CABOCHON ARTS P. LTD, MUMBAI V. DCIT CEN CIR 11, MUMBAI

ITA 5952/MUM/2013

• Counselvise Citation: 595219914 RSA 2013
• Duration Of Justice: 1 year(s) 4 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 07-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIP
• Keywords: Reasonable cause
• Section: 143(3); 142(1)

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL,MUMBAI 'C' BENCH !! ' !! ' !! ' !! ' BEFORE S/SH. RAJENDRA,ACCOUNTANT MEMBER & SANJAY GARG,JUDICIAL MEMBER /. ITA.NO.5952/MUM/2013, # # # # $ $ $ $ / AY.2009-10 M/S CABOCHON ARTS PVT. LTD. G-2B, NARIMAN BHAVAN, GROUND FLOOR, NARIMAN POINT, MUMBAI-21 PAN:AABCC4288 # VS. DCIT, CENTRAL CIRCLE-11, MUMBAI. /. ITA.NO.5954/MUM/2013, # # # # $ $ $ $ / AY.2009-10 M/S OSIAN'S ART FUND, G-2B, NARIMAN BHAVAN, GROUND FLOOR, NARIMAN POINT, MUMBAI-21 PAN:AAATO1513E # VS. DCIT, CENTRAL CIRCLE-11, MUMBAI. /. ITA.NO.5958/MUM/2013, # # # # $ $ $ $ / AY.2009-10 M/S OSETA INVESTMENTS TRUSTEE CO. PVT. LTD., G-2B, NARIMAN BHAVAN, GR.FLOOR,NARIMAN POINT, MUMBAI-21 PAN:AAACO7984N # VS. DCIT, CENTRAL CIRCLE-11, MUMBAI. ( %& / ASSESSEE) ( '(%& / RESPONDENT) #)* + /ASSESSEE BY :SHRI SHEKHAR GUPTA , + / REVENUE BY :SHRI NEIL PHILIP # , *- / DATE OF HEARING : 19-02-2015 ./$ , *- / DATE OF PRONOUNCEMENT : 19-02-2015 # # # # , 1961 , ,, , 254 254 254 254( (( (1 11 1) )) ) *!* 6 *!* 6 *!* 6 *!* 6 ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER BENCH, # # # # : CHALLENGING THE ORDERS OF THE CIT(A)-37,MUMBAI,ASSE SSEES HAVE RAISED IDENTICAL GROUNDS OF APPEAL FOR THE ABOVE MENTIONED ASSESSMENT YEAR(AY.) IN ALL THE GROUP CASES: 1.THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND ON THE FACTS OF THE CASE IN SUSTAINING THE PENALTY U/ S. 271(1)(B) RS. 10,000/-. 2.THE ASSESSEE COMPANY CRAVES LEAVE TO ADD, ALTER O R AMEND THE ABOVE GROUND OF APPEAL. ITA/5952/MUM/2013,AY.2009-10: 2. IN THIS CASE NOTICE U/S 142(1) WAS ISSUED BY THE AS SESSING OFFICER (AO) FIXING THE HEARING ON 05. 12.2011.AS PER THE AO,NOBODY APPEARED IN COMPLIANCE OF THE NOTICE. HE INITIATED PENALTY PROCEEDINGS AS PER THE PROVISIONS OF SECTION 271(1) (B) R.W.S. 274 OF THE ACT. A SHOW-CAUSE NOTICE LETTER,DATED 11.06.2012,WAS ISSUED TO THE ASSESSEE ASKING IT AS TO WHY THE PENALTY SHOULD NOT BE LEVIED,AMOUNTING TO RS. 10,000/-,FOR ALLEGED DEFAUL T COMMITTED BY IT.THE ASSESSEE FILED ITS REPLY VIDE LETTER DATED 18.06.2012.AFTER CONSIDERING THE SAME,HE HELD THAT REASON GIVEN BY THE ASSESSEE WAS NOT ACCEPTABLE AND LEVIED A PENALTY OF RS. 10,0 00/-. 3. AGGRIEVED BY THE ORDER OF THE AO THE ASSESSEE PREFE RRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY(FAA). BEFORE HIM,A COPY OF THE APPELLATE ORDER IN RESPECT OF SIMILAR PENALTY LEVIED BY THE AO ON 03.10.2012 WAS FILED.IT WAS SUBMITTED BEF ORE HIM THAT HIS PREDECESSOR HAD DELETED THE 2 ITA NOS. 5952, 5954 & 5958/MUM/2013 M/S.CABOCHON AR TS PVT. LTD. PENALTY UNDER THE SIMILAR CIRCUMSTANCES RELYING UPO N THE ORDER OF THE AKHIL BHARTIYA PRATHMIK SHIKSHAK SANGH BHAWAN TRUST(115TTJ419) OF THE DELHI BENCH.AFTER CONSIDERING THE PENALTY ORDER AND THE SUBMISSION OF THE ASSESSEE,THE FAA HE LD THAT THE DEFAULT COMMITTED BY THE ASSESSEE WAS 3RD DEFAULT,THAT DESPITE PENALTY LEVIED FOR EAR LIER DEFAULTS IT DID NOT COMPLY WITH THE DIRECTIONS OF THE AO,THAT NO REASONABLE CAUSE WAS SHOWN BY THE ASSESSEE FOR COMMITTING DEFAULT.FINALLY,HE UPHELD THE ORDER OF THE A.O. 4. BEFORE US,AUTHORISED REPRESENTATIVE(AR)STATED THAT THE ASSESSEE HAD APPEARED BEFORE THE AO WHENEVER CALLED,THAT HE DID NOT MARK THE PRESENCE O F THE ASSESSEE IN THE ORDER SHEET,THAT THE ASSESSEE APPROACHED THE ADDL.CIT IN THAT REGARD,THA T AFTER HIS INTERVENTION ONLY THE AO MARKED THE PRESENCE OF THE ASSESSEE,THAT THERE WAS NO DEFA ULT ON PART OF THE ASSESSEE.HE REFERRED TO THE PAGE NO.2 OF THE PAPER BOOK.HE RELIED UPON THE ORDE R OF THE AKHIL BHARTIYA PRATHMIK SHIKSHAK SANGH BHAWAN TRUST(SUPRA).DEPARTMENTAL REPRESENTATI VE (DR) SUPPORTED THE ORDER OF THE FAA AND STATED THAT THE ASSESSEE DID NOT APPEAR ON THRE E OCCASIONS. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.WE FIND THAT THE AO HAD LEVIED PENALTY U/S.271(1)(B)OF THE ACT FOR NON APPEARANCE BEFORE HIM,THAT THE ASSESSEE HAD, VIDE ITS LETTER DATED 18.06.2012,SPECIFICALLY MENTI ONED THAT ITS REPRESENTATIVES WERE MADE TO WAIT OUTSIDE THE OFFICE OF THE AO,THAT THE ADDL.CIT HAD TO INTERVENE IN THE MATTER,THAT THE AO HAD NOT CONTRAVENED THE ASSERTION MADE BY THE ASSESSEE, THAT THE FAA HAS NOT CONSIDERED THAT VITAL ISSUE WHILE DECIDING THE APPEAL,THAT IN THE ASSESSM ENT ORDER THE AO HAS MENTIONED THAT THE AR OF THE ASSESSEE HAS APPEARED BEFORE HIM TIME TO TIM E,THAT THE ASSESSED INCOME IS SAME AS THE RETURNED INCOME.AS THE ASSESSEE HAD APPEARED BEFORE THE AO,SO,THERE WAS NO JUSTIFICATION FOR LEVY OF PENALTY U/S.271(1)(B) OF THE ACT.WE ALSO FI ND THAT THE PREDECESSOR OF THE FAA HAD DELETED THE PENALTY LEVIED BY THE AO U/S. 271(1)(B) OF THE ACT.SECONDLY,IN THE MATTER OF AKHIL BHARTIYA PRATHMIK SHIKSHAK SANGH BHAWAN TRUST (SUPR A),TRIBUNAL HAS BEEN HELD AS UNDER : WHERE ASSESSEE HAD NOT COMPLIED WITH NOTICE UNDER SECTION 142(1) BUT ASSESSMENT ORDER WAS PASSED UNDER SECTION 143(3) AND NOT UNDER SECTION 1 44, THAT MEANT THAT SUBSEQUENT COMPLIANCE IN ASSESSMENT PROCEEDINGS WAS CONSIDERED AS GOOD CO MPLIANCE AND DEFAULTS COMMITTED EARLIER WERE IGNORED BY ASSESSING OFFICER AND, THEREFORE LE VY OF PENALTY UNDER SECTION 271(1 )(B) WAS NOT JUSTIFIED. RESPECFULLY,FOLLOWING THE ABOVE ORDER OF THE DELHI TRIBUNAL AND CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE,WE ARE DECIDING THE EFFEC TIVE GROUND OF APPEAL IN FAVOUR OF THE ASSESSEE. ITA/5954 &5958/MUM/2013,AY.2009-10: 6. THE FACTS AND CIRCUMSTANCES OF BOTH THE GROUP CASES ARE IDENTICAL TO THE FACTS OF THE EARLIER ASSESSEE. FOLLOWING OUR ORDER AT PARAGRAPH NO.5,WE DECIDE THE EFFECTIVE GROUND OF APPEAL IN FAVOUR OF THE ASSESSEE. AS A RESULT,APPEALS FILED B Y ALL THE THREE ASSESSEES STAND ALLOWED. 7*8 *#9 #)*9 : ; , !< = > , * ?@ . SD/- SD/- ( !! /SANJAY GARG) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / MUMBAI, A# /DATE: 19.02.2015 SK 3 ITA NOS. 5952, 5954 & 5958/MUM/2013 M/S.CABOCHON AR TS PVT. LTD. 6 6 6 6 , ,, , '*B '*B '*B '*B CB$* CB$* CB$* CB$* / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / %& 2. RESPONDENT / '(%& 3. THE CONCERNED CIT(A)/ D E , 4. THE CONCERNED CIT / D E 5. DR C BENCH, ITAT, MUMBAI / BF! '*# , . . . 6. GUARD FILE/ ! 7 (B* '* //TRUE COPY// 6# / BY ORDER, G / ? DY./ASST. REGISTRAR , /ITAT, MUMBAI