT HE RELIED UPON ORDER PASSED BY AO AND LD. CI T(A). ITA NO.5492/MUM/2013(A.Y. 2009-10) 3 4. AFTER CAREFUL CONSIDERATION TO THE ARGUMENTS OF BOTH THE PARTIES WE FOUND THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE AFOREMENTIONED DECISIONS OF THE TRIBUNAL IN ASSESSEES OWN CASE IN RESPECT O F A.Y 2004-05 TO 2008-09 AND 2003-04. FOR THE SAKE OF COMPLETENESS THE RELEVANT OBSERVATIONS OF THE TRIBUNAL FROM THE AFOREMENTIONED ORDER DATED 21/11/2014 ARE REPRODUCED BELOW: 4.1 THE STAND OF THE ASSESSEE, RIGHT FROM ASSESSME NT STAGE, IS THAT THE ASSESSEE IS UNABLE TO FURNISH DETAILS AS SUCH DETAILS WERE KEPT AT THE OFFICE SITUATED IN X-CUBE BUILDING, WHICH WAS UNDER DISPUTE AND SEIZED BY CIVIL COURT, DINDOSHI (BORIVILI DVN.). THEREFORE, THE ASSESSEE IS UNABLE TO PRODUCE THE DETAILS. EVEN BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) INSPITE OF VARIOUS DIFFICULTIES, THE ASSESSEE FILED SUCH DETAILS BUT THE SAME WERE DECLINED ON THE GROUND THAT THE ASSESSING OFFI CER HAD ALREADY PROVIDED SUFFICIENT OPPORTUNITY TO FILE THESE DETAILS. WE ARE OF THE VI EW THAT ATLEAST THE LD. COMMISSIONER OF INCOME TAX (APPEALS) WAS EXPECTED TO EXAMINE THESE DETAILS ALONGWITH CLAIMED DIFFICULTIES FACED BY THE ASSESSEE AND THEN SHOULD HAVE REACHED TO A CONCLUSION. HOWEVER, THE LD. COMMISSIONER OF INCOME TAX (APPEALS), ON TH E BASIS OF OBSERVATION MADE IN THE ASSESSMENT ORDER PROCEEDED TO DISPOSE OF THE APPEAL . THIS CLAIM OF THE ASSESSEE IS EVEN EVIDENT FROM PARA-7 (PAGE-3) OF THE WRITTEN SUBMISS ION REPRODUCED IN THE IMPUGNED ORDER. THE DIFFICULTIES OF THE ASSESSEE WERE ANALYZ ED AND APPRECIATED BY THE TRIBUNAL AS HAS BEEN REPRODUCED (SUPRA), IN ITS ORDER DATED 18/ 10/2012 WHEREIN, THE APPEAL WAS ALLOWED FOR STATISTICAL PURPOSES DIRECTING THE ASSE SSING OFFICER TO READJUDICATE AFTER PROVIDING DUE OPPORTUNITY TO THE ASSESSEE. 5. THE WORD REASONABLE CAUSE IN SECTION 273B MUST NECESSARILY HAVE A RELATION TO THE FAILURE ON THE PART OF THE ASSESSEE TO COMPLY WITH THE REQUIREMENT OF LAW WHICH HE/SHE HAD FAILED TO COMPLY WITH. IN CASE OF DELAY IN COMP LIANCE, THE CAUSE SHOWN BY THE ASSESSEE FOR SUCH DELAY HAS TO BE SEEN WHETHER THER E WAS A GOOD AND SUFFICIENT CAUSE FOR SUCH NONCOMPLIANCE. IF THE CAUSE SHOWN IS SUCH AS TO EXPLAIN THE DELAY CONSTITUTE A GOOD REASON FOR NON-COMPLIANCE, NO PENALTY WOULD BE LEVIABLE. HOWEVER, IN CASES WHERE THE CAUSE SHOWN IS SUCH WHICH IS ONLY TO MITIGATE T HE GRAVITY OF NON-COMPLIANCE SUCH A CAUSE CANNOT BE EXTRAPOLATED AND TREATED AS BEING A GOOD CAUSE. A CONSTRUCTION WHICH WOULD PRESERVE THE EXERCISE OF THE POWER IN FAVOUR OF THE ASSESSEE, UNDER THE CIRCUMSTANCES, WHICH WARRANT IT IS TO BE PREFERRED TO A CONSTRUCTION WHICH WOULD RESULT IN THE LIKELIHOOD OF DENIAL OF RELIEF. REASONABLE CAUS E IS NOT SUSCEPTIBLE OF A CLEAR AND PRECISE DEFINITION BUT AS APPLIED TO HUMAN ACTION W HICH WOULD CONSTRAIN A PERSON OF AVERAGE INTELLIGENCE AND ORDINARY PRUDENCE ACTING U NDER NORMAL CIRCUMSTANCES. THE ASSESSEE, BEING A LADY, WHO WAS FACING THE CLAIMED DIFFICULTIES, THEREFORE, EVEN UNDER THE FACTS AVAILABLE ON RECORD THE ASSESSING OFFICER WAS EXPECTED NOT TO BE SO TECHNICAL IN IMPOSING THE PENALTY, MORE SPECIFICALLY WHEN THE DO CUMENTS, AS CALLED FOR, WERE UNDER DISPUTE AND SEIZED BY THE DIRECTION OF THE COURT. T HEREFORE, THE ASSESSEE COULD NOT FILE THESE DETAILS. WE APPRECIATE THAT THE LD. COMMISSIO NER OF INCOME TAX (APPEALS), CONSIDERING THE FACTS, ATLEAST GAVE PART RELIEF TO THE ASSESSEE. IN THE PRESENT APPEALS THOUGH THERE IS A TECHNICAL BREACH ON THE PART OF T HE ASSESSEE, STILL, KEEPING IN VIEW THE TOTALITY OF THE FACTS AND THE CIRCUMSTANCES, BY TAK ING A LENIENT VIEW, THE PENALTY ITA NO.5492/MUM/2013(A.Y. 2009-10) 4 IMPOSED/SUSTAINED IN EACH CASE IS DELETED. WE ARE O BSERVING HERE THAT OUR CONCLUSION IS BASED UPON PECULIAR FACTS OF THE PRESENT APPEALS/DI FFICULTIES FACED BY THE ASSESSEE, THEREFORE, MAY NOT BE QUOTED AS A PRECEDENT. 6. FINALLY, ALL THE APPEALS OF THE ASSESSEE ARE ALL OWED. 5. IN VIEW OF ABOVE DISCUSSION WE ALLOW THE APPEAL FILED BY THE ASSESSEE AND THE IMPUGNED PENALTY IS DELETED. ORDER PRONOUNCED IN THE OPEN COURT ON 03/02/2015 ! ' #$% 03/02/2015 & ' SD/- SD/- ( . . /R.C.SHARMA ) ( . . / I.P. BANSAL ) /ACCOUNTANT MEMBER / JUDICIAL EMBER MUMBAI; #$ DATED 03/02/2015 ()* ()* ()* ()* +*!) +*!) +*!) +*!) / COPY OF THE ORDER FORWARDED TO : 1. ,- / THE APPELLANT 2. (.,- / THE RESPONDENT. 3. / ( ) / THE CIT(A)- 4. / / CIT 5. *0& ()$ , , / DR, ITAT, MUMBAI 6. &1 2 / GUARD FILE. $ $ $ $ / BY ORDER, .*) () //TRUE COPY// 3 33 3 / 4 4 4 4 5 5 5 5 (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . $ . ./ VM , SR. PS