Arambagh Foreign Liquor, Hooghly V. ITO, WD-2(4), KOLKATA, Kolkata

ITA 608/KOL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1637 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 9 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-02-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 06-04-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: G H SEEMA
• Assessee Lawyers: SARNATH GHOSH
• Keywords: Opportunity of being heard; Reasonable cause
• Section: 142(1)

Judgement Text

1 ITA NO.608/KOL/2016 ARAMBAGH FOREIGN LIQUOR., AYS- 2011-12 , D , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: KOL KATA () .., . ' # $% % , '() [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] I.T.A. NO. 608/KOL/2016 ASSESSMENT YEAR: 2011-12 ARAMBAGH FOREIGN LIQUOR (PAN:AABAA1579J) VS. INCOME-TAX OFFICER, WD-2(4), HOOGHLY APPELLANT RESPONDENT DATE OF HEARING 15.01.2018 DATE OF PRONOUNCEMENT 02.02.2018 FOR THE APPELLANT SHRI SARNATH GHOSH, ADVOCATE FOR THE RESPONDENT SHRI G. H. SEEMA, ADDL. CIT ORDER PER SHRI A.T.VARKEY, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-6, KOLKATA DATED 11.01.2016 FOR AY 2011-12 CONFIRMING THE PENA LTY IMPOSED BY THE AO U/S. 271(1)(B) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED T O AS THE ACT). 2. THE ONLY ISSUE IN DISPUTE IS AGAINST THE ACTION OF LD. CIT(A) IN CONFIRMING THE IMPOSITION OF PENALTY OF RS.10,000/- U/S. 271(1)(B) OF THE ACT. BRIEF FACTS OF THE CASE ARE THAT NOTICES U/S. 143(2) AND 142(1) OF THE ACT WERE ISSUED AND DULY SERVED ON THE ASSESSEE. ACCORDING TO AO, AS PER NOTICE U/S/. 143(2) OF THE ACT DATED 10.09.2012 THE ASSESSEE WAS REQUIRED TO SUBMIT DOCUMENTS, ACCOUNT AND OTHER EVI DENCE IN SUPPORT OF THE RETURN FILED BY HIM HOWEVER IT DID NOT MAKE ANY COMPLIANCE TO THE S AID NOTICE. THEREAFTER, ACCORDING TO AO, HE ISSUED NOTICE U/S. 142(1) DATED 07.05.2013 O F THE ACT, WHICH WAS SERVED ON THE ASSESSEE FOR FURNISHING DETAILS BUT ACCORDING TO AO , ASSESSEE MADE NO COMPLIANCE. HOWEVER, FURTHER NOTICE U/S. 142(1) OF THE ACT ALON G WITH REQUISITION WAS ISSUED ON 12.08.2013 FIXING THE DATE OF HEARING ON 29.08.2013 , ON THAT DATE THE AO ACKNOWLEDGES THAT LD. AUTHORIZED REPRESENTATIVE ON BEHALF OF THE ASSE SSEE APPEARED AND SOUGHT FOR 2 ITA NO.608/KOL/2016 ARAMBAGH FOREIGN LIQUOR., AYS- 2011-12 ADJOURNMENT. THE CASE WAS ADJOURNED TO 20.09.2013. ACCORDING TO AO, ON 20.09.2013 FEW DOCUMENTS WERE SUBMITTED BUT OTHER RELEVANT DOCUMEN TS AS REQUIRED U/S. 142(1) OF THE ACT WERE NOT FILED. THEREAFTER, THE CASE WAS AGAIN REF IXED FOR HEARING ON 04.10.2013 AND 04.11.2013 BUT NO COMPLIANCE WAS MADE. ON 06.11.20 13 PENALTY NOTICE U/S. 271(1)(B) OF THE ACT WAS ISSUED AND SERVED ON THE ASSESSEE TO SH OW CAUSE AS TO WHY PENALTY U/S. 271 SHOULD NOT BE IMPOSED IN THIS CASE. BUT NO COMPLIA NCE WAS ALSO MADE. THEREFORE, THE AO FINDING NO OTHER ALTERNATIVE CONCLUDED THAT IT IS A FIT CASE FOR IMPOSITION OF PENALTY/S. 271(1)(B) OF THE ACT AND HENCE, HE IMPOSED PENALTY OF RS.10,000/- FOR THE AFORESAID NON- COMPLIANCE. ON APPEAL, THE LD. CIT(A) CONFIRMED TH E ACTION OF THE AO IN IMPOSING PENALTY OF RS.10,000/- U/S. 271(1)(B) OF THE ACT. AGGRIEVE D, ASSESSEE IS IN APPEAL BEFORE US. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THR OUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR TH E ASSESSEE SHRI SARNATH GHOSH, ADVOCATE DREW OUR ATTENTION TO THE FACT THAT THE IMPUGNED OR DER OF THE LD. CIT(A) IS AN EX PARTE ORDER AND THAT PENALTY U/S. 271(1)(B) OF THE ACT WAS PASS ED MAINLY BECAUSE OF THE OMISSION ON THE PART OF ACCOUNTANT OF THE ASSESSEE. THE LD. COUNSE L FOR THE ASSESSEE POINTED OUT THAT THE ACCOUNTANT OF THE ASSESSEE WAS SACKED, WHO IN RETAL IATION TOOK AWAY/MISPLACED THE CASH BOOK OF THE ASSESSEE. BECAUSE OF WHICH THERE WAS A DELAY OF TWO AND HALF MONTHS IN PRODUCING THE CASH BOOK BEFORE THE AO. IT WAS ALSO BROUGHT TO OUR NOTICE THAT IN THE ASSESSMENT ORDER, THE AO HIMSELF HAS ACKNOWLEDGED T HAT THE LD. AR OF THE ASSESSEE SHRI SARNATH GHOSH, ADVOCATE HAD APPEARED BEFORE HIM AND HAD DULY FILED DOCUMENTS REQUISITIONED BY HIM. WE ALSO NOTE FROM A PERUSAL OF THE ASSESSMENT ORDER THAT THE LD. AR SHRI SARNATH GHOSH, ADVOCATE USED TO APPEAR BEFORE THE AO AND HAD FILED ALL DOCUMENTS SOUGHT FOR, EXCEPT THE CASH BOOK. WE NOTE THAT THE ORDER IMPUGNED IS AN EX PARTE ORDER AND THE ASSESSEE WANTED TO BRING ON RECORD THE AFFIDAVI T OF THE ASSESSEE TO PROVE THAT THERE WAS REASONABLE CAUSE FOR NOT PRODUCING THE CASH BOOK ON 22.11.2013 BEFORE THE AO. ACCORDING TO LD. AR, SINCE THERE WAS REASONABLE CAUSE FOR NOT APPEARING/PRODUCING THE CASH BOOK SOUGHT FOR BY THE AO, PENALTY IS NOT JUSTIFIED AND SINCE IT IS AN EX PARTE ORDER, THE LD. AR WANTED TO FILE CERTAIN DOCUMENTS LIKE AFFIDAVIT BEF ORE THE LD. CIT(A) TO JUSTIFY AND SHOW THAT REASONABLE CAUSE EXISTED IN HIS CASE AND, THER EBY THE PENALTY IMPOSED ON THE ASSESSEE U/S. 271(1)(B) OF THE ACT CAN BE SUCCESSFULLY DEFEN DED BEFORE THE LD. CIT(A). IN THE LIGHT OF 3 ITA NO.608/KOL/2016 ARAMBAGH FOREIGN LIQUOR., AYS- 2011-12 THE ABOVE SUBMISSION AND FACTS NARRATED ABOVE, WE A RE INCLINED TO SET ASIDE THE ORDER OF LD. CIT(A) AND REMAND THE MATTER BACK TO THE FILE OF LD . CIT(A) TO ADJUDICATE THE APPEAL ON MERITS AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS AT LIBERTY TO FILE AFFIDAVIT OR ANY OTHER DOCUMENTS TO SHOW THAT THERE EXISTED REASONABLE CAUSE FOR NOT APPEARING/PRODUCING DOCUMENTS SOUGHT FOR BY THE AO. WITH THE AFORESAID OBSERVATION, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 02.02.201 8 SD/- SD/- (DR. A. L. SAINI) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 2ND FEBRUARY, 2018 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT ARAMBAGH FOREIGN LIQUOR, C/O SHRI SA RNATH GHOSH, ADVOCATE, SEVEN BROTHERS LODGE, P.O. BUROSHIBTALA, P.S. CHINSURAH, DIST. HOOGHLY, PIN-712105 2 RESPONDENT ITO, WARD-2(4), KOLKATA. 3. THE CIT(A) KOLKATA. 4. 5. CIT KOLKATA DR, ITAT, KOLKATA. / TRUE COPY, BY ORDER, SR. PVT. SECRETARY