MAGNUM INFRAPROJECTS P.LTD, MUMBAI V. ASST CIT CEN CIR 45, MUMBAI

ITA 5642/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2458 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 08-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure; Loose papers; Rule of consistency; Reasonable cause
• Section: 43B; 273B; 143(3); 142(1); 153A; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B, MUMBAI BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH, JUDICIAL MEMBER ITA NO.5642/MUM/2014 TO ITA NO.5648/MUM/2014 (ASSESSMENT YEARS 2006-07 TO 2012-13) M/S. MAGNUM INFRAPROJECTS PVT. LTD. 1201-A, SHATRUNJAYA DARSHAN CO-OP. HOUSING SOCIETY LTD., SHETH MOTISHA CROSS LANE, BYCULLA (E), MUMBAI- 400027 PAN:AACCM4472D ...... APPELLANT VS. THE ACIT, CENTRAL CIR.45, MUMBAI .... RESPONDENT APPELLANT BY : SHRI ANUJ KISNADWALA RESPONDENT BY : SHRI PRADEEP KR. S INGH DATE OF HEARING : 18/10/2016 DATE OF PRONOUNCEMENT : 21/10/2016 ORDER PER G.S.PANNU,A.M: THESE ARE SEVEN APPEALS BY THE ASSESSEE PERTAININ G TO ASSESSMENT YEARS 2006-07 TO 2012-13 INVOLVING A COMMON ISSUE RELATI NG TO LEVY OF PENALTY UNDER SECTION 271(1)(B) OF THE ACT. SINCE THE FACTS AND CIRCUMSTANCES IN ALL THE APPEALS STAND ON SIMILAR FOOTING, THE APPEAL FOR AS SESSMENT YEAR 2006-07 IS TAKEN AS THE LEAD CASE. THIS APPEAL IS DIRECTED AG AINST A COMMON ORDER PASSED 2 ITA NO.5642 TO 5648/MUM/2014 BY CIT(A)-38, MUMBAI DATED 31/07/2014, WHICH IN TU RN, ARISES OUT OF AN ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 271(1 )(B) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 20/12/2013. IN ALL THE YEARS, PENALTY OF RS.10,000/- EACH HAS BEEN LEVIED UNDER SECTION 271( 1)(B) OF THE ACT PRIMARILY FOR THE REASON OF DELAY ON THE PART OF THE ASSESSE E IN COMPLYING WITH THE INFORMATION CALLED FOR FINALIZING THE ASSESSMENT. 2. IN BRIEF, THE RELEVANT FACTS ARE THAT THE ASSESS EE COMPANY IS A PART OF UNITY GROUP OF CASES, WHEREIN A SEARCH AND SEIZURE ACTION UNDER SECTION 132(1) OF THE ACT WAS CARRIED OUT BY THE DEPARTMENT ON 10/ 2/2012. A NOTICE UNDER SECTION 142(1) OF THE ACT DATED 14/09/2013 WAS ISSU ED BY THE ASSESSING OFFICER FOR ALL THE SEVEN CAPTIONED ASSESSMENT YEARS FIXING THE DATE OF HEARING ON 19/10/2013. SINCE THE NOTICE WAS RECEIVED BY THE AS SESSEE ONLY ON 17/10/2013, ASSESSEE SOUGHT ADJOURNMENT AND NEXT DA TE OF HEARING ON 29/10/2013 ASSESSEE COMPANY FURNISHED ONLY A PART OF THE DETAILS CALLED FOR VIDE NOTICE UNDER SECTION 142(1) OF THE ACT. THE A SSESSING OFFICER HAS NOTED IN HER ORDER DATED 20/12/2013(SUPRA) THAT IN RESPONSE TO THE SHOW CAUSE NOTICE ISSUED UNDER SECTION 271(1)(B) OF THE ACT ASSESSEE SUBMITTED THAT DUE TO HEAVY WORK LEAD COMPLETE DETAILS COULD NOT BE FURNISHED I N TIME. NOT BEING SATISFIED WITH THE REPLY OF THE ASSESSEE, THE ASSESSING OFFIC ER HELD THAT IN VIEW OF THE RELUCTANCE OF THE ASSESSEE IN FILING THE DETAILS CA LLED FOR, IT WAS A FIT CASE FOR IMPOSITION OF PENALTY UNDER SECTION 271(1)(B) OF TH E ACT. ACCORDINGLY, PENALTY OF RS.10,000/- FOR EACH OF THE CAPTIONED ASSESSMENT YEARS HAVE BEEN LEVIED. SUCH LEVY HAS SINCE BEEN AFFIRMED BY THE CIT(A) ALS O, AGAINST WHICH ASSESSEE IS IN FURTHER APPEAL BEFORE THE TRIBUNAL. 3. BEFORE US, IT HAS BEEN POINTED OUT THAT THE MAIN ENTITY OF THE GROUP IS M/S. UNITY INFRAPROJECTS LTD., IN WHOSE CASE ALSO S IMILAR PENALTIES FOR THE 3 ITA NO.5642 TO 5648/MUM/2014 CAPTIONED ASSESSMENT YEARS WERE LEVIED BY THE ASSES SING AUTHORITY, WHICH HAS BEEN DELETED BY THE TRIBUNAL VIDE ITA NO.5079 TO 50 85/MUM/2014 DATED 17/05/2016. IT WAS POINTED OUT THAT THE PENALTIES IN THE INSTANT CASE HAVE ALSO BEEN LEVIED UNDER IDENTICAL CIRCUMSTANCES AND, THER EFORE, FOLLOWING THE DECISION OF THE TRIBUNAL IN THE CASE OF M/S. UNI TY INFRAPROJECTS LTD. (SUPRA), SUCH PENALTIES ARE LIABLE TO BE DELETED. 4. IN ORDER TO APPRECIATE THE CASE OF THE ASSESSEE, IT WOULD BE APPROPRIATE TO NOTE THAT ASSESSEE IS PART OF A GROUP WHICH HAS MULTIPLE ENTITIES. AS A CONSEQUENCE OF SEARCH ACTION, ASSESSMENTS WERE CARR IED OUT IN ALL THE GROUP CASES. IT HAS BEEN POINTED OUT THAT NOTICES UNDER SECTION 142(1) OF THE ACT WERE ISSUED IN THE CASE OF ALL THE ENTITIES AND THE DATE WAS FIXED ON 19/10/2013 IN MANY OF THE CASES INCLUDING IN THE CA SE OF M/S. UNITY INFRAPROJECTS LTD. (SUPRA), WHICH WAS THE FLAGSHIP COMPANY OF THE GROUP. IT HAS BEEN POINTED OUT THAT VARIOUS DETAILS HAS BEEN CALL ED FOR AND EVEN THE DETAILS FURNISHED AT THE TIME OF LEVY OF PENALTY UNDER SECT ION 271(1)(B) OF THE ACT WOULD SHOW THAT IT IS NOT A CASE OF COMPLETE NON-CO MPLIANCE, BUT IT IS A CASE WHERE THE DETAILS/ SUBMISSIONS WERE MADE IN A PIECE MEAL MANNER. IT HAS BEEN POINTED OUT THAT ULTIMATELY ASSESSMENT FOR ALL THE SEVEN YEARS WERE COMPLETED UNDER SECTION 153A R.W.S. 143(3) OF THE ACT ON THE BASIS OF THE MATERIAL AND SUBMISSIONS PUT-FORTH BY THE ASSESSEE. BEFORE CIT( A) ASSESSEE ALSO POINTED OUT THAT SINCE THE SEARCH WAS CONDUCTED WITH RESPECT TO CERTAIN PURCHASE TRANSACTIONS CARRIED OUT IN THE CASE OF M/S. UNITY INFRAPROJECTS LTD. (SUPRA), THE COMPLIANCE WAS MADE IN THAT CASE ON PRIORITY BA SIS. BEFORE THE CIT(A), ASSESSEE ALSO FURNISHED A COPY OF THE PROCEEDINGS S HEET IN THE CASE OF M/S. UNITY INFRAPROJECTS LTD. (SUPRA) TO SHOW THAT IT HAD COMPLIED WITH SIGNIFICANT REQUIREMENT OF THE ASSESSING OFFICER. THE LD. REPR ESENTATIVE FOR THE ASSESSEE 4 ITA NO.5642 TO 5648/MUM/2014 POINTED OUT THAT THE DETAILED EXPLANATION RENDERED BY THE ASSESSEE HAS BEEN UNJUSTIFIABLY REJECTED BY THE CIT(A) ALSO. 5. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATI VE DEFENDED LEVY OF PENALTY UNDER SECTION 271(1)(B) OF THE ACT FOR EACH OF THE ASSESSMENT YEAR BY POINTING OUT THAT THE EXPLANATION RENDERED BY THE A SSESSEE FOR NON-COMPLIANCE WAS A VERY GENERALIZED EXPLANATION TO THE EFFECT TH AT THERE WAS HEAVY WORK LOAD. IT IS POINTED OUT THAT REASONS ADVANCED BY T HE ASSESSEE FOR NON- COMPLIANCE DO NOT JUSTIFY THE DELETION OF PENALTY I MPOSED UNDER SECTION 271(1)(B) OF THE ACT. 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. OSTENSIBLY, ASSESSEE IS A PART OF UNITY GROUP OF CASES, WHEREIN ASSESSM ENT FOR THE CAPTIONED ASSESSMENT YEARS WERE CARRIED OUT AFTER SEARCH AND SEIZURE ACTION ON 10/02/2012. IN THE INSTANT CASE, PENALTY HAS BEEN LEVIED UNDER SECTION 271(1)(B) OF THE ACT FOR RS.10,000/- FOR EACH OF T HE ASSESSMENT YEARS FROM 2006-07 TO 2012-13, PRIMARILY FOR THE REASON THAT A SSESSEE DID NOT COMPLY WITH THE REQUIREMENTS CONTAINED IN THE NOTICE ISSUED UND ER SECTION142(1) OF THE ACT DATED 14/10/2013. IN THIS CONTEXT, WE FIND THAT SI MILAR ACTION WAS TAKEN BY THE ASSESSING AUTHORITY IN THE CASE OF M/S. UNITY INF RAPROJECTS LTD. (SUPRA). IN THE CASE OF M/S. UNI TY INFRAPROJECTS LTD. (SUPRA), THE CIT(A) HAD ALS O UPHELD THE LEVY OF PENALTY AND A COPY OF HIS ORDER DATED 30/6/ 2014 SHOWS THAT THE SAME IS ALMOST IDENTICALLY WORDED AS IN THE PRESENT CASE. THE REASONS ADVANCED FOR LEVY OF PENALTY IN EACH OF THE ASSESSMENT YEARS ALS O REMAIN ON SIMILAR FOOTING. THE TRIBUNAL IN THE CASE OF M/S. UNITY INFRAPROJEC TS LTD. (SUPRA) FOUND IT EXPEDIENT TO DELETE THE PENALTY CONSIDERING THAT TH ERE WAS A REASONABLE CAUSE WITH THE ASSESSEE FOR NOT COMPLYING WITH THE REQUIR EMENT CONTAINED IN THE 5 ITA NO.5642 TO 5648/MUM/2014 NOTICE ISSUED UNDER SECTION 142(1) OF THE ACT . TH E RELEVANT DISCUSSION IN THE ORDER OF THE TRIBUNAL IN THIS REGARD IS AS UNDER:- 4.4.1 WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH T HE PARTIES AND PERUSED AND CAREFULLY CONSIDERED THE MATERIAL ON RECORD. THE FACTS OF THE MATTER AS EMANATE FROM THE RECORD ARE THAT IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO ISS UED A NOTICE UNDER SECTION 142(1) OF THE ACT DATED 11.10.2013 FOR ASSESSMENT YEARS 2006-07 TO 20 12-13, CALLING UPON THE ASSESSEE TO FURNISH THE DETAILS, MENTIONED IN THE QUESTIONNAIRE ANNEXED THERETO, TO BE FILED ON 17.10.2013 AT THE HEARING SCHEDULED FOR 10.30 A.M. (COPY OF THE SAME IS PLACED AT PAGES 2 TO 7 OF THE ASSESSEES PAPER BOOK). IT IS APPARENT THAT THE PENALTY UNDER SECTION 271(1)(B) OF THE ACT WAS LEVIED ON THE ASSESSEE FOR THE SAID SEVEN ASSESSMENT YEARS, FOR F AILURE ON ITS PART TO COMPLY WITH FILING THE REQUIREMENTS CALLED IN THE QUESTIONNAIRE ANNEXED TO THE NOTICE UNDER SECTION 142(1) OF THE ACT DATED 11.10.2013. IN OUR VIEW, IT IS RELEVANT TO E XTRACT HEREUNDER THE QUESTIONNAIRE APPENDED TO THE NOTICE UNDER SECTION 142(1) OF THE ACT DATED 11 .10.2013: - QUESTIONNAIRE/A.Y.2006-07 TO 2012-13/UNITY INFRAPR OJECTS LTD PLEASE FURNISH THE FOLLOWING DETAILS/DOCUMENTS AS I NDICATED WITH RESPECT TO HEARINGS FOR A.Y. 2007-07 TO 2012-13 1. IF YOU WISH TO BE REPRESENTED BY AN AUTHORIZED REPR ESENTATIVE, PLEASE FURNISH A LETTER OF AUTHORITY IN PRESCRIBED FORM. WITHOUT LETTER OF AUTHORITY NO COGNIZANCE OF HIS/HER ATTENDANCE SHALL BE TAKEN. 2. KINDLY NARRATE BRIEF HISTORY OF ASSESSMENT FOR A.Y. 2007-07 TO 2012-13 ALONG WITH ALL SUPPORTING DOCUMENTS INCLUDING ASSESSMENT ORDERS, A PPELLATE ORDERS, COPIES OF RETURNS, AUDIT REPORT, BALANCE SHEET, P&L A/C, COMP UTATION OF INCOME ETC. 3. PLEASE PROVIDE DETAILS OF EARLIER SEARCH ASSESSMENT S. 4. PLEASE SPECIFY WHETHER ANY CLAIM U/S. 80IA/IB IS MA DE IN RETURN THIS TIME & IN EARLIER SEARCH ASSESSMENT PROCEEDINGS. 5. PLEASE SUBMIT CHALLANS FOR THE PAYMENT OF TAXES IN FOLLOWING MANNER FOR A.Y. 2006-07 TO 2012-13: DISCLOSURE MADE DESCRIPTION OF ISSUE DATE & AMOUNT OF PAYMENT OF TAXES WRT DISCLOSURE MADE MANNER OF EARNING INCOME EARNED ON WHICH DISCLOSURE IS MADE DATE OF NOTICE ISSUED U/S. 153A DATE OF RETURN FILED 6. EXPLAIN IN DETAILS THE BUSINESS UNDERTAKEN BY THE C OMPANY DURING A.Y. 2006-07 TO 2012-13, INCLUDING THE DETAILS OF PROJECT IN FOLLOW ING FORMAT. ON GOING PROJECTS NEW PROJECTS UNDERTAKEN PROJECTS IN PIPELINE NAME OF THE PROJECT DESCRIPTION 6 ITA NO.5642 TO 5648/MUM/2014 ADDRESS OF SITE CLIENT NAME DATE OF START DATE OF COMPLETION CURRENT STATUS CONTRACT VALUE 7. PLEASE SUBMIT PURCHASE LIST INCLUDING NAME, PAN, CO NTACT NO., ADDRESS OF ALL PURCHASE PARTIES WITH AMOUNT AND DATE OF PURCHASE. SUBMIT DE TAILS OF ALL THE PURCHASES IN CASE OF THE FOLLOWING CONCERNS: (A) DEV STEEL (B) KARMA ISPAT (C) PARAM COMMERCIAL CO. (D) STEELCON INFRATRADE PVT. LTD. (E) MAGNUM INFRAPROJECTS LTD. (F) MAHENDRA BROTHERS (G) DHANI PRODUCTS PVT. LTD. PLEASE SUBMIT THE INFORMATION FOR THESE PARTIES IN THE FOLLOWING FORMAT IN DIFFERENT SHEET FOR EACH CONCERN FOR THE PERIOD A.Y. 2006-07 TO A.Y . 2012-13: A.Y. NAME OF THE COMP ANY BILL NO. AND DATE OF PURCHASE QUANTITY NAME OF THE MATERIAL PURCHASE AMOUNT CORRESP ONDING SELL AMOUNT NAME, ADDRESS AND PAN OF THE SELL PARTY SALE BILL/ INVOICE NO. ALSO FURNISH CORRESPONDING DELIVERY CHALLAN, OCTROI RECEIPT/CHALLAN, WEIGH BILL, MATERIAL RECEIPT NOTE, STOCK BOOK ENTRY AT SITE/PROJECT OFFI CE IN CASE OF EACH PURCHASE. SUBMIT EVIDENCE IN SUPPORT OF CLAIM. 8. DETAILS OF SCRAP SALE MADE BY THE ASSESSEE. 9. PROVIDE DETAILS OF FIXED ASSETS, FIXED DEPOSITS AND SHARES AND SECURITIES HELD BY THE ASSESSEE IN THE CAPTIONED ASSESSMENT YEARS. 10. PRODUCE FOREIGN TRAVELS DETAILS ALONGWITH REASON FO R THE PERIOD A.Y. 2006-07 TO A.Y. 2012-13 IN CASE OF ALL THE MEMBERS OF UNITY GR OUP WITH SUPPORTING BILLS & DOCUMENTS. 11. PLEASE SUBMIT THE DETAILS WITH DOCUMENTARY EVIDENCE S OF ALL THE ITEMS INVENTORIZED DURING THE COURSE OF SEARCH CONDUCTED IN THE PREMIS ES OF UNITY GROUP. 12. DURING THE COURSE OF SEARCH/SURVEY ACTION AT THE PR EMISES, CERTAIN LOOSE PAPERS/DOCUMENTS, ALONG WITH DIGITAL DATA WERE FOUN D AND SEIZED/IMPOUNDED. PAGE WISE EXPLANATION OF THE PAPERS IMPOUNDED DURIN G THE COURSE OF THE SEARCH/SURVEY FOR THE PERIOD A.Y. WISE IN FORMAT AS PER ANNEXURE. 7 ITA NO.5642 TO 5648/MUM/2014 13. DURING THE COURSE OF SEARCH/SURVEY ACTION AT THE PR EMISES, CASH OF RS.11,74,030/- WAS FOUND, OF WHICH RS.10,00,000/- WAS SEIZED. PLEA SE FURNISH EXPLANATION FOR THE SAME. 14. IN RESPECT OF ALL THE LOANS & ADVANCES GIVEN DURING THE A.Y. 2006-07 TO 2012-13. 15. FURNISH DETAILS OF ADVANCE & AMOUNT INCLUDED IN SUN DRY DEBTORS WHICH ARE NOT FOR BUSINESS PURPOSE DURING THE A.Y. 2006-07 TO 2012-13 . SR. NO. NAME, PAN, ADDRESS AND CONTACT NO. OF THE PARTY PURPOSE OPENING BALANCE ADDITION DURING THE YEAR REDUCTION DURING THE YEAR CLOSING BALANCE AS ON PY ENDING PURPOSE 16. IN CASE OF SUNDRY DEBTORS WHICH ARE IN THE NATURE O F REGULAR BUSINESS, THE DETAILS IN THE FORMAT AS BELOW, DURING THE A.Y. 2006-07 TO 201 2-13. SR. NO. NAME, PAN, ADDRESS AND CONTACT NO. OF THE PARTY PURPOSE OPENING BALANCE ADDITION DURING THE P.Y REDUCTION DURING THE P.Y. CLOSING BALANCE AS ON P.Y. ENDING 17. FURNISH COMPARATIVE CHART OF GROSS PROFIT AND NET P ROFIT RATIO FOR THE PERIOD FROM A.Y. 2006-07 TO 2012-13 AND ALSO INDICATE THE REASO NS FOR VARIATIONS, IF ANY. 18. FURNISH COMPARATIVE CHART OF FIGURES OF PROFIT AND LOSS ACCOUNT AND BALANCE SHEET FOR ALL THE YEARS FROM A.Y. 2006-07 TO 2012-13 AND ALSO INDICATE THE REASONS FOR VARIATIONS, IF ANY. 19. A DETAILED LIST OF TAXABLE WEALTH ALONG WITH COMPUT ATION OF NET WEALTH AS PER PROVISIONS OF W.T. ACT, 1957 FROM A.Y. 2006-07 TO 2 -12-13. PLEASE ALSO EXPLAIN WHETHER THE RETURN OF NET WEALTH IS BEING FILED BY YOU OR NOT. IF THE RETURN IS FILED, A COPY OF THE ACKNOWLEDGMENT ALONG WITH COMPUTATION M AY BE FILED. 20. KINDLY FURNISH DETAILS OF T.D.S. CLAIMED IN THE FOL LOWING FORMAT FOR A.Y. 2006-07 TO 2012-13. SR. NO. NAME, PAN, ADDRESS AND CONTACT NO. OF THE PARTY NATURE OF BUSINESS TRANSACTION GROSS INCOME CREDITED AS PER BOOKS OF ACCOUNT INCOME AS PER TDS CERTIFICATE TDS DEDUCTED DEDUCTION U/S. 21. KINDLY FURNISH THE DETAILS OF SUNDRY CREDITORS AS A PPEARING IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE FOR A.Y.S 2006-07 TO 2012-13. 22. IN CASE OF SALE OR PURCHASE OF SHARES OF GROUP COMP ANIES (LISTED OR UNLISTED), THE FOLLOWING ADDITIONAL INFORMATION FOR A.Y. 2006-07 T O 2012-13. NAME OF THE COMPANY/ADDRESS/PAN/WHETHER LISTED/PURC HASED FROM PRIMARY OR SECONDARY MARKET/PRICE AT WHICH TRANSACTION TOOK PL ACE/NOMINAL VALUE OF SHARES/PREMIUM/FATE OF INVESTMENT/ WHETHER SHARES WERE ORIGINALLY ISSUED AT PREMIUM/DISCOUNT. 23. IDENTIFY EXPENDITURE NOT PAID IN TIME AS PER THE PR OVISIONS OF SECTION 43B AND TO BE DISALLOWED, A SEPARATE LIST THEREOF FOR THE PERIOD A.Y. 2006-07 TO A.Y. 2012-13. 8 ITA NO.5642 TO 5648/MUM/2014 24. SUBMIT LIST OF EQUITY SHAREHOLDERS HOLDING SHARES M ORE THAN 10 PERCENT INDIVIDUALLY ALONG WITH ADD5RESS/PAN FOR A.Y. 2006-07 TO A.Y. 20 12-13. SR. NO. NAME, PAN, ADDRESS AND CONTACT NO. OF THE PARTY NO. OF SHARES HELD % SHAREHOLDING ANY SUM CREDITED TO EQUITY SHAREHOLDER SPECIFY HEAD & AMOUNT & DATE 25. SUBMIT HARD COPY OF AUDITORS REPORT IN FORM 3CD ALO NG WITH AUDITED FINANCIAL STATEMENTS AND COMPANYS ANNUAL REPORT. 26. DETAILS OF ALL THE INVESTMENT (A.Y. WISE) MADE DURI NG THE CONCERNED PERIOD. YOU ARE REQUESTED TO FURNISH THE ABOVE DETAILS ON O R BEFORE THE SPECIFIED DATE AS PER NOTICE U/S 142(1). ALL THE DETAILS SHOULD BE SU BMITTED IN THE ORDER IN WHICH THEY APPEAR ABOVE PREFERABLY IN BOTH THE HARD COPY AS WE LL AS SOFT COPY. THE DETAILS SUBMITTED SHALL BE VERIFIED AND SIGNED BY THE MANAG ING DIRECTOR/DIRECTOR IN THE FOLLOWING FORMAT: I DECLARE TO THE BEST OF MY KNOWLEDGE AND BELIEF, THE INFORMATION FURNISHED IN THE STATEMENTS IS CORRECT AND COMPLETE AND OTHER PARTIC ULARS SHOWN THEREIN ARE TRULY STATED. DETAILS FILED WITHOUT VERIFICATION SHALL NOT BE ACC EPTED. SD/- SEEMA DHANKHAR, IRS ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-45, MUMBAI 4.4.2 THE PROVISIONS OF SECTION 271(1)(B) OF THE AC T READ AS UNDER: FAILURE TO FURNISH RETURNS, COMPLY WITH NOTICES, E TC. 271(1) IF THE [ASSESSING] OFFICER OR THE [COMMISSIO NER (APPEALS)] [OR THE PRINCIPAL COMMISSIONER OR COMMISSIONER] IN THE COURSE OF ANY PROCEEDINGS UNDER THIS ACT, IS SATISFIED THAT ANY PERSON (A) [---------------] (B) HAS [* * *] FAILED TO COMPLY WITH A NOTICE [UND ER SUB-SECTION (2) OF SECTION 115WD OR UNDER SUB-SECTION (2) OF SECTION 115WE OR] UNDER SU B-SECTION (1) OF SECTION 142 OR SUB- SECTION (2) OF SECTION 143 [OR FAILS TO COMPLY WITH A DIRECTION ISSUED UNDER SUB-SECTION (2A) OF SECTION 142 ], OR (C) HAS CONCEALED THE PARTICULARS OF HIS INCOME OR [* * *] FURNISHED INACCURATE PARTICULARS OF [SUCH INCOME, OR] [(D) HAS CONCEALED THE PARTICULARS OF THE FRINGE BE NEFITS OR FURNISHED INACCURATE PARTICULARS OF SUCH FRINGE BENEFITS,] HE MAY DIRECT THAT SUCH PERSON SHALL PAY BY WAY OF PENALTY, (I) [* * *] 9 ITA NO.5642 TO 5648/MUM/2014 [(II) IN THE CASES REFERRED TO IN CLAUSE (B), [IN A DDITION TO TAX, IF ANY, PAYABLE] BY HIM, [A SUM OF TEN THOUSAND RUPEES] FOR EACH SUCH FAILURE ; ] THE PROVISIONS OF SECTION 273B OF THE ACT READ AS U NDER: - 273B. PENALTY NOT TO BE IMPOSED IN CERTAIN CASES NOTWITH STANDING ANYTHING CONTAINED IN THE PROVISIONS OF CLAUSE (B) OF SUB- SECTION (1) OF] SECTION 271, SECTION 271A, SECTION 271B SECTION 271BB,] SECTION 271C, SECTION 271D, SECTIO N 271E, CLAUSE (C) OR CLAUSE (D) OF SUB- SECTION (1) OR SUB- SECTION (2) OF SECTION 272 A, SUB- SECTION (1) OF SECTION 272AA] OR SUB- SECTION (1) OF SECTION 272BB OR] CLAUSE (B) O F SUBSECTION (1) OR CLAUSE (B) OR CLAUSE (C) OF SUB- SECTION (2) OF SECTION 273, NO PENALTY SHALL BE IMPOSABLE ON THE PET- SON OR THE ASSESSEE, AS THE CASE MAY BE, FOR ANY FAILURE REFER RED TO IN THE SAID PROVISIONS IF HE PROVES THAT THERE WAS REASONABLE CAUSE FOR THE SAID FAILUR E.] ON A CONJOINT READING OF THE PROVISIONS OF SECTION 271(1)(B) AND SECTION 273B OF THE ACT, IT IS CLEAR THAT NO PENALTY SHALL BE IMPOSED ON THE ASSES SEE FOR FAILURE REFERRED TO IN SECTION UNDER SECTION 271(1)(B) OF THE ACT IF THE ASSESSEE WERE T O ESTABLISH THAT THERE WAS REASONABLE CAUSE FOR THE SAID FAILURE; IN THE CASE ON HAND, THE ALLEGED FAILURE TO COMPLY WITH THE NOTICE ISSUES UNDER SECTION 142(1) OF THE ACT DATED 11.10.2013. 4.4.3 ACCORDING TO THE ASSESSEE AND AS PER THE MATE RIAL ON RECORD, THE SAID NOTICE ISSUED UNDER SECTION 142(1) OF THE ACT ENCLOSING THE QUEST IONNAIRE CALLING FOR 26 DETAILS (SUPRA) WAS RECEIVED BY THE ASSESSEE ONLY ON 17.10.2013. THE AS SESSEE VIDE LETTER DATED 18.10.2013 BROUGHT THE FACT OF HAVING RECEIVED THE SAID NOTICE/QUESTIO NNAIRE ONLY ON 17.10.2013 TO THE NOTICE OF THE AO; WHICH FACT HAS NOT BEEN CONTROVERTED BY EITHER THE AUTHORITIES BELOW OR THE LEARNED D.R. IN THE PROCEEDINGS BEFORE US. IT IS NOT COMPREHENSIBLE TO US AS TO HOW THE ASSESSEE COULD HAVE COMPLIED WITH THE NOTICE UNDER SECTION 142(1) OF TH E ACT AND THE QUESTIONNAIRE ENCLOSED THERETO (SUPRA) BY FILING SUCH VOLUMINOUS DATA CALLED FOR O N 26 ITEMS, SOME IN PRESCRIBED FORMAT ETC. BY 10.30 A.M. ON 17.10.2013 WHEN THE SAID NOTICE/QUEST IONNAIRE HAD BEEN RECEIVED BY THE ASSESSEE ONLY ON 17.10.2013. IN OUR VIEW, IN THE FACTUAL MAT RIX OF THE MATTER AS LAID OUT ABOVE, IT WAS IMPOSSIBLE FOR THE ASSESSEE TO HAVE COMPLIED WITH T HE REQUIREMENTS OF FILING THE AFORESAID DETAILS BY 10.30 A.M. ON 17.10.2013 REQUIRED BY THE NOTICE UNDER SECTION 142(1) OF THE ACT, AS THERE WAS NO TIME AVAILABLE TO THE ASSESSEE TO DO S O. WE FIND THAT, INSPITE OF THIS, THE ASSESSEE VIDE LETTER DATED 18.10.2013 HAS FILED PART DETAILS OF PURCHASES FOR A.Y. 2006-07 BEFORE THE AO. IN THIS FACTUAL MATRIX OF THE CASE, WE ARE OF THE C ONSIDERED OPINION THAT SINCE COMPLIANCE WITH THE REQUIREMENTS OF THE NOTICE UNDER SECTION 142(1) OF THE ACT DATED 11.10.2013/ QUESTIONNAIRE ANNEXED THERETO WAS NOT HUMANLY POSSIBLE, THIS CONS TITUTED AND ESTABLISHED THAT THE ASSESSEE HAD REASONABLE CAUSE, AS ENVISAGED IN SECTION 273B R.W.S. 271(1)(B) OF THE ACT FOR FAILURE TO COMPLY WITH THE REQUIREMENTS CALLED FOR BY THE NOTI CE UNDER SECTION 142(1) DATED 11.10.2013 AND THE QUESTIONNAIRE ATTACHED THERETO. IN THIS VIE W OF THE MATTER, WE DELETE THE PENALTY LEVIED ON THE ASSESSEE UNDER SECTION 271(1)(B) OF THE ACT @ RS.10,000/- FOR EACH OF THE ASSESSMENT YEARS 2006-07 TO 2012- 13. IT IS ACCORDINGLY ORDERED. 6.1 APART FROM THE AFORESAID, THE LD. REPRESENTATIV E FOR THE ASSESSEE ALSO RELIED UPON THE DECISION OF OUR CO-ORDINATE BENCH I N THE CASE OF KRIPA REALTORS LTD., & OTHERS IN ITA NOS.2950/MUM/2015& OTHERS D ATED 20/7/2016, WHERE IT HAS BEEN HELD THAT EVEN IF ASSESSEE HAD NOT COMPLIE D WITH THE REQUIREMENTS OF THE NOTICE ISSUED UNDER SECTION 142(1) OF THE ACT A T A PARTICULAR STAGE BUT LATER 10 ITA NO.5642 TO 5648/MUM/2014 THE ASSESSMENT WAS FINALIZED UNDER SECTION 143(3) O F THE ACT AND NOT AS A BEST JUDGMENT ASSESSMENT UNDER SECTION 144 OF THE ACT, T HE SUBSEQUENT COMPLIANCE MITIGATES THE RIGORS OF PENALTY CONTAI NED IN SECTION 271(1)(B) OF THE ACT. IN THIS CONTEXT, THE TRIBUNAL RELIED UPON THE FOLLOWING DECISIONS:- 1. SHRI RAMESH KUMAR JAIN VS. ACIT, ITA NO.464/MUM/ 2013 DATED 23/9/2015 2. AKHIL BHARATIYA PRATHMIK SHMSHAK SANGH BHAVAN TR UST V. ADIT (2008) 115 TTJ 419 (DEL). AND CONCLUDED AS UNDER:- 4. AFTER HEARING BOTH THE PARTIES AND ON CONSIDERI NG THE ABOVE DETAILED FACTUAL MATRIX OF EACH OF THE SEVEN APPEALS, WE ARE OF THE OPINION, THE ASSESSEE UNDER CONSIDERATION ARE ELIGIBLE FOR RELIEF. FURTHER, WE HAVE ALSO PERUSED THE CITED DECISIONS OF THE TRIBUNAL (SUPRA) WHICH ARE RELEVANT FOR THE PROPOSITION THAT WHERE THE ASSESSEE HAD NOT COMPLIED WITH THE NOTICE UNDER SECTION.142( 1) BUT THE ASSESSMENT ORDER WAS PASSED UNDER SECTION 143(3) AND NOT UNDER SECTION . 144 OF THE ACT, THAT MEANT THE SUBSEQUENT COMPLIANCE IN THE ASSESSMENT PROCEEDINGS WAS CONSIDERED AS GOOD COMPLIANCE AND THE DEFAULTS COMMITTED EARLIER WERE IGNORED BY THE AO AND, THEREFORE, THE LEVY OF PENALTY U/S 271(1)(B) WAS NO T JUSTIFIED. CONSIDERING THE SAME AS WELL AS RESPECTFULLY FOLLOWING THE DECISION OF THE TRIBUNAL AND ALSO FOLLOWING THE PRINCIPLE OF CONSISTENCY, WE ARE OF THE OPINION TH AT THESE ARE NOT THE FIT CASE FOR INVOKING THE PROVISIONS OF SECTION 271(1)(B) OF THE ACT. ACCORDINGLY, GROUNDS RAISED BY THE ASSESSEE IN ALL THE SEVEN APPEALS ARE ALLOWE D. 6.2 THE AFORESAID PARITY OF REASONING IS SQUARELY A PPLICABLE IN THE INSTANT CASE ALSO AS THE ASSESSMENTS FOR ALL THE CAPTIONED ASSESSMENT YEARS HAVE BEEN COMPLETED UNDER SECTION 143(3) R.W.S.153A OF THE AC T AND, THEREFORE, THE INITIAL NON-COMPLIANCE WITH THE NOTICE ISSUED UNDER SECTION 142(1) OF THE ACT CAN BE UNDERSTOOD TO BE MADE-UP SUBSEQUENTLY AND, THEREFOR E, THE LEVY OF PENALTY UNDER SECTION 271(1)(B) OF THE ACT IS NOT JUSTIFIED . WE ORDER ACCORDINGLY. 7. IT WAS A COMMON POINT BETWEEN THE PARTIES THAT FAC TS AND CIRCUMSTANCES LEADING TO IMPOSITION OF PENALTY UNDE R SECTION 271(1)(B) OF THE ACT IN ALL OTHER CAPTIONED ASSESSMENT YEARS I.E. AS SESSMENT YEARS 2007-08 TO 2012-13 ARE PARI-MATERIA TO THOSE CONSIDERED BY US IN ITA NO. 11 ITA NO.5642 TO 5648/MUM/2014 5642/MUM/2014 FOR ASSESSMENT YEAR 2006-07, THUS, OU R DECISION THEREIN SHALL APPLY MUTATIS MUTANDIS IN THE APPEALS FOR ASSESSMENT YEARS 2007-08 TO 20 12- 13 ALSO. 8. IN THE RESULT, THE PENALTY LEVIED OF RS.10,000/- UNDER SECTION 271(1)(B) OF THE ACT FOR ALL THE ASSESSMENT YEARS IS HEREBY DELE TED AND ALL THE APPEALS ARE ALLOWED, AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 21/10/2016 SD/- SD/- (AMARJIT SINGH) (G.S. PANNU) JUDICIAL MEMBER ACCOCUNTANT MEMBER MUMBAI, DATED 21/10/2016 VM , 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. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI