Shri Prabhakar Koche, Indore V. THE DCIT (CENTRAL)-I, Indore

ITA 56/IND/2017

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 5746 (ITAT-INDORE)
• Duration Of Justice: 1 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2017
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 06-02-2017
• Court: TRIBUNAL
• Department Lawyers: M JAVED
• Keywords: Reasonable cause; Block assessment
• Section: 143(3); 142(1); 153A; 139

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI C.M. GARG, JUDICIAL MEMBER, AND SHRI O.P. MEENA, ACCOUNTANT MEMBER ITA NOS.56 TO 62/IND/2017 ASSESSMENT YEARS: 2008-09 TO 2014-15 P RABHAKARKO CHE,C/O, R.L. RAWKA& CO. 171, NETAJIBUBHASHMARG, INDORE(MP) / VS. DCIT (CENTRAL) - 1 INDORE (APPELLANT ) (REVENUE ) P.A. NO. AJUPK5479Q / APPELLANT BY SHRIKAMLESH JAIN &SHRISATISHRAWKA, ADV. / RESPONDENT BY SHRI M. JAVED, DR DATE OF HEARING 20.03.2017 ' DATE OF PRONOUNCEMENT 20.03.2017 / O R D E R PER BENCH : THESE APPEALS ARE FILED BY ASSESSEE AGAINST THE CONSOLIDATED ORDER OF THE LEARNED CIT(A)-3, BHOPAL DATED 13.12.2016 FOR THE ASSESSMENT YEARS 2008-09 TO 2014 -15. SHRIPRABHAKARKOCHEI.T.A.NOS. 56 TO 62/IND/2016 PAGE 2 OF 8 2. IN ALL THESE APPEALS, THE SOLE ISSUE INVOLVED IS THAT THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE LEVY OF PENALTY U/S 271(1)(B) OF THE I.T. ACT AT RS.10,000/- IN EACH AS SESSMENT YEAR IN THE CASES OF ALL THESE ASSESSEES. 3. BRIEF FACTS OF THE CASE ARE THAT A SEARCH IN THE CASE OF ASSESSEE GROUP KNOWN AS AG8 WAS CARRIED OUT ON 29.0 1.2014. CONSEQUENTLY, THE ASSESSEE FILED THE RETURNS IN RES PONSE TO NOTICE U/S 153A FOR THE ASSESSMENT YEARS 2008-09 TO 2013-14 AND U/S 139 FOR THE A.Y. 2014-15. THEREAFTER, THE A SSESSING OFFICER ISSUED NOTICE U/S 142(1) WITH QUESTIONNAIRE S FOR ALL THE ABOVE A.YS. WAS ISSUED ON 30.09.2015 AND REQUIRED COMPLIANCE ON 15.10.2015. IT WAS ALSO MENTIONED IN THE SAID NOTICE THAT FAILURE TO COMPLY WITH THE NOTICE ON PA RT OF THE ASSESSEE WOULD LEAD TO IMPOSITION OF PENALTY U/S 2 71(1)(B) FOR RS.10,000/- FOR EACH ASSESSMENT YEAR. HOWEVER, THE ASSESSEE HAS FAIL TO MAKE ANY COMPLIANCE ON 15.10.2015. THER EFORE, SHOW CAUSE NOTICE U/S 271(1)(B) OF THE ACT, ISSUED ON 07.12.2015 AS TO WHY PENALTY U/S 271(1)(B) SHOULD N OT BE LEVIED. HOWEVER AGAINST NO REPLY/ SUBMISSIONS WERE FILED BY THE SHRIPRABHAKARKOCHEI.T.A.NOS. 56 TO 62/IND/2016 PAGE 3 OF 8 ASSESSEE ON OR BEFORE THE DATED ON 15.12.2015 AS TO WHY PENALTY OF RS.10,000/- SHOULD NOT BE LEVIED UPON TH E ASSESSEE FOR NON-COMPLIANCE OF STATUTORY NOTICE U/S 142(1) O F THE ACT, DATED 30.04.2015. HOWEVER THE ASSESSEE DID NOT AVAI L THIS OPPORTUNITY AND NO REPLY WAS FURNISHED BY THE ASSES SEE ON THE AFORESAID DATE. HENCE, THE ASSESSING OFFICER LEVIED PENALTY OF RS.10,000/- FOR EACH OF THE ASSESSMENT YEARS FROM A .YS. 2008- 09 TO 2014-15. 4. BEING AGGRIEVED THE ASSESSEE HAS FILED AN APPEAL BEFORE THE LD. CIT(A), IT WAS SUBMITTED THAT THE ASSESSEE ASKE D HIS COUNSEL SHRI DS TIWARI TO SEEK FURTHER TIME OF ABOU T TWO MONTHS TO MAKE THE COMPLIANCE. THE LD. COUNSEL TOLD THE ASSESSEE THAT HE HAS REQUESTED FOR TIME AND THE COM PLIANCE MAY BE MADE ON THE LATER DATE. THE COUNSEL,SHRI D.S . TIWARI WAS LOOKS AFTER ALL THE ASSESSEES OF THE GROUP NUMB ERING ABOUT 25, AND ALMOST EACH ONE WAS REQUIRED TO MAKE A COMP LIANCE FOR SEVEN YEARS. HE THEREAFTER FILED REPLIES ON 17. 12.2015 IN ALL THE CASES OF THE ASSESSEE AND THE GROUP. HOWEVER, I N THE MEANTIME, THE ASSESSING OFFICER ISSUED SHOW CAUSE N OTICE U/S SHRIPRABHAKARKOCHEI.T.A.NOS. 56 TO 62/IND/2016 PAGE 4 OF 8 271(1)(B) AND LEVIED A PENALTY OF RS.10,000/- EACH FOR THE ASSESSMENT YEARS UNDER SUBJECT TO APPEAL. THE LD. C OUNSEL SUBMITTED BY RELYING THE DECISION IN THE CASE OF HO TEL BLUE MOON, (2010) 321 ITR 362(SC) AND ASHOK CHADDHA (201 1) 337 ITR 399 (DEL) THAT THE ASSESSMENT MADE U/S 158BC WA S A SPECIFIC PROVISION THAT THE PROVISIONS OF SECTION 1 42(1), 143(2) ETC WILL APPLY TO THE BLOCK ASSESSMENTS BUT THERE I S NO SUCH A SPECIFIC PROVISION IN THE PROCEDURE FOR THE ASSESSM ENT PROCEEDINGS U/S 153A AND THEREFORE, THERE IS NO REQ UIREMENT OF ISSUE OF NOTICE U/S 143(2) ON THE SAME LINE IT WAS SUBMITTED THAT THE ISSUE NOTICE U/S 142(1) IN THE ASSESSMENT PROCEEDINGS U/S 153A WAS ILLEGAL AND NON-COMPLIANCE OF THE SAME SHOULD NOT ATTRACT ANY PENALTY U/S 271(1)(B) OF THE ACT. H OWEVER, THE LD. CIT(A) NOTED THAT THE ASSESSEE DID NOT MAKE ANY COMPLIANCE ON THE DATE FIXING FOR HEARING I.E. 15.1 0.2015 FOR THE A.YS. 2008-09 TO 2014-15 FOR WHICH NOTICE U/S 1 42(1) OF THE ACT, WAS ISSUED BY THE ASSESSING OFFICER. NO CO PY OF SUCH REQUEST WAS FILED FOR GRANT OF TIME MADE BY THE ASS ESSEE. FURTHER, THE ASSESSEE DID NOT AVAIL OF THIS OPPORTU NITY TO FURNISH REPLY/SUBMISSION IN RESPONSE TO THE SHOW CA USE NOTICE SHRIPRABHAKARKOCHEI.T.A.NOS. 56 TO 62/IND/2016 PAGE 5 OF 8 U/S 271(1)(B) OF THE ACT, THEREFORE, THERE WAS NOT ANY REASONABLE CAUSE WITH THE ASSESSEE WHICH PREVENTED HIM TO COMPLY WITH THE STATUTORY NOTICE. HENCE THE PENALTY LEVIED BY THE ASSESSING OFFICER WAS CONFIRMED FOR ALL THE ASS ESSMENT YEARS. 5. BEING AGGRIEVED, THE ASSESSEE HAS FILED THIS APP EAL BEFORE THE TRIBUNAL. THE LD. COUNSEL SUBMITTED THAT SHRI D .S. TIWARI WHO WAS LOOKED AFTER THE GROUP OF ASSESSEE AS REQUE STED THE ASSESSING OFFICER TO GRANT SOME MORE TIME. HOWEVER, THE ASSESSING OFFICER DID NOT RECORD ANY ATTENDANCE IN THIS REGARD. IT WAS ALSO ARGUED THAT THE COUNSEL OF THE ASSESSEE HAS TO PREPARE SUBMISSIONS IN RESPECT OF ABOUT 25 CASES OF THE GROUP, THEREFORE, THE ASSESSEE WAS REQUIRED TIME TO PREPARE AND FILE THE REPLY. IT WAS FURTHER SUBMITTED THAT T HE ASSESSEE HAS APPEARED IN SUBSEQUENT ASSESSMENT PROCEEDINGS A ND ASSESSMENT WAS MADE U/S 153A R.W.S. 143(3), THEREFO RE, NO PENALTY U/S 271(1)(B) LIABLE AS ASSESSEE HAS MADE D OUBT COMPLIANCE IN SUBSEQUENT PROCEEDINGS. IN SUPPORT OF THIS LD. COUNSEL HAS ALSO RELIED ON THE DECISIONS IN THE CAS E OF SHRIPRABHAKARKOCHEI.T.A.NOS. 56 TO 62/IND/2016 PAGE 6 OF 8 HINDUSTAN STEEL LTD., 83 ITR 26 (SC) TO CONTEND THA T PENALTY MAY NOT BE IMPOSED MERELY BECAUSE IT IS LAWFUL TO D O AS ON TECHNICAL OR VENIAL BREACH OF PROVISION OF LAW. THE AR ALSO CITED FOLLOWING DECISION BEFORE LD. CIT(A):- (I) HOTEL BLUE MOON, (2010) 321 ITR 362 (S.C.), (II) ASHOK CHADDHA, (2011) 337 ITR 399 (DEL). 6. ON THE OTHER HAND, LD. DR RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES AND CITED SOME DECISIONS OF THE TRIBUNALS. 7. WE HAVE HEARD RIVAL CONTENTIONS OF BOTH THE PART IES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND F ROM THE ASSESSMENT ORDERS IN ALL THESE GROUP APPEALS THAT T HE ASSESSMENTS HAVE BEEN COMPLETED U/S 153A R.W.S. 143 (3) OF THE I.T. ACT. WE FIND THAT THE ASSESSING OFFICER HA S LEVIED PENALTY U/S 271(1)(B) FOR NON-APPEARANCE ON 15.10.2 015. AS PER LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE, THE ASSESSEES COUNSEL APPEARED AND STATED CATEGORICALL Y THAT HE APPEARED FOR SEEKING TIME. THE COUNSEL REGULARLY AT TENDED THE PROCEEDINGS AND THE ASSESSMENTS HAVE BEEN FRAMED U/ S SHRIPRABHAKARKOCHEI.T.A.NOS. 56 TO 62/IND/2016 PAGE 7 OF 8 143(3)AND NOT U/S 144. WE FIND THAT THIS WAS THE F IRST NOTICE FOR COMPLIANCE AND SINCE THE VOLUMINOUS RECORDS AND PAPERS WERE REQUIRED TO BE SCRUTINIZED AND INDIVIDUALLY IN EACH CASE, THE APPROPRIATE REPLIES WERE TO BE FILED, THE ASSES SEE PRAYED FOR THE TIME TO SUBMIT THE REPLY AND ULTIMATELY SUBMITT ED ALL THE NECESSARY REPLIES AND COOPERATED WITH THE DEPARTMEN T. WE ARE OF THE VIEW THAT ASSESSEES HAD REASONABLE CAUSE FOR NON- APPEARANCE ON THAT DAY. THEREFORE, THERE IS NO JUST IFICATION FOR LEVYING THE PENALTY U/S 271(1)(B) OF THE ACT. SECON DLY, IN THIS MATTER, THE ASSESSMENTS HAVE BEEN COMPLETED U/S 153 A R.W.S. 143(3) OF THE ACT, THEREFORE, NO PENALTY CAN BE LEV IED IF THE ASSESSMENTS HAVE BEEN COMPLETED U/S 153A R.W.S. 143 (3) AND THERE IS SUBSEQUENT COMPLIANCES IN THE ASSESSMENT PROCEEDINGS WAS CONSIDERED AS GOOD COMPLIANCES AND DEFAULT COMMITTED EARLIER WERE IGNORED. THEREFORE, PENALTY U/S 271(1)(B) WAS DELETED BY VARIOUS TRIBUNALS. IN THE CASE OF AKHIL BHARTIYA PARTHMIK SHMSHAK SANGH BHAWAN TRUST VS. AD IT (2008) 115 TTJ 419 (DEL), IT WAS HELD THAT WHERE TH E ASSESSEE HAD NOT COMPLIED WITH NOTICE U/S 142(1) BUT ASSESSM ENT ORDER WAS PASSED U/S 143(3) AND NOT U/S 144, THAT MEANT T HAT SHRIPRABHAKARKOCHEI.T.A.NOS. 56 TO 62/IND/2016 PAGE 8 OF 8 SUBSEQUENT COMPLIANCE IN ASSESSMENT PROCEEDINGS WAS CONSIDERED AS GOOD COMPLIANCE AND DEFAULTS COMMITTE D EARLIER WERE IGNORED BY THE ASSESSING OFFICER, THEREFORE, L EVY OF PENALTY U/S 271(1)(B) OF THE ACT WAS NOT JUSTIFIED. THE CAS E LAWS CITED BY LD. DEPARTMENTAL REPRESENTATIVE ARE DISTINGUISHA BLE ON FACTS, HENCE, INAPPLICABLE TO THIS CASE. IN VIEW OF THAT FACTS, WE SET ASIDE THE ORDERS OF THE REVENUE AUTHORITIES AND DELETE THE LEVY OF PENALTY U/S 271(1)(B) OF THE ACT IN ALL THE SE APPEALS. 8. IN RESULT, ALL THE APPEALS OF THE ASSESSEE ARE A LLOWED. THE ORDER HAS BEEN PRONOUNCED IN OPEN COURT ON THE MARCH, 2017. SD/- (C.M. GARG) JUDICIAL MEMBER SD/- (O.P.MEENA) ACCOUNTANT MEMBER / DATED : 20 TH MARCH, 2017. PATEL/PS