SH. GULSHAN JAIN PROP., Amritsar. V. THE Dy. Commissioner of Income Tax, Amritsar.

ITA 594/ASR/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0541 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 01-06-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 13-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K R JAIN
• Keywords: Non compliance
• Section: 143(3); 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH. A.D.JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A NO.594(ASR)/2015 ASSESSMENT YEAR: 2011-12 SH. GULSHAN JAIN PROP. M/S. VEERU MAL MULKH RAJ JAIN, RICE MILLS, JANDIALA GURU, DIST:- AMRITSAR. PAN:AANPJ5174B VS. DY. CIT, CIRCLE-IV, AMRITSAR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. K.R. JAIN (ADV.) RESPONDENT BY: SH. UMESH TAKYAR (DR.) DATE OF HEARING: 01.06.2016 DATE OF PRONO UNCEMENT: 27.07.2016 ORDER PER T. S. KAPOOR (AM): THIS IS AN APPEAL FILED BY ASSESSEE AGAINST THE OR DER OF LEARNED CIT(A), AMRITSAR, DATED 29.09.2015 FOR ASST. YEAR: 2011-12. 2. THE ONLY GRIEVANCE RAISED BY ASSESSEE IS THE ACT ION OF LEARNED CIT(A), BY WHICH HE HAD CONFIRMED THE PENALTY IMPOS ED BY ASSESSING OFFICER U/S 271(1)(B) OF THE ACT. 3. AT THE OUTSET, THE LEARNED AR SUBMITTED THAT ASS ESSEE WAS IMPOSED THE PENALTY FOR NON APPEARANCE BEFORE ASSESSING OFF ICER ON 26.08.2013, WHEREAS THE FACT REMAINS THAT ASSESSEE WENT TO THE OFFICE OF ASSESSING OFFICER ON THE SAID DATE BUT THE ASSESSING OFFICER WAS NOT AVAILABLE AS HE HAD GONE TO CHANDIGARH ON SOME OFFICIAL DUTY. HE SU BMITTED THAT ASSESSING OFFICER IN THE PENALTY ORDER HAS NOTED DO WN THE REPLY OF ITA NO.594 (ASR)/2015 ASST. YEAR : 2011-12 2 ASSESSEE REGARDING NON APPEARANCE BUT HE HAD IMPOSE D THE PENALTY BY CITING SUBSEQUENT NON COMPLIANCES MADE BY ASSESSEE FOR WHICH HE HAD NOT GIVEN ANY NOTICE. IT WAS SUBMITTED THAT ASSESSM ENT WAS COMPLETED U/S 143(3) WHICH ITSELF PROVES THAT ASSESSEE IN SUB SEQUENT HEARINGS APPEARED BEFORE ASSESSING OFFICER. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, IT WAS PRAYED THAT PENALTY CONFIRMED BY LEARNED CIT(A) MAY BE DELETED. 4. THE LEARNED DR, ON THE OTHER HAND, RELIED UPON T HE ORDER OF AUTHORITIES BELOW. 5. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT IT IS A FAC T THAT ASSESSEE WAS ASKED TO MAKE COMPLIANCE OF NOTICE U/S 142(1) VIDE NOTICE DATED 08.08.2013. IT IS ALSO A FACT THAT ON THE DATE OF A PPEARANCE FIXED AT 26.08.2013, THE ASSESSEE HAD NOT APPEARED AND IN RE SPONSE TO FURTHER NOTICE THE ASSESSEE SUBMITTED WRITTEN REPLY IN DAK ON 02.12.2013 STATING THEREIN THAT HE HAD COME TO THE OFFICE OF ASSESSING OFFICER BUT THE ASSESSING OFFICER HAD GONE AWAY TO CHANGIGARH ON SO ME OFFICIAL DUTY. THIS FACT HAS BEEN NOTED BOTH BY ASSESSING OFFICER AND CIT(A) IN THEIR RESPECTIVE ORDERS. THE AUTHORITIES BELOW DID NOT CO NSIDER THE REPLY OF ASSESSEE AND UPHELD THE PENALTY. WE FURTHER FIND T HAT IN THIS CASE ASSESSMENT WAS COMPLETED U/S 143(3) VIDE ORDER DATE D 12.03.2014 AS NOTED BY LEARNED CIT(A) AT PAGE-2 OF HIS ORDER WHIC H PROVES THAT ASSESSEE ITA NO.594 (ASR)/2015 ASST. YEAR : 2011-12 3 DID CO-OPERATE IN THE COMPLETION OF ASSESSMENT PRO CEEDINGS, IN SUBSEQUENT HEARINGS. THEREFORE, IMPOSITION OF PENAL TY FOR NON APPEARANCE ON A PARTICULAR DATE IS NOT JUSTIFIED SP ECIFICALLY, KEEPING IN VIEW THE FACT THAT PURPOSE OF IMPOSITION OF PENALTY IS NOT TO PENALIZE THE ASSESSEE BUT TO PERSUADE HIM TO APPEAR AND CO-OPERA TE WITH THE ASSESSMENT PROCEEDINGS. THE PASSING OF SUBSEQUENT A SSESSMENT ORDERS U/S 143(3) IS A SUFFICIENT INDICATION OF THE FACT T HAT ASSESSEE DID CO- OPERATE IN ASSESSMENT PROCEEDINGS, THEREFORE, IMPOS ITION OF PENALTY U/S 271(1)(B) IS NOT JUSTIFIED. IN VIEW OF THE ABOVE, THE PENALTY CONFIRMED BY LEARNED CIT(A) IS DELETED. 9. IN VIEW OF THE ABOVE, THE APPEAL FILED BY ASSESS EE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 .07.2016. SD/- SD/- (A.D. JAIN) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNT ANT MEMBER DATED:27.07.2016. /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER