NEVILLE TULI, MUMBAI V. DCIT CEN CIR 11, MUMBAI

ITA 5953/MUM/2013

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9402 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 07-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AKHILENDRA YADAV
• Assessee Lawyers: GO VIND AGGARWAL
• Keywords: Non compliance
• Section: 143(3); 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH B, MUMBAI BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER ITA NO. 5953/MUM/2013 ASSESSMENT YEAR: 2009-10 MR. NEVILLE TULLI G-2B NARIMAN BHAVAN NARIMAN POINT, MUMBAI 400 021 PAN:-ABUPT 5432 A VS. DCIT CEN CIR-11 MUMBAI (APPELLANT) (RESPON DENT) ASSESSEE BY : SHRI GOVIND AGGARWAL REVENUE BY : SH RI AKHILENDRA YADAV DATE OF HEARING : 19 .02.2015 DATE OF ORDER : 25 .02.2015 O R D E R PER AMIT SHUKLA, JM: THIS APPEAL HAS BEEN FILED BY THE ASSESSEE, AGAINS T ORDER DATED 12.08.2013, PASSED BY LD. CIT(A)-37, MUMBAI IN RELA TION TO THE PENALTY PROCEEDINGS U/S 271(1)(B) 2. THE ASSESSEE IS MAINLY AGGRIEVED BY LEVY OF PENA LTY OF RS.10,000/- U/S 271(1)(B) ON ACCOUNT OF NON COMPLIANCE OF NOTIC E U/S 142(1), ISSUED ON 28.11.2011 FOR COMPLIANCE ON 05.12.2011. 3. BEFORE THE ASSESSING OFFICER IN RESPONSE TO THE SHOW CAUSE NOTICE FOR LEVY OF PENALTY U/S 271(1)(B), THE ASSESSEE HAD SUBMITTED THAT IT HAS DULY ATTENDED THE OFFICE OF THE AO AND RESPONDED TO THE SAID NOTICE BY HIS REPRESENTATIVE ON 05.12.2011, HOWEVER, THE SAME HAS NOT COME IN ITA NO. 5953/MUM/2013 ASSESSMENT YEAR: 2009-10 2 THE OFFICE RECORD. HOWEVER, THE ASSESSING OFFICER R EJECTED THE ASSESSEES EXPLANATION AND LEVIED THE PENALTY OF RS.10,000/-. 4. BEFORE THE LD.CIT(A), THE ASSESSEE REITERATED TH E SAME AND SUBMITTED THAT THE ASSESSING OFFICER HAS LEVIED THE PENALTY U/S 271(1)(B) FOR NON COMPLIANCE OF THREE NOTICES, FOR WHICH THRE E SEPARATE ORDERS OF PENALTY HAD BEEN PASSED FOR LEVYING PENALTY OF RS.1 0,000/- FOR EACH DEFAULT. IN CASE OF TWO PENALTY ORDERS, THE LD. CIT (A) HAS DELETED THE PENALTY AND THEREFORE, THIS PENALTY SHOULD ALSO BE DELETED. HOWEVER, THE LD. CIT(A) CONFIRM THE PENALTY AFTER OBSERVING AND HOLDING AS UNDER:- 5.1 I HAVE GIVEN MY CAREFUL CONSIDERATION TO THE R IVAL SUBMISSIONS, PERUSED THE MATERIAL ON RECORD AND DUL Y CONSIDERED THE FACTUAL MATRIX OF THE CASE AS ALSO THE APPLICAB LE LEGAL POSITION. 5.2 IT IS SEEN THAT NO OTHER INFORMATION OR SUBMIS SION IS FILED OTHER THAN RELIANCE ON THE APPELLATE ORDER OF THE L D. CIT(A). THIS IS THE THIRD DEFAULT, AS IS SEEN FROM RECORDS, FOR WHICH PENALTY WAS LEVIED. DESPITE PENALTY LEVIED FOR EARLIER DEFA ULTS, THERE WAS NON COMPLIANCE THE THIRD TIME. PENALTY PROCEEDINGS U/S 271(1)(B) IS DISTINCT FROM ASSESSMENT PROCEEDINGS. THE ASSES SING OFFICER HAS TO COMPLETE THE ASSESSMENT PROCEEDINGS WITHIN L IMITATION PERIOD AND IT CANNOT BE THE CAS THAT EVERY ASSESSME NT WILL BE COMPLETED ONLY ON THE LAST DATE. FURTHER, DELAY IN SUBMISSIONS REPEATEDLY HAMPERS THE EFFECTIVE INVESTIGATION AND COMPLETION OF ASSESSMENTS. THIS IS THE CASE OF THIRD DEFAULT AND NOT THE FIRST DEFAULT. NO EXTENUATING CIRCUMSTANCES HAS BEEN INFO RMED FOR THE THIRD DEFAULT, WHICH IS THE SUBJECT MATTER OF THIS APPEAL. IN THESE CIRCUMSTANCES, THE APPEAL IS DISMISSED. 5. BEFORE US, LEARNED COUNSEL SUBMITTED THAT IN RES PONSE TO NOTICE FOR LEVY PENALTY U/S 271(1)(B), THE ASSESSEE VIDE REPLY DATED 09.12.2011, HAD SPECIFICALLY SUBMITTED THAT COMPLIANCE WAS DULY MADE BY THE ASSESSEE IN RESPONSE TO NOTICE U/S 142(1) DATED 28. 11.2011 ON 05.12.2011.THIS IS EVIDENT FROM THE LETTER FILED BE FORE THE AO DATED 09.12.2011. THE SAID COPY HAS ALSO BEEN PLACED BEFO RE US. HE ALSO FILED COPY OF ASSESSMENT U/S 143(3), WHEREIN NEITHER SUCH DEFAULT HAS BEEN ITA NO. 5953/MUM/2013 ASSESSMENT YEAR: 2009-10 3 POINTED OUT BY THE AO, NOR ANY INITIATION OF PENALT Y U/S 271(1)(C) HAS BEEN MENTIONED. 6. ON THE OTHER HAND, LD. DR STRONGLY RELIED UPON T HE ORDER OF THE LD. CIT(A). 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL PLACED ON RECORD. THE IMPUGNED PENALTY HAS BEEN LEV IED FOR NON- COMPLIANCE OF NOTICE U/S 142(1) DATED 28.11.2011 FO R COMPLIANCE ON 05.12.2011. FROM THE PERUSAL OF THE ASSESSMENT ORDE R PASSED U/S 143(3) DATED 12.12.2011, IT IS SEEN THAT, NOWHERE T HE ASSESSING OFFICER HAS MENTIONED THAT ASSESSEE HAS NOT COMPLIED WITH A NY NOTICES ISSUED U/S 142(1). IN FACT IN PARA 2 OF THE ASSESSMENT ORD ER, HE HAS NOTED THAT IN RESPONSE TO THE NOTICES AUTHORIZED REPRESENTATIV E OF THE ASSESSEE, SHRI SHEKHAR GUPTA C.A. HAD ATTENDED AND FILED THE DETAILS AND THE CASE WAS DISCUSSED WITH HIM ON MATERIAL AVAILABLE ON REC ORD. THE ASSESSEES RETURNED INCOME HAS ALSO BEEN ACCEPTED. THERE IS NO MENTION ABOUT ANY NON-COMPLIANCE OF NOTICE OR INITIATION OF PENALTY P ROCEEDING U/S 271(1)(B). ON THE PERUSAL OF THE ASSESSEES REPLY D ATED 09.12.2011 FILED IN RESPONSE TO SHOW CAUSE NOTICE 07.12.2011, THE AS SESSEE HAS STATED AS UNDER:- AT THE OUTSET, WE HAVE TO SUBMIT THAT YOUR GOODSEL F HAS ALREADY LEVIED PENALTY TWICE U/S 271(1)(B) AND THE SAID SHO W CAUSE NOTICE IS FOR THE THIRD TIME FOR LEVY OF PENALTY WHICH IS NOT PROPER ON THE FACTS AND CIRCUMSTANCES OF THE CASE. WE HAVE TO SUBMIT THAT OUR MR. S. GUPTA ALONG WITH MR. LAKSHMI NARAYAN, COMPANY SECRETARY OF THE GROUP, ATTENDED B EFORE YOUR GOODSELF ON 01-12-2011, 05-12-2011 AND 07-12-2011. FURTHER, ON 1-12-2011 AND 05-12-2011, WE WERE AGAIN MADE TO WAI T OUTSIDE FOR ALMOST ONE HOUR AS IN THE PAST. THEREAFTER, YOU DIRECTED YOUR INSPECTOR TO ATTEND TO US. YOUR INSPECTOR RAISED QU ERIES ONLY REGARDING OSIAN'S-CONNOISSEURS OF ART PVT. LTD. AND NO QUERIES ITA NO. 5953/MUM/2013 ASSESSMENT YEAR: 2009-10 4 ARE RAISED IN RESPECT OF OTHER CASES AND EVEN OUR A TTENDANCE WAS NOT RECORDED IN OTHER CASES. IN RESPECT OF ALL THE CASE, THE GROUP HAS FILED DET AILS AS REQUIRED BY YOU EXCEPT IN THOSE CASE WHERE NOTICES U/S 133(6 ) WAS ISSUED AND THE PARTIES HAVE NOT RESPONDED IN WHICH CASES T HE ASSESSEE IS HELPLESS. IN FACT, IN THE CASE OF OSIANS CONNOI SSEURS OF ART PVT. LTD., YOU HAVE FURNISHED COPY OF ACCOUNTS OF 36 PAR TIES FOR RECONCILIATION ONLY ON 05.12.2011, ALTHOUGH REQUEST S WERE MADE MUCH EARLIER. WE HAVE TO FURTHER SUBMIT THAT, ON THE INTERVENTION OF THE ADDITIONAL COMMISSIONER WE AGAIN ATTENDED ON 08.12. 2011, WHEN FOR THE FIRST TIME YOU RECORDED OUR ATTENDANCE AND HAVE COMPLETED ASSESSMENT IN THE CASE OF OSETA INVESTMEN TS TRUSTEE COMPANY PVT. LTD, TULI FOUNDATION OF HOLISTIC EDUCA TION & ART (HEART), SWARAJ TULI AND NEVILLE TULI. IN RESPECT OF OTHER THREE ASSESSEE NAMELY, OSIAN'S ART FUND, OSIAN'S- CONNOISSEURS OF ART PVT. LTD. AND CABOCHON OF ART PVT. LTD., ALL THE DETAILS HAVE BEEN FILED AND THERE IS NO DEFAULT FOR NON ATTENDANCE. HENCE, IN VIEW OF THE ABOVE, WE SHALL REQUEST YOU N OT TO LEVY ANY FURTHER PENALTY. THIS LETTER HAS BEEN ACKNOWLEDGED BY A SEAL FROM T HE OFFICE OF DEPUTY COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE-11, MUMBA I. THE AFORESAID REPLY HAS NOT BEEN REBUTTED BY THE ASSESSING OFFICE R AT ALL, WHEREIN, THE ASSESSEE HAS CATEGORICALLY STATED THAT HE HAS ATTEN DED THE PROCEEDINGS AND HAS ALSO FILED COPIES OF ACCOUNTS AND RECONCILI ATION ON THE DATE MENTIONED I.E. 05.12.2011. ON THESE FACTS, LEVY OF PENALTY BY THE AO FOR NON-COMPLIANCE OF NOTICE AND CONFIRMATION BY THE LD . CIT(A0 IS WHOLLY UNJUSTIFIED AND UNCALLED FOR. ACCORDINGLY, PENALTY LEVIED AND CONFIRMED IS DELETED. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 25 TH DAY OF FEBRUARY, 2015. SD/- SD/- (SANJAY ARORA) (AMIT SHUKLA) ACCOUNTANT MEMBER JUDICIAL MEMBER ITA NO. 5953/MUM/2013 ASSESSMENT YEAR: 2009-10 5 MUMBAI, DATED: 25.02.2015 *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR B BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.