Krishi Upaj Mandi Samiti, Guna V. I.T.O., Guna

ITA 59/AGR/2013

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0696 (ITAT-AGRA)
• Duration Of Justice: 6 year(s) 2 month(s) 24 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 23-04-2013
• Assessment Year: misc
• Appeal Filed On: 22-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KK MISHRA
• Assessee Lawyers: GAURAV GOYAL
• Keywords: Depreciation; Period of limitation; Reasonable cause; Unabsorbed depreciation
• Section: 273B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 59/AGRA/2013 ASSTT. YEAR : 2003-04 KRISHI UPAJ MANDI SAMITI, VS. INCOME-TAX OFFICER, SHADORA, DISTT. GUNA. GUNA. (PAN: AAADK 0210 G) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI GAURAV GOYAL, C.A. RESPONDENT BY : SHRI K.K. MISHRA, JR. D.R. DATE OF HEARING : 23.04.2013 DATE OF PRONOUNCEMENT OF ORDER : 03.05.2013 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A), GWALIOR DATED 22.11.2012 FOR THE ASSESSMENT YEAR 20 03-04, CHALLENGING THE CONFIRMATION OF PENALTY U/S. 271(1)(B) OF THE IT AC T. 2. THIS APPEAL IS TIME BARRED BY THREE DAYS WHICH W AS DUE TO LATE DEPOSIT OF FEE, AS EARLIER FEE WAS DEPOSITED UNDER THE DIFFERENT HE AD. THE LD. DR HAS NO OBJECTION FOR CONDONATION OF DELAY. THE EXPLANATION OF THE AS SESSEE IS FOUND SATISFACTORY AND WE ARE SATISFIED THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE IN NOT FILING THE ITA NO. 59/AGRA/2013 2 APPEAL WITHIN THE PERIOD OF LIMITATION. THE DELAY O F THREE DAYS IS, THEREFORE, CONDONED. 3. ACCORDING TO THE AO, THE ASSESSEE IS A LOCAL AUT HORITY AND EARNING INCOME FROM BUSINESS/PROFESSION TO FACILITATE THE TRADING OF FOOD GRAINS AT MANDI PREMISES. THE ASSESSEE-MANDI FILED RETURN OF INCOME DECLARING INCOME AT NIL WITH AN UNABSORBED DEPRECIATION OF RS.99,786/-. THE CASE WA S SELECTED FOR SCRUTINY AND STATUTORY NOTICES U/S. 143(2) WERE ISSUED INITIALLY , WHICH WERE NOT COMPLIED WITH. ON 26.12.2005, THE SECRETARY OF MANDI ATTENDED THE PROCEEDINGS AND WAS DIRECTED TO FILE CERTAIN DETAILS AND CASE WAS ADJOURNED TO 1 2.01.2006 AND ON THAT DATE, NO COMPLIANCE WAS MADE. ACCORDINGLY, PENALTY PROCEEDIN GS WERE INITIATED FOR NON- COMPLIANCE. INITIALLY, THE PROCEEDINGS WERE NOT ATT ENDED, BUT THE ASSESSEE LATER ON FILED REPLY STATING THAT ALL THE INFORMATION IN CON NECTION WITH THE INCOME-TAX NOTICES WERE GIVEN TO THE ASSESSEES COUNSEL. THERE FORE, FROM MANDI SAMITI, NOBODY ATTENDED THE PROCEEDINGS. MANDI SAMITI DOES NOT KNOW HOW THE CASE IS TO BE CONTESTED BY THE COUNSEL AND DUE TO TRANSFER OF MANDI SECRETARY AND CHANGE OF CHARTERED ACCOUNTANT, THE ASSESSEE WAS NOT HAVING I NFORMATION REGARDING THE PROCEEDINGS. THEREFORE, THE ASSESSEE HAS REASONABLE CAUSE FOR NON-APPEARANCE. PENALTY MAY BE WITHDRAWN. THE AO DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AND LEVIED PENALTY OF RS.10,000/- ON THE ASSESSEE F OR NON-COMPLIANCE OF NOTICE. THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE . ITA NO. 59/AGRA/2013 3 4. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AO. ON THE OTHER HAND, THE LD. DR RELIED UPON THE O RDERS OF THE AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. THE LE VY OF PENALTY U/S. 271(1)(B) IS FOR FAILURE TO COMPLY WITH THE STATUTORY NOTICES AND IS SUBJECT TO THE PROVISIONS OF SECTION 273B OF THE IT ACT, WHICH PROVIDES THAT NO PENALTY UNDER THE ABOVE PROVISION SHALL BE IMPOSABLE ON THE PERSON OR THE A SSESSEE, AS THE CASE MAY BE, FOR ANY FAILURE REFERRED TO IN THE SAID PROVISIONS, IF HE PROVES THAT THERE WAS REASONABLE CAUSE FOR THE SAID FAILURE. THE ASSESSEE EXPLAINED BEFORE THE AO THAT SINCE ALL INFORMATION REGARDING INCOME-TAX NOTICES WERE GIVEN TO THE CHARTERED ACCOUNTANT OF THE ASSESSEE-SAMITI, THEREFORE, NOBODY FROM MAND I SAMITI ATTENDED THE PROCEEDINGS BEFORE THE AO AND THAT THEY WERE NOT AW ARE HOW THE CASE HAS TO BE CONTESTED BY THE CHARTERED ACCOUNTANT. THERE WAS AL SO TRANSFER OF MANDI SECRETARY AND DUE TO CHANGE OF CHARTERED ACCOUNTANT, THE ASSE SSEE WAS NOT HAVING KNOWLEDGE AND INFORMATION REGARDING THE PROCEEDINGS . DUE TO THE ABOVE REASONS, THE ASSESSEE PRAYED THAT THE PENALTY PROCEEDINGS MA Y BE DROPPED FOR NON-ACTION ON THE PART OF THE CHARTERED ACCOUNTANT CONCERNED. IT WOULD, THEREFORE, SHOW THAT THE ASSESSEE WAS DEPENDENT UPON THE PERFORMANCE OF THEI R CHARTERED ACCOUNTANT, WHO WAS GIVEN ALL INFORMATION RELEVANT TO THE STATUTORY NOTICES. IT APPEARS THAT THE CONCERNED CHARTERED ACCOUNTANT DID NOT TAKE INTERES T AND THERE WAS NO FULL ITA NO. 59/AGRA/2013 4 COMPLIANCE ON HIS PART. THEREFORE, THERE APPEARS RE ASONABLE CAUSE IN FAVOUR OF THE ASSESSEE FOR FAILURE TO COMPLY WITH THE STATUTORY N OTICES. THE LEVY OF PENALTY IS NOT MANDATORY IN EACH AND EVERY CASE AND IT DEPENDS UPO N THE FACTS AND CIRCUMSTANCES OF THE CASE AND IS DISCRETIONARY IN NATURE. THE EXP LANATION OF THE ASSESSEE CLEARLY SUGGESTS THAT THE AO SHOULD HAVE EXERCISED DISCRETI ON IN FAVOUR OF THE ASSESSEE AND SHOULD HAVE DROPPED THE PENALTY PROCEEDINGS. CONSID ERING THE ABOVE DISCUSSION, THERE APPEARS REASONABLE CAUSE FOR FAILURE TO COMPL Y WITH THE STATUTORY NOTICE, WE CANCEL THE PENALTY AND ALLOW THE APPEAL OF THE ASSE SSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY