Jodhpur Sahakari Upbhokta Wholesale Bhandar Ltd., JODHPUR V. ACIT, JODHPUR

ITA 607/JODH/2013

• Counselvise Citation: 60723314 RSA 2013
• Duration Of Justice: 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-03-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 04-03-2014
• Assessment Year: 2010-2011
• Appeal Filed On: 27-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR DEEPAK SEHGAL
• Assessee Lawyers: S K BISSA
• Section: 142(1)

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENC H : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO.607/JODH/2013 (A.Y. 2010-11) JODHPUR SAHAKARI UPBHOKTA VS. ACIT , CIRCLE-1, WHOLESALE BHANDAR LTD., JODHPUR. OPP. RAILWAY STATION, C/O S.K. BISSA, NEAR IDBI BANK, 1 ST CHOPASNI ROAD, JODHPUR. PAN NO. AAAAJ 1117 A (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S.K. BISSA. DEPARTMENT BY : DR. DEEPAK SEHGAL - D.R. DATE OF HEARING : 04/03/2014. DATE OF PRONOUNCEMENT : 27/03/2014. O R D E R PER N.K. SAINI, A.M THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDE R DATED 15/10/2013 OF LD. CIT(A), JODHPUR. THE FOLLOWING G ROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. THE LD. CIT(A), JODHPUR HAS GROSSLY ERRED TO CO NFORM THE PENALTY U/S 271(1)(B) OF THE I.T. ACT, 1961 BECAUSE NON-APPEARA NCE BEFORE THE 2 AUTHORITY, EVEN THOUGH THE FACTS AND CIRCUMSTANCES OF THE CASE WERE NOT CONSIDERED AND CONFIRMED THE SAME. LOOKING THE FACTS AND CIRCUMSTANCES OF THE CASE AN D MATERIAL AVAILABLE ON RECORDS AND WITHOUT GIVING THE PROPER OPPORTUNITY THE PENALTY IMPOSED OF RS. 10000/- IS ILLEGAL, AND AGAI NST THE PROVISION OF LAW AND SAME MAY KINDLY BE DELETED. 2. THE ASSESSEE MAY KINDLY BE ALLOWED TO MAKE NECES SARY ALTERNATION, AMENDMENT, ADDITION AND SUBTRACTION IN THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 3. THE ASSESSEE PRAYS FOR JUSTICE. 2 THE ONLY GRIEVANCE OF THE ASSESSEE IN THIS APPEAL RELATES TO THE CONFIRMATION OF PENALTY AMOUNTING TO RS. 10,000/- L EVIED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(B) OF THE I.T. ACT, 19 61 (HEREINAFTER REFERRED TO AS THE ACT IN SHORT). 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSI NG OFFICER ISSUED A NOTICE UNDER SECTION 142(1) OF THE ACT ON 30/07/201 2 TO THE ASSESSEE FIXING THE CASE FOR HEARING ON 14/08/2012. BUT, ON THE SAME DATE, NEITHER ANYBODY ATTENDED NOR ANY REQUEST FOR ADJOUR NMENT WAS MADE. FOR THIS NON-COMPLIANCE, THE ASSESSING OFFICER ISSU ED NOTICE UNDER SECTION 271(1)(B) OF THE ACT ON 22/10/2012. HOWEVER, ON TH E APPOINTED DATE I.E. ON 05/11/2012, NOBODY APPEARED TO REPRESENT THE CAS E NOR ANY ADJOURNMENT WAS SOUGHT. THEREFORE, THE ASSESSING O FFICER LEVIED THE 3 PENALTY OF RS. 10,000/- UNDER SECTION 271(1)(B) OF THE ACT FOR NON- COMPLIANCE OF THE NOTICE UNDER SECTION 142(1) OF TH E ACT. 4. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND SUBMITTED THAT IN THE PAST, THE ASSESSEE HAD MA DE FULL COMPLIANCE OF ALL THE NOTICES ISSUED BY THE DEPARTMENT. IT WAS F URTHER STATED THAT THE ASSESSEE IS A SEMI-GOVERNMENT ORGANIZATION GOVERNED BY THE RAJASTHAN STATE CO-OPERATIVE ACT, 2001 AND DUE TO FREQUENT TR ANSFER OF GENERAL MANAGER OF THE CONCERN, THE STATUTORY NOTICE ISSUED ON 22/10/2012 COULD NOT BE COMPLIED WITH. IT WAS ALSO STATED THAT THE POST OF THE DEPUTY REGISTRAR WAS HELD UNDER ADDITIONAL CHARGE, THEREFO RE, THE ASSESSEE WAS UNABLE TO MAKE COMPLIANCE AFTER 22/10/2012 (WRONGLY MENTIONED AS 12/10/2012). IT WAS CONTENDED THAT NON-COMPLIANCE WAS NOT INTENTIONAL AND THEREFORE, PENALTY SO IMPOSED, MAY BE DELETED. 5. THE LEARNED CIT(A), AFTER CONSIDERING THE SUBMISSI ONS OF THE ASSESSEE, CONFIRMED THE PENALTY LEVIED BY THE ASSES SING OFFICER BY OBSERVING THAT NON-COMPLIANCE OF STATUTORY NOTICE B Y THE SEMI- GOVERNMENT ORGANIZATION ON FLIMSY GROUND WAS NOT AC CEPTABLE RATHER NON-ADHERENCE TO STATUTORY REQUIREMENT BY SUCH ORGA NIZATION SHOULD BE VIEWED SERIOUSLY. NOW THE ASSESSEE IS IN APPEAL. 4 6 . LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE S UBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THERE WERE FREQUENT CHANGES IN THE ORGANIZATION AND THE NOTICE S NEVER CAME TO THE KNOWLEDGE OF GENERAL MANAGER/MANAGER, BUT NON-COMPL IANCE WAS NOT INTENTIONAL AND IN THE PAST ALSO, THERE WAS NO SUCH NON-COMPLIANCE. 7 . IN HIS RIVAL SUBMISSIONS, LEARNED CIT D.R. SUPPOR TED THE ORDERS OF THE AUTHORITIES BELOW. 8 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PA RTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RE CORD. IN THE PRESENT CASE, IT IS TRUE THAT THE ASSESSEE DID NOT COMPLY W ITH THE NOTICE DATED 30/07/2012 ISSUED UNDER SECTION 142(1) OF THE ACT F OR THE HEARING FIXED ON 14/08/2012. THE ASSESSEE EXPLAINED THAT THERE W AS FREQUENT TRANSFER OF DY. REGISTRAR AND THE NOTICE WAS NOT IN THE KNOW LEDGE OF THE GENERAL MANAGER, BUT THERE WAS NO INTENTION TO DISOBEY THE NOTICE ISSUED. IN OUR OPINION, THE EXPLANATION OF THE ASSESSEE IS PLAUSIB LE BECAUSE THIS CONTENTION OF THE ASSESSEE HAS NOT BEEN REBUTTED TH AT THERE WERE FREQUENT TRANSFERS OF THE DY. REGISTRAR AND THE NOT ICE WAS NOT IN THE KNOWLEDGE OF THE GENERAL MANAGER/MANAGER. IN THE P RESENT CASE, IT IS ALSO NOTICED THAT THE ASSESSING OFFICER, IN THE ORD ER PASSED UNDER SECTION 5 271(1)(B) OF THE ACT, HAS MENTIONED THAT THE NOTICE WAS ISSUED TO THE ASSESSEE ON 30/07/2012 TO ATTEND HIS OFFICE ON 14/0 8/2012, HOWEVER, IT IS NOWHERE MENTIONED THAT THE SAID NOTICE WAS SERVED U PON THE ASSESSEE. WE, THEREFORE, CONSIDERING THE TOTALITY OF THE FACT S AND THE PLAUSIBLE EXPLANATION GIVEN BY THE ASSESSEE, ARE OF THE VIEW THAT THE PENALTY LEVIED BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. C IT(A) UNDER SECTION 271(1)(B) OF THE ACT WAS NOT JUSTIFIABLE. ACCORDIN GLY, THE SAME IS DELETED. 9 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. (ORDER PRONOUNCED IN THE COURT ON 27 TH MARCH, 2014). SD/- SD/- (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 27 TH MARCH, 2014. VR/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD.CIT 4. THE CIT(A) 5. THE D.R ASSISTANT REGISTRAR, ITAT, JODHPUR.