Carreen Builders & Developers Pvt. Ltd., New Delhi V. DCIT, New Delhi

ITA 5737/DEL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4401 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 11 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2012-2013
• Appeal Filed On: 13-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: F: NEW DELHI BEFORE SHRI G.D. AGRAWAL, HONBLE PRESIDENT AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO. 5737/DEL /2015 ASSESSMENT YEAR: 2012-13 CARREEN BUILDERS & DEVELOPERS PVT. LTD. , 1-E, NAAZ CINEMA COMPLEX, JHANDEWALAN EXTN., NEW DELHI-110055 (PAN: AADCC3093M) VS D CIT, CIRCLE-5(2), NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R.S. SINGHVI, CA RESPONDENT BY : NONE DATE OF HEARING : 04.09.2017 DATE OF PRONOUNCEMENT: 20.09.2017 ORDER PER SUDHANSHU SRIVASTAVA, J.M. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER PASSED BY THE LD. CIT(A)-2, NEW DELHI VID E ORDER DATED 21.07.2015 FOR ASSESSMENT YEAR 2012-13 WHEREIN HE HAS UPHELD THE IMPOSITION OF PENALTY OF RS. 10,000/- IMPOSED U/S 271(1)(B)OF THE INCOME TAX ACT , 1961 (THE ACT). ITA 5737/DEL/2015 ASSESSMENT YEAR 2012-13 2. THE GROUNDS OF APPEAL READ AS UNDER:- 1. THAT THE IMPUGNED ORDER DATED 21.07.2015 PASSE D U/S 271(1)(B) BY THE LEARNED COMMISSIONER OF INCOME -TAX (APPEALS) 2, NEW DELHI IS BAD IN LAW AND WRONG ON F ACTS. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LEARNED COMMISSIONER OF INCOME TAX -APPEA LS 2 ERRED IN LAW IN UPHOLDING THE PENALTY OF RS. 10,0 00 LEVIED BY THE LD. ASSESSING OFFICER UNDER SECTION 2 71(1) (B) OF THE ACT, FOR THE REASONS STATED IN THE IMPUG NED ORDER. 3. THAT THE APPELLANT, CRAVES, LEAVE TO ADD, ALTE R, AMEND, SUBSTITUTE, FORGO, ANY OR ALL THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 3. AN APPLICATION WAS RECEIVED ON BEHALF OF THE L D. SENIOR DR STATING THAT THE LD. SENIOR DR WAS ABSENT AND ADJOU RNMENT WAS SOUGHT BY THE DEPARTMENT ON THIS GROUND. HOWEVER, LOOKING INTO THE FACTS OF THE CASE, WE REJECT THE ADJOURNMENT AP PLICATION AND PROCEED TO HEAR THE CASE EX PARTE QUA THE DEPARTMEN T. 4. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT THE ASSESSEE HAD BEEN REGULARLY ATTENDING THE ASSESSMEN T PROCEEDINGS AND HAD FILED THE REQUIRED DETAILS FROM TIME TO TIME AND HAD NO INTENTION WHATSOEVER TO AVOID THE HEARIN GS. IT WAS ALSO SUBMITTED THAT AS THE ASSESSMENT PROCEEDINGS W ERE AT SHORT INTERVALS, THE DELAY IN FURNISHING REQUIRED DETAILS COULD HAVE HAPPENED BUT THERE WAS NO NON-COMPLIANCE ON THE PAR T OF THE ITA 5737/DEL/2015 ASSESSMENT YEAR 2012-13 ASSESSEE. OUR ATTENTION WAS ALSO DRAWN TO PAGE 1 A ND 2 OF THE PENALTY ORDER DATED 14.1.2015 WHEREIN THE ASSESSEE S REPLY TO THE PENALTY NOTICE ISSUED ON 9.1.2015 HAS BEEN REPRODUC ED. IT WAS ALSO SUBMITTED THAT THE ASSESSMENT WAS COMPLETED U/ S 143(3) OF THE ACT WHICH WAS PROOF ENOUGH THAT THE ASSESSEE HA D DULY COOPERATED DURING THE COURSE OF ASSESSMENT PROCEEDI NGS. RELIANCE WAS PLACED ON THE ORDER OF THE ITAT DELHI BENCH IN THE CASE OF AKHIL BHARTIYA PRATHMIK SHIKSHAK SANGH BHAW AN TRUST VS ACIT 115 TTJ 419 (DEL) FOR THE PROPOSITION THAT WHEN THE ORDER IS FINALLY PASSED U/S 143(3) OF THE ACT AND NOT U/S 144 OF THE ACT, IT WOULD MEAN THAT SUBSEQUENT COMPLIANCE IN THE ASS ESSMENT PROCEEDINGS WAS CONSIDERED AS GOOD COMPLIANCE AND T HE DEFAULTS COMMITTED EARLIER WERE IGNORED BY THE ASSESSING OFF ICER. RELIANCE WAS ALSO PLACED ON ANOTHER ORDER OF THE ITAT DELHI BENCH IN GLOBUS INFORCOM LIMITED VS DCIT IN ITA NO. 738/DEL/ 2014 WHEREIN THE DECISION OF THE COORDINATE BENCH OF ITA T DELHI IN THE CASE OF AKHIL BHARTIYA PRATHMIK SHIKSHAK SANGH BHAW AN TRUST VS ACIT HAD BEEN FOLLOWED. IT WAS PRAYED THAT THE PENALTY IMPOSED MAY KINDLY BE DELETED. 5. WE HAVE HEARD THE SUBMISSIONS OF THE LD. AUTHORI SED REPRESENTATIVE AND HAVE ALSO PERUSED THE RELEVANT M ATERIAL ITA 5737/DEL/2015 ASSESSMENT YEAR 2012-13 PLACED ON RECORD. WE FIND THAT THE INSTANT APPEAL I S SQUARELY COVERED BY THE DECISION OF THE CO-ORDINATE BENCH OF ITAT DELHI IN THE CASE OF AKHIL BHARTIYA PRATHMIK SHIKSHAK SANGH BHAWAN TRUST VS ACIT 5 DTR 429 (DELHI TRIBUNAL) WHEREIN TH E COORDINATE BENCH IN PARAS 2.4 AND 2.5 HAS HELD AS UNDER:- 2.4 COMING TO THE ISSUE OF RECORDING OF SATISFACT ION, IT MAY BE MENTIONED THAT MERE INITIATION OF PENALTY DOES N OT AMOUNT TO SATISFACTION AS HELD BY HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. RAM COMMERCIAL ENTERPRISES LTD. (20 01) 167 CTR (DEL) 321 : (2000) 246 ITR 568 (DEL). IN ABSENC E OF RECORDING OF THE SATISFACTION IN THE ASSESSMENT ORD ER, MERE INITIATION OF PENALTY WILL NOT CONFER JURISDICTION ON THE AO TO LEVY THE PENALTY. 2.5 WE ALSO FIND THAT FINALLY THE ORDER WAS PASSED UNDER S. 143(3) AND NOT UNDER S. 144 OF THE ACT. THIS MEANS THAT SUBSEQUENT COMPLIANCE IN THE ASSESSMENT PROCEEDINGS WAS CONSIDERED AS GOOD COMPLIANCE AND THE DEFAULTS COMM ITTED EARLIER WERE IGNORED BY THE AO. THEREFORE, IN SUCH CIRCUMSTANCES, THERE COULD HAVE BEEN NO REASON TO C OME TO THE CONCLUSION THAT THE DEFAULT WAS WILLFUL. 6. AS THE FACTS OF THIS CASE ARE IDENTICAL, WE H OLD THAT THE IMPOSITION OF PENALTY U/S 271(1)(B) OF THE ACT WAS PATENTLY WRONG, ESPECIALLY IN VIEW OF THE FACT THAT THE IMPUGNED AS SESSMENT ORDER HAS BEEN PASSED U/S 143(3). WHILE SETTING ASIDE TH E IMPUGNED ORDER, WE DIRECT THE ASSESSING OFFICER TO DELETE TH E PENALTY. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE I S ALLOWED. ITA 5737/DEL/2015 ASSESSMENT YEAR 2012-13 THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 20 TH SEPTEMBER, 2017. SD/- SD/- (G.D. AGRAWAL) (SUDHANSHU SRIVASTAVA) PRESIDENT JUDICIAL MEMBER DATED: 20 TH SEPTEMBER, 2017 GS COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER ASSISTANT REGISTRAR